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ab0224364e4cf6562c82f8861d5268d4fa22b2ec45e0f750e9ca587e39fa448d

[2008] EWCA Crim 2952

EWCA_Crim_2952

crown_court

No. 2008/03296/A9 2008/03350/A9 & 2008/03349/A9 Neutral Citation Number: [2008] EWCA Crim 2952 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 26 November 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) LORD JUSTICE TOULSON and MR JUSTICE MADDISON - - - - - - - - - - - - - - R E G I N A - v - RICKY DOUGLAS HAVILL NICHOLAS ANTHONY POWELL JOSEPH ANTHONY GUNNING (JUNIOR ) - - - - - - - - - - - - - - Compu

No. 2008/03296/A9 2008/03350/A9 & 2008/03349/A9 Neutral Citation Number: [2008] EWCA Crim 2952 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 26 November 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) LORD JUSTICE TOULSON and MR JUSTICE MADDISON - - - - - - - - - - - - - - R E G I N A - v - RICKY DOUGLAS HAVILL NICHOLAS ANTHONY POWELL JOSEPH ANTHONY GUNNING (JUNIOR ) - - - - - - - - - - - - - - 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 Wallace appeared on behalf of the Appellant Ricky Havill Mr C Campbell appeared on behalf of the Appellant Campbell Mr R Fortson appeared on behalf of the Appellant Joseph Gunning Mr R A Leach appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T Wednesday 26 November 2008 THE LORD CHIEF JUSTICE: 1. On 28 February 2008 the jury at Wood Green Crown Court in a trial presided over by His Honour Judge Winstanley delivered its verdicts on a seven count indictment against these three appellants. A fourth man, Joseph Gunning Senior (the senior conveniently to distinguish him from Joseph Gunning Junior) was acquitted on all counts. The counts and verdicts were: count 1, possessing a firearm with intent to endanger life, not guilty; count 2, possessing a prohibited firearm, guilty; count 3, possessing a firearm with intent to endanger life, not guilty; count 4, possessing a firearm without a certificate, guilty; count 5, possessing ammunition with intent to endanger life, not guilty; count 6, possessing a firearm without a certificate, guilty; and count 7, possessing ammunition, guilty. On count 8, Powell alone was found not guilty of possession of heroin with intent to supply. 2. The use of the word "firearm" in that brief summary of the indictment is liable to mislead. This was what can only be described as an arsenal of firearms: very dangerous lethal firearms in factory or mint condition, and with ammunition of the same quality. There were 26 handguns in all; the barrels were shorter than 30 centimetres and a length of less than 60 centimetres. They were all prohibited lethal-barrelled weapons. Included in them were 17 Ruger handguns, eleven of which could be fired by pulling the trigger alone, and the other six of which required the hammer to be cocked and the trigger pulled. The serial number of each of the revolvers had been removed. All the ammunition was live and suitable for use in a wide range of firearms. It included a total of 700 rounds of .357 Magnum ammunition designed to expand on impact (known colloquially as "dum dum bullets"). That ammunition could have been used in the 17 Ruger handguns. There were 300 rounds of 9mm Parabellum, 150 rounds of .45 Auto and 149 rounds of .38 Special Calibre ammunition. The .38 ammunition could also have been used in the handguns. The 9mm ammunition was suitable for use in Beretta pistols, and the .45 ammunition could be used in the four Ruger handguns. There were four silencers which are themselves firearms for the purposes of the Firearms Act. 3. The jury's verdicts on counts 1, 3 and 5 were reached on the basis that the Crown had failed to prove that the appellants were in possession of these firearms with intent to danger life, but, as we understand the way in which the case was left to them, the jury had to be sure before they could convict that the defendants knew that the boxes to which we shall refer shortly in this judgment, contained firearms. If the jury was not sure of actual knowledge, they had to acquit. 4. In due course, on 19 May 2008, each of the appellants was sentenced in the same way: on count 2, five years' imprisonment; on counts 4 and 6, four years' imprisonment; and on count 7, five years' imprisonment, all those sentences to run concurrently. Appropriate orders were made for forfeiture and destruction. All three appellants now appeal against sentence. 5. The facts can be summarised in very brief form. On the afternoon of 26 January 2007 police officers were keeping watch on a van which was parked in a car park at a retail park in Enfield. The van had arrived at about 2.30-3.00 in the afternoon and there it remained for some considerable time. It was a work van for which Havill was responsible. It had no business to be in Enfield. It should never have been removed from the borough in London at which he worked. The tracking device on the van was disabled. It was he who had driven the van to the car park. He was accompanied by Gunning Junior in the passenger seat. They remained in the car pack for two to three hours. Shortly after 5.30pm the van drove away from the car park and went to a petrol station. It returned to the car park at about 6pm. 6. In the meantime a Vauxhall Astra car had been driven into the same car park. When the van driven by Havill returned, he parked next to the Vauxhall Astra. Powell, who had driven the Astra to the car park, and Gunning Junior were seen to alight from their respective vehicles. The rear doors of both vehicles were opened and four medium-sized, closed cardboard boxes were transferred from the Astra into the van. Gunning Junior closed the van's doors and he got into it. Powell got into his car. Havill's van then drove away. Police officers stopped that vehicle before it left the car park. Powell was arrested while still in the car park. The guns and ammunition which we have set out earlier in this judgment were found. 7. When interviewed, the appellants all denied any knowledge of the contents of the box. 8. The jury returned verdicts which the judge was bound to accept and to reflect in his sentencing decision. As he put it in his sentencing remarks: "I must and I do respect those verdicts of the jury. The jury were not sure, I take it from their verdicts of acquittal, that you knew firearms were in the cardboard boxes". Having acknowledged the primacy of the jury's verdict, the judge went on to record that he did not believe his respect for the jury's verdict meant that he was obliged to accept "all the detail" of what the appellants had advanced in their cases to the jury. He then summarised the case of each of the appellants and concluded: "You all deliberately closed your eyes, did not want to know what the nature of what it was that you would be collecting or delivering.... .... I am sure that you all realised that there was a risk that what you were collecting or delivering might in some way be illegal. ... I am sure that all three of you had deliberately ensured that you did not know what was in the boxes and that for a few pounds you were prepared to take part in the distribution chain of what may turn out to be highly illegal or dangerous articles .... .... in my judgment, those in possession, as it turns out, of these dangerous items cannot and do not escape criminal [liability] by turning a blind eye to the circumstances of what they choose to involve themselves in .... .... I am sure .... that you knew there was significant risk that you were engaged in some criminal behaviour and, in those circumstances, I am quite sure that it is right to impose deterrent sentences." 9. It is clear that each of the three appellants went to the scene in order to be paid a substantial sum of money by making himself available to provide transport. As it turned out, on the jury's verdict, the appellants did not know that the material they were being asked to transport consisted of this arsenal. However, the reality is that each of the appellants was trusted by those responsible for the delivery of the guns, and by those who hoped to take delivery of the guns, to be circumspect and not to check on the goods. Indeed, if any one of them had bothered to check on the goods, those responsible for the delivery and the collection of the guns could trust them nevertheless neither to hand them to the police nor to inform the police, but to continue with their transportation. So it was that these weapons were taken to a pre-arranged destination and there transferred to another vehicle, which was the next vehicle in the transportation system. 10. Our attention has been drawn to section 51A of the Firearms Act 1968 , as amended by section 287 of the Criminal Justice Act 2003 , which applies to offences committed on or after 22 January 2004. The judge took the view that this provision applied to the decision which he had to make. It provides: "(1) The section applies where -- (a) an individual is convicted of -- [one of the offences of which the appellants were convicted. If so] (2) The court shall impose an appropriate custodial sentence [which is defined for the purpose of the Act as five years' imprisonment in the case of an adult] .... unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so." 11. It was argued in the course of written submissions, and developed succinctly and clearly in oral submissions before us, that the exceptional circumstances envisaged by the Act did arise here. They arose because the appellants did not know that they were in possession of firearms. If that was so, any deterrent element in the sentence addressed by this section was not needed. However, it may be that in any particular case, for example the possession of one out-of-date firearm without appropriate ammunition for it, the imperative when this section is being examined is that the court must consider whether exceptional circumstances have arisen in the context of the whole of the facts of the particular case. 12. The judge here took the view that even if the appellants did not know that they were dealing with this arsenal of firearms, that was because they had deliberately closed their eyes to it. It was a finding he was fully entitled to make; it did not in any way amount to any form of disloyalty to the verdicts of the jury. 13. The short answer to this appeal is simple. If the appellants had known (in the sense which the jury acquitted them) that what they were carrying was truly an arsenal of firearms, a sentence of five years' imprisonment would have been wholly inadequate. It should be remembered that the five year term for the purposes of section 51A is the minimum required term. Without suggesting that this could or would be a test of general application we have asked ourselves whether, irrespective of the statute, this sentence in the circumstances outlined by the judge and in relation to the jury's verdict was manifestly excessive or wrong in principle. Although the appellants had no defence in law to the counts in the indictment of which they were eventually convicted by the jury, the judge was satisfied that they had nevertheless persisted with their "not guilty" pleas in the hope that something might fortuitously turn up to their advantage. There could therefore be no discount for a guilty plea; the case proceeded as a trial. Given what it was that the appellants allowed themselves to become involved in carrying and the fact that they had "turned a blind eye" to what it was they were involved in, in our judgment a sentence of five years' imprisonment, irrespective of the statute, was not in any sense too long. In any event we take the view that the exceptional circumstances envisaged by the statute did not arise in the context of this case and so, whether we approach the matter through the statute or simply stand back from the sentence, in neither situation does the possibility of a manifestly excessive sentence arise. In our judgment these sentences were amply justified. There is no basis therefore for reducing them. 14. There is a further footnote to this judgment. In the case of one of the appellants, material was put before us which may, if drawn to the attention of the prison authorities, amount to compassionate grounds. We do not express any further views. It is for the authorities to decide whether compassionate grounds are established. The appropriate place for those issues to be raised is not with us in the course of today's appeal but with the prison authorities. For that purpose, Mr Campbell, the letter that you have shown to us will be returned to you. MR CAMPBELL: My Lord, I am very grateful.

2008_11_26-1736.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2952/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2952

d4630d93258ea51ecff4bc4015443b4eecf8d9b2e5b7c5afead636dd4daa476c

[2006] EWCA Crim 3187

EWCA_Crim_3187

supreme_court

Neutral Citation Number: [2006] EWCA Crim 3187 Case No: 2003/06451/C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHESTER CROWN COURT MR JUSTICE STEPHEN RICHARDS Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 December 2006 Before : LORD JUSTICE PILL MR JUSTICE FORBES and MR JUSTICE HODGE - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - MAURICE ALAN JOHN LATUS Appellant - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2006] EWCA Crim 3187 Case No: 2003/06451/C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHESTER CROWN COURT MR JUSTICE STEPHEN RICHARDS Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 December 2006 Before : LORD JUSTICE PILL MR JUSTICE FORBES and MR JUSTICE HODGE - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - MAURICE ALAN JOHN LATUS Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR S LINEHAN QC for the Respondent MR A BARKER QC for the Appellant Hearing dates : 23 November 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill: 1. On 19 June 2002 in the Crown Court at Chester before Mr Justice Stephen Richards, Maurice Alan John Latus pleaded guilty to wounding with intent to do grievous bodily harm (Count 5). Two days later, he pleaded guilty on re-arraignment to an offence of manslaughter (Count 3) where murder had been charged. On 3 and 4 July 2002, before the same judge and a jury, he was convicted of attempted murder (Count 4) and wounding with intent to do grievous bodily harm (Count 1). On a separate count of murder (Count 2), separate that is from the killing on which there had been a plea to manslaughter, the jury failed to agree. 2. There was an abortive trial on that count for murder, also at Chester, in February 2000 followed by a further order for re-trial. On 16 October 2003 at the same Crown Court before His Honour Judge Gibbs and a jury, Latus was convicted of that murder. 3. For each of the offences, Latus was sentenced by Judge Gibbs on 16 October 2003 to life imprisonment. The minimum term provided was 16 years. Latus appeals against the conviction for murder on 16 October 2003, by leave of the full court. An extension of time of one year and five months was granted. 4. The ground of appeal is simple to state. The conviction is unsafe, it is submitted, because fresh evidence is available which, if admitted, would establish that the appellant was suffering from diminished responsibility at the time of the killing. The conviction should be for manslaughter. 5. There were three victims; Julian Sanders, Colin Faulkes and the appellant’s mother. Faulkes was the subject of the manslaughter count (Count 3), the offence having been committed in June 2001. The appellant’s mother was the victim of attempted murder (Count 4), the offence having been committed on the day following the killing of Faulkes. Sanders was the victim of wounding with intent (Count 5) on 29 February 2000 and of the murder now in issue, to the facts of which we now turn. 6. From about 1985, the appellant lived in the Gatehouse a house owned by Colin Faulkes in rural Shropshire. The appellant alleged that Faulkes had physically and sexually abused him over many years but that he could not leave the house because he had nowhere to go. His relationship with his mother was difficult. She had re-married a much younger man, a pupil of hers, in the early 1980s. 7. The appellant and the deceased Julian Sanders worked together from 1997 onwards and became friendly. They saw each other fairly frequently. Sanders was admitted to a mental hospital twice in 1999 suffering from a drug induced psychosis. 8. On 29 February 2000, Sanders attended Shrewsbury hospital with wounds to his forehead and the back of his head. There was extensive bruising and swelling at the back of his skull. At the time, he said that he had fallen down a flight of stairs. He was again an inpatient at a mental hospital from early April to late May 2000. 9. Sanders was killed on 27 or 28 May 2000. His body was found at Cofton Park, a grassed area in outer Birmingham. CCTV which normally operated in the area had malfunctioned. The evidence was that Sanders had been killed elsewhere, that the killer had severed the head from the body and travelled to Cofton Park, it was thought by car. 10. The appellant was arrested in October 2000. At interview, he denied any connection with the killing and was released without charge. 11. The prosecution case was that the appellant had hacked Sanders to death with an axe or a heavy implement with a sharp edge. Reliance was placed on evidence that the deceased had telephoned the appellant shortly before he was killed. A watch worn by the deceased a week before his death was in possession of the appellant after the death and the appellant attempted to destroy it. The appellant was seen driving his car on the day on which Sanders was likely to have been killed. Reliance was placed on the guilty plea to wounding Sanders with intent in February 2000 as showing animosity towards him. 12. The defence case was a denial that the appellant was the killer of Sanders. At interview, he had stated that the deceased’s injuries in February 2000 were caused accidentally. The appellant did not give evidence. 13. The sentencing judge on 16 October 2003 had to consider a conviction for manslaughter based on diminished responsibility and a conviction for murder. The offences were committed about a year apart, the murder offence being the earlier in time. When accepting the manslaughter plea in June 2002, Stephen Richards J had before him a report from Dr J D Collins, consultant forensic psychiatrist, based on his knowledge of the appellant as his responsible medical officer. Dr Collins had been given a detailed account by the appellant of his killing of Colin Faulkes. In relation to the killing of Sanders, Dr Collins added: “In relation to the charge Mr Latus is facing in respect of Mr Sanders, I have no medical recommendation to make. He has consistently denied any involvement in the killing. Whilst I think it the case that Mr Latus was suffering from a mental illness at the time of Mr Sanders’ death, he has never said anything about him, which would suggest that Mr Sanders was involved in his delusional system or any other aspect of his mental illness. Under the circumstances, if Mr Latus is convicted of an offence in respect of Mr Sanders, there is no indication at present to suggest that a hospital disposal is appropriate and no bed would be made available for him at Ashworth hospital in relation to this.” 14. When sentencing the appellant in October 2003, the judge acted on the basis of that and subsequent reports from Dr Collins. The subsequent reports dealt only with the Faulkes killing. 15. The appellant sought leave to appeal against his conviction for the murder Sanders, on grounds unconnected with the present ground. His application for leave was refused by the single judge on 15 March 2004. On 29 July 2004, the appellant admitted killing Sanders. He made the admission to his solicitor, giving an account of what he said had happened. The solicitor understandably obtained a further report from Dr Collins. It is this report which the appellant relies as being fresh evidence for the purposes of this appeal. 16. In his report dated 9 November 2005, Dr Collins first confirmed that, before the trial, he advised the appellant that, since he denied killing Sanders, he was “not able to make any decision as to the extent to which [the appellant’s] mental illness had contributed to the offence”. Dr Collins then recorded in detail the account of the killing given to him. Dr Collins asked him, properly and in accordance with his professional duty, why he had not given the account pre-trial and why he had denied involvement in the offence. We will consider later the reasons given by the applicant. 17. The appellant’s description of the killing fitted, in the doctor’s view, the facts insofar as he had been able to establish them and he had no reason to doubt its validity. Dr Collins considered that there was a “striking similarity” in the aggression of the applicant towards Faulkes and Sanders. On the appellant’s account, Sanders was involved in his delusional beliefs in much the same way as was Faulkes and that Sanders was perceived to be persecuting him as an agent for Faulkes. Dr Collins concluded: “Had Mr Latus given these accounts to me before his trial, I would have considered that he was suffering from diminished responsibility”. He said he would have recommended imposition of a hospital order, with restrictions. 18. The prosecution obtained a report from Dr N M J Kennedy, consultant psychiatrist. He too heard the appellant’s account of how Sanders was killed and said that, had he heard that account at the time of the first trial, he would have advised the prosecution to accept a plea of diminished responsibility. He added that when unwell the appellant “represents a grave and immediate danger to the public. There would be a substantial risk of serious violence to anybody about whom he formed paranoid beliefs in the future”. In a short supplementary report, Dr Kennedy stated that, if the appellant was not telling the truth as to the circumstances of the killing, he would still take the view that the appellant was suffering from an abnormality of mind which was “something that would have globally affected his mental functioning to a substantial degree”. 19. On behalf of the appellant, Mr Barker QC seeks leave to call as further evidence, that of Dr Collins just described. Section 23 of the Criminal Appeal Act 1968 provides, insofar as is material: “ (1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice- (a) … (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to- (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. ” 20. It is common ground that the requirements of Section 23(2)(a)(b) and (c) are satisfied. Mr Barker submits that it is necessary and expedient in the interests of justice to receive the evidence and that there is a reasonable explanation for the failure to adduce the evidence at the trial. The appellant should be sentenced on the basis of the up-to-date medical evidence, as to what his mental condition was at the time of the killing of Sanders. It was not adduced at the trial because the appellant sought to deny any involvement in the killing. It is further submitted that the appellant’s mental condition at the time of the offence was such as to affect his responsibility for decisions taken before and at the trial including the decision to deny the killing. 21. For the prosecution, Mr Lineham QC submits that it would subvert the trial process to permit an appellant to mount on appeal an expert case which, if sound, should and could have been advanced before the jury. Further, the current medical opinion depends on acceptance of an account of the killing given by the appellant, the accuracy of which is in issue and is to be seriously doubted. The appellant knew of the partial defence of diminished responsibility because it was adopted, and accepted, in relation to the murder charge involving Faulkes, heard at the same time as the first trial of the murder charge involving Sanders. The appellant had determinedly and persistently lied about his involvement in the killing of Sanders. He had been interviewed under caution in October 2000 for over 4 hours. The appellant answered detailed questions and throughout denied any involvement in the killing. 22. There have been cases in which fresh medical evidence of diminished responsibility has been admitted in this court notwithstanding a denial at trial of involvement in the offence. 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 133 , fresh medical evidence was admitted when a medical report available at the trial was overlooked or not further pursued and the appellant was not consulted about it. However, Lord Taylor of Gosforth CJ stated, 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. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth” 23. In the earlier case in R v Straw [1995] 1 All ER 187 , the court refused leave to call fresh medical evidence when an appellant who was capable in law of taking the decision as to how her case should be put before the jury and, with full advice as to a defence of diminished responsibility, declined to allow it to be put before the court. 24. In R v Neaven [2006] EWCA Crim 955 , this court, Rix LJ presiding, drew, at paragraph 41, this guidance from the authorities: “(1) That the obligation on a defendant 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 offence.” 25. Doubts have been raised by the prosecution as to the accuracy and frankness of the appellant’s present account of how Sanders was killed. The prosecution case remains that it was a deliberate killing, whereas the appellant denies an intention to kill. Doubts have been raised as to the credibility of the entire account now given by him. Evidence, probably including pathological evidence, would be required in any attempt to resolve them. It is not, in our view, necessary or appropriate for this court to attempt to resolve them. 26. The potential relevance of the issue, apart from the issue of whether the appellant had been frank with the court, is that Section 2(1) of the Homicide Act 1957 , which defines the partial defence of diminished responsibility, requires that the abnormality of mind substantially impaired the defendant’s mental responsibility for his acts and omissions in doing or being a party to the killing, the burden of proof being, by virtue of section 2(2) on the defence. The impairment of mental responsibility must be for the “acts in doing the killing”. Until it is decided what those acts were, the link, if any, between the impairment and the killing cannot be established. There is no doubt that Dr Collins, very understandably in our view, was not prepared to express an opinion about diminished responsibility in relation to the charge involving the death of Sanders at the time of the appellant’s trial. 27. That point, however, is not central to our deliberations in this particular case. If the point were to be crucial, the defence would rely on alleged similarities between the killing of Faulkes and the killing of Sanders to establish that, whatever the precise acts, the defence of diminished responsibility should cover both killings. 28. Analysis is required of the appellant’s decisions at the time of the first and the second trial. At the first trial, a plea of diminished responsibility was accepted in the count involving Faulkes. We have no doubt that its possible availability in the count involving Sanders was fully explained to the appellant by his legal advisors. He decided to plead not guilty. He was asked about that when interviewed by Dr Collins prior to him writing his report of 31 October 2005: “When I asked Mr Latus why he had not given this account of the killing to us when he was in Ashworth on remand, and why he had denied any involvement in this offence, he gave me a number of reasons, as follows: 1. He admitted that he was trying to achieve “damage limitation … I hoped to get away with it. There wasn’t much evidence”. 2. He feared that, if he had given this account, people would have thought he was making it up. 3. He thought that this crime was so terrible that people would be horrified by what he had done and not wish to associate with him. At the time of his trial, he was still not really sure whether he had a mental illness or not. He acknowledged that he had been told this often enough at Ashworth, but he was still convinced that he had been repeatedly attacked at night in the caravan and, as far as he was concerned, there was evidence to prove it, eg the pain in his knees and the various marks on his body that he had identified. 4. He said that, whilst he knew that killing someone was wrong, he had thought, at the time, that he was justified as he had been the victim of repeated, serious, unprovoked assaults for many months. However, he did not see any way of making his story seem credible to others. He pointed out that he has never gone to the police either, his view being that, if he had done so, “they would have just laughed me out of the station.” 29. While, under point 3, the question of mental illness was raised, these explanations demonstrate what the prosecution have fairly described as a deliberate tactical decision not to allow the defence of diminished responsibility to be investigated because the appellant believed that he had a good chance of acquittal based on his denial of any responsibility. We cannot accept the submission that it was the mental illness which gave rise to these attempts to evade responsibility. Moreover, the appellant’s conduct after the killing, by way of attempting to dispose of the body and by his persistent denials of involvement tend to confirm the statement he made to Dr Collins that he “hoped to get away with it”. He persisted in his denial following his arrest for the killing of Faulkes and his “hope” succeeded to the extent of a jury disagreement on the Sanders count at the first trial. The appellant persisted in denying involvement at the time of the retrial at which he was convicted and until his application for leave to appeal had been refused. 30. This is not a case in which the decisions made by the court in, for example, Borthwick and Ahluwalia can be followed. In our judgment, no reasonable explanation has been given for the failure to adduce appropriate medical evidence at the trial and it is neither necessary nor expedient in the interests of justice to admit it now. If it is necessary to state it, we state that this involves no criticism whatever of the conduct of Dr Collins at any stage. We agree with, and apply, the principle stated by Lord Taylor CJ in Ahluwalia , and cited in paragraph 22 above. We note that in Neaven , at paragraph 43, the court, while admitting fresh evidence on the basis that the illness had affected the defendant’s ability to give rational instructions, stated, at paragraph 47: “As stated above, we have no doubt that the principles in favour of one trial and against changing tactics remain of paramount and fundamental importance.” 31. For the reasons given, leave to call further evidence was at the hearing refused. It followed that the appeal was dismissed.

2006_12_19-996.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/3187/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/3187

37183a714b626cfe98081ac0250c804f992f340281f6d2ee4167a29dd2b6bd77

[2012] EWCA Crim 1840

EWCA_Crim_1840

crown_court

Neutral Citation Number: [2012] EWCA Crim 1840 Case No: 201106042D2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE INNER LONDON CROWN COURT MS RECORDER CRANE S20110222 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/08/2012 Before : LORD JUSTICE DAVIS MR JUSTICE BURTON and MR JUSTICE LANGSTAFF - - - - - - - - - - - - - - - - Between : SUMAL & SONS (PROPERTIES) LIMITED Appellant - and ­ THE CROWN (LONDON BOROUGH OF NEWHAM) Respondent - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2012] EWCA Crim 1840 Case No: 201106042D2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE INNER LONDON CROWN COURT MS RECORDER CRANE S20110222 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/08/2012 Before : LORD JUSTICE DAVIS MR JUSTICE BURTON and MR JUSTICE LANGSTAFF - - - - - - - - - - - - - - - - Between : SUMAL & SONS (PROPERTIES) LIMITED Appellant - and ­ THE CROWN (LONDON BOROUGH OF NEWHAM) Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PHILIP RULE (instructed by PGA Solicitors LLP ) for the Appellant . MATTHEW PAUL (instructed by Solicitor, London Borough of Newham ) for the Respondent . Hearing date: 26th July 2012 - - - - - - - - - - - - - - - - Judgment Lord Justice Davis : Introduction 1. On 8 th April 2011 at Stratford Magistrates ‟ Court the appellant, Sumal & Sons (Properties) Limited, was found guilty, after a trial in its absence, of being the owner of a rented property without a licence contrary to section 95(1) of the Housing Act 2004 (“ the 2004 Act ”). The information stated that the offence was committed “on or about 10 th January 2011”. The appellant was committed to the Crown Court for sentence under section 70 of the Proceeds of Crime Act 2002 (“ the 2002 Act ”). 2. On 3 rd October 2011 at the Inner London Crown Court the appellant was sentenced by Ms Recorder Crane as follows: (i) It was fined £2,000.00 (plus Victim Surcharge of £15.00); (ii) It was ordered to pay prosecution costs of £3,821.96; (iii) It was made the subject of a confiscation order under the 2002 Act in the sum of £6,450.83. The total sum due (£12,287.79) was ordered to be paid within six months. 3. Section 80 of the 2004 Act , putting it in general terms, makes provision for the introduction by local authorities of selective licensing of rented residential property in the private sector. This can be achieved by a local authority designating either the whole of its district or an area or areas within its district to such licensing. The Little Ilford Ward of the London Borough of Newham was designated a Selective Licensing Area (“SLA”). On 1 st March 2010 the SLA designation became operative. The designation was publicised in the area of the London Borough of Newham through a campaign in the local press. 4. The appellant has for many years been and is the owner and landlord of 48 Worcester Park Road, Manor Park, Little Ilford, Newham (“the property”). The property, which had been privately rented for a significant period of time, is situated within the SLA. As a result it had to be licensed in accordance with Part 3 of the 2004 Act . 5. An application pack for a licence and covering letter were sent to the appellant on 9 February 2010. There was correspondence. On 15 March 2010 and again on 27 August 2010 and on 9 December 2010 the appellant wrote to the London Borough of Newham asking why the property needed to be licensed; the London Borough of Newham replied, referring to the legislation. In that correspondence, it also drew attention to the financial discounts available if the licence were applied for promptly. It further referred to potential consequences under the 2004 Act of failure to obtain a licence (including a fine, liability to a rent repayment order and restrictions on recovery of possession). It made no mention of possible confiscation proceedings. The property was, it may be added, subsequently inspected by the Council. It was said to have two “Category 1” faults, both denied by the appellant: overcrowding (6 people in a house suitable for 3) and poor heating. However, it was ultimately accepted that the appellant was a fit and proper person to be licensed and had it only applied for a licence for the property at the relevant time one would have been issued for it. In the event, on application eventually made, the London Borough of Newham did indeed issue a licence for the property on 11 July 2011, with effect from 11 April 2011. 6. It appears that the appellant has a considerable number of other properties which it rents out. It apparently has a turnover of over £600,000 p.a. It had no previous convictions of any kind and it was said to be a landlord which complied with all its statutory obligations in renting out properties. Its managing director, Mr Sumal, at the time was, it is also said, experiencing the stress of divorce proceedings and so had significant distractions. 7. The Recorder considered various preliminary arguments to the effect that the proceedings were an abuse of process or were oppressive or were in breach of the appellant ‟ s rights under the European Convention on Human Rights. The Recorder rejected all those points. When she came to pass sentence, the Recorder said this: “As I have already said, the legitimate aim of this legislation and licensing was to prevent landlords who did not have appropriate licences from renting out properties, in order to ensure that properties are rented out appropriately to prevent antisocial behaviour in the area. The defendant knew of the requirement for the licence and failed to apply for it for a number of months, despite repeated reminders. It is important that landlords who are renting out the property meet their obligations under the law.” The Recorder proceeded to impose the fine of £2,000 and also made the order for costs as previously indicated. The Recorder had previously ruled that the appellant had benefited from criminal conduct in the amount of the rent received whilst the property was unlicensed – that being in an agreed amount of £6,450.83 – and she had made a confiscation order accordingly. The Recorder indicated that she had had that in mind in imposing the level of fine and the order for costs as she did. 8. Mr Rule renews all his points in this court. His grounds for disputing the outcome in the court below are many and varied, albeit in some respects overlapping. The ground, however, in respect of which he was actually granted leave by the single judge related to the Court ‟ s imposition of a confiscation order. But before turning to Mr Rule ‟ s arguments, it is appropriate to refer to some of the provisions of the 2004 Act . Housing Act 2004 9. The relevant provisions are contained in Part 3 of the 2004 Act . One of the evident purposes of those provisions was to assist local housing authorities in (amongst other things) improving social conditions and reducing antisocial behaviour in the area of its district or in any area within that district. Section 80 empowers a local housing authority to designate any such area subject to selective licensing, if the specified requirements are met. 10. The scheme is that a house coming within the reach of such provisions must be licensed under Part 3: see s.85. Section 87 provides for applications for licences; and s.88 and s.89 relates to the grant and refusal of licences. Section 90 provides that licences may have conditions attached to them as the Housing Authority may consider appropriate for regulating the management, use or occupation of the house concerned. Section 95 is headed “Offences in relation to licensing of houses under this Part”, and is, in the relevant respects, in these terms: “(1) A person commits an offence if he is a person having control of or managing a house which is required to be licensed under this Part (see section 85(1)) but is not so licensed. (2) A person commits an offence if – (a) he is a licence holder or a person on whom restrictions or obligations under a licence are imposed in accordance with section 90(6), and (b) he fails to comply with any condition of the licence. …. (5) A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding £20,000. (6) A person who commits an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.” 11. Section 96 is headed “Other consequences of operating unlicensed houses: rent repayment orders”. In the relevant respects, section 96 is in these terms: “(1) For the purposes of this section a house is an „unlicensed house ‟ if – (a) it is required to be licensed under this Part but is not so licensed, and (b) neither of the conditions in subsection (2) is satisfied. (2) The conditions are – (a) that a notification has been duly given in respect of the house under section 62(1) or 86(1) and that notification is still effective (as defined by section 95(7) ); (b) that an application for a licence has been duly made in respect of the house under section 87 and that application is still effective (as so defined). (3) No rule of law relating to the validity or enforceability of contracts in circumstances involving illegality is to affect the validity or enforceability of – (a) any provision requiring the payment of rent or the making of any other periodical payment in connection with any tenancy or licence of the whole or a part of an unlicensed house, or (b) any other provision of such a tenancy or licence. (4) But amounts paid in respect of rent or other periodical payments payable in connection with such a tenancy or licence may be recovered in accordance with subsection (5) and section 97. (5) If – (a) an application in respect of a house is made to a residential property tribunal by the local housing authority or an occupier of the whole or part of the house, and (b) the tribunal is satisfied as to the matters mentioned in subsection (6) or (8), the tribunal may make an order (a “rent repayment order”) requiring the appropriate person to pay to the applicant such amount in respect of the housing benefit paid as mentioned in subsection (6)(b), or (as the case may be) the periodical payments paid as mentioned in subsection (8)(b), as is specified in the order (see section 97(2) to (8). (6) If the application is made to the local housing authority, the tribunal must be satisfied as to the following matters – (a) that, at any time within the period of 12 months ending with the date of the notice of intended proceedings required by subsection (7), the appropriate person has committed an offence under section 95(1) in relation to the house (whether or not he has been charged or convicted), (b) that housing benefit has been paid (to any person) in respect of periodical payments payable in connection with the occupation of the whole or any part or parts of the house during any period during which it appears to the tribunal that such an offence was being committed, and (c) that the requirements of subsection (7) have been complied with in relation to the application. …..” 12. Section 97 then goes on to make further provision about rent repayment orders among other things providing this: “97 Further provisions about rent repayment orders (1) This section applies in relation to orders made by residential property tribunals under section 96(5). (2) Where, on an application by the local housing authority, the tribunal is satisfied – (a) that a person has been convicted of an offence under section 95(1) in relation to the house, and (b) that housing benefit was paid (whether or not to the appropriate person) in respect of periodical payments payable in connection with occupation of the whole or any part or parts of the house during any period during which it appears to the tribunal that such an offence was being committed in relation to the house, the tribunal must make a rent repayment order requiring the appropriate person to pay to the authority an amount equal to the total amount of housing benefit paid as mentioned in paragraph (b). This is subject to subsections (3), (4) and (8). …… (5) In a case where subsection (2) does not apply, the amount required to be paid by virtue of a rent repayment order under section 96(5) is to be such amount as the tribunal considers reasonable in the circumstances. This is subject to subsections (6) to (8). …..” 13. Section 98 (headed: “Other consequences of operating unlicensed houses: restriction on terminating tenancies”) provides that no notice seeking a recovery of possession on termination of an assured short-hold tenancy may be given so long as a house remains an unlicensed house. 14. Definitions are provided for the phrases “Person having control” and “Person managing” in s.263 of the 2004 Act as follows (in the relevant respects): “(1) In this Act “person having control” in relation to premises, means (unless the context otherwise requires) the person who receives the rack-rent of the premises (whether on his own account or as agent or trustee of another person) or who would so receive it if the premises were let as a rack-rent. …… (3) In this Act “person managing” means, in relation to premises, the person who, being an owner or lessee of the premises – (a) receives (whether directly or through an agent or trustee) rents or other payments from (i) in the case of a house in multiple occupation, persons who are in occupation as tenants or licensees of parts of the premises; and (ii) in the case of a house to which Part 3 applies (see section 79(2)), persons who are in occupation as tenants or licensees of parts of the premises, or of the whole of the premises; or (b) would so receive those rents or other payments but for having entered into an arrangement (whether in pursuance of a court order or otherwise) with another person who is not an owner or lessee of the premises by virtue of which that other person receives the rents or other payments; and includes, where those rents or other payments are received through another person as agent or trustee, that other person. …… (5) References in this Act to any person involved in the management of a house in multiple occupation or a house to which Part 3 applies (see section 79(2)) include references to the person managing it.” 15. In the present case, as indicated, the house was properly required to be licensed and, as found, was not licensed at the relevant time; albeit in due course, when application was made, a licence was issued. It continues to be agreed that had only the appellant so applied at the relevant time, the licence would have been issued and so no offence would have been committed. Jurisdiction to commit to Crown Court 16. Mr Rule ‟ s first point was to assert that the Crown Court had no jurisdiction to deal with the matter and that the committal for sentence purportedly pursuant to s.70 of the 2002 Act was invalid. The argument is that the Magistrates only have power so to commit in the case of an either way offence: there is simply no such power to commit under s.70 for summary offences only. If that is right, then paragraph 126 of the Explanatory Note to the 2002 Act has misunderstood the section; as have the editors of the well-known textbook in this field, Mitchell, Kennedy and Talbot, at V-008. In our view, it is not right. In our view, His Honour Judge Chapple (at a previous stage of the proceedings) had quite correctly rejected such an argument. 17. Section 6 of the 2002 Act , in the relevant respects, provides as follows: “6. Making of order (1) The Crown Court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that the defendant falls within any of the following paragraphs – (a) he is convicted of an offence or offences in proceedings before the Crown Court; (b) he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act; (c) he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered). ……” Section 70 of the 2002 Act then provides as follows: “70. Committal by Magistrates ‟ Court (1) This section applies if – (a) a defendant is convicted of an offence by a magistrates' court, and (b) the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 6 . (2) In such a case the magistrates' court – (a) must commit the defendant to the Crown Court in respect of the offence, and (b) may commit him to the Crown Court in respect of any other offence falling within subsection (3). (3) An offence falls within this subsection if – (a) the defendant has been convicted of it by the magistrates' court or any other court, and (b) the magistrates' court has power to deal with him in respect of it. (4) If a committal is made under this section in respect of an offence or offences – (a) section 6 applies accordingly, and (b) the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with s.71. (5) If a committal is made under this section in respect of an offence for which (apart from this section) the magistrates' court could have committed the defendant for sentence under section 3(2) of the Sentencing Act (offences triable either way) the court must state whether it would have done so. (6) A committal under this section may be in custody or on bail.” (It may be added that s.97 of the Serious Organised Crime and Police Act 2005 is designed now to confer power on the magistrates to make a confiscation order, in an amount not exceeding £10,000, in the circumstances there specified.) 18. There is absolutely nothing in the wording of s.70 of the 2002 Act to limit its ambit to either-way offences. On the contrary, s.70(1) – as does s.70(3) – quite generally and without qualification refers to “an offence”. There is no justification for writing in words of limitation in the way that Mr Rule ‟ s argument would connote. Mr Rule sought to rely on the provisions of s.70(5) as supporting his argument. In truth, however, those words are against his argument: since they clearly connote by implication that there are other offences which may be so committed to the Crown Court which are not either-way offences coming within s.3(2) of the Powers of Criminal Courts (Sentencing) Act 2000 . The purpose of s.70(5) would appear to relate, in fact, to the extent of the Crown Court ‟ s sentencing powers under the immediately following section, s.71. 19. Accordingly, this preliminary argument fails. Mr Rule did submit that one would expect Parliament to be entirely clear if it were intended that the Crown Court was to deal with an offence which was otherwise summary only. In our view, the statute is indeed entirely clear on this. Abuse and oppression 20. Then Mr Rule sought to argue that the confiscation proceedings should have been stayed and should have been categorised as an abuse of the process. He put his case in various ways. But in the judgment of this court there is nothing in any of them. 21. This particular prosecutor – the local housing authority – may have had no general policy in existence at the time relating to prosecutions and claims for confiscation orders by reference to the 2004 Act . But there is nothing to show that individual consideration was not given in this case to the decision to bring these proceedings and to seek a confiscation order. Mr Rule sought to rely on the fact that a s.16 statement was only produced at a late stage in the Crown Court; and he suggested that the matter had initially simply not been thought through. That is not an inference that can properly be drawn. Further, it is not for a defendant in a case such as this to decide whether or not such a decision is taking a sledgehammer to crack a nut. It was matter for the prosecution to decide in this particular case whether or not to prosecute and whether or not to seek a confiscation order; and the decision to do so was one open to the London Borough of Newham here in the circumstances. 22. The case is quite different from the case of Adaway [2004] EWCA (Crim) 2831, to which Mr Rule referred. That was a case where the prosecution positively contravened its applicable policy criteria. Certainly there may be examples where a stay is justified (see, for example Shabir [2008] EWCA (Crim) 1809, [2009] 1 CAR(S) 84): but that ordinarily is likely to be a relatively rare case. In saying that, we accept that – putting it generally – in prosecutions of what may be called regulatory offences the prosecuting authority may perfectly properly decide not to seek a confiscation order (where one is in principle available) in any particular case. Further, there may be cases where, if such a decision to seek confiscation is made, the court may, on appropriate facts, grant a stay on the ground of oppression. But there was nothing in this present case to require the Recorder to stay these proceedings, and the Recorder was entitled to reject the arguments as she did. Of course, in saying that we acknowledge that certain aspects of Mr Rule ‟ s argument here did to some extent also mirror points he sought to make as to whether there was jurisdiction to make a confiscation order at all. We will come on to that later in this judgment. 23. Mr Rule, however, then sought to complain that it was in any event an abuse for the magistrates' court to commit under s.70 of the 2002 Act when the appellant had received no prior warning of the prosecutor ‟ s intention to pursue a committal for sentence under s.70 and to seek a confiscation order in the Crown Court. Not knowing that, Mr Rule said, the appellant would not have been in a position to make any representations on the matter to the magistrates' court. But Mr Rule could point to no statutory provision requiring the prosecutor to give prior notice to a defendant of its intentions in this regard; and the fact is that the appellant chose not to attend before the magistrates ‟ court or be represented. Under s.70(2) (a) of the 2002 Act , moreover, the magistrates' court was required to commit to the Crown Court on request made. No question of abuse in such circumstances as these can arise. 24. To the extent Mr Rule had his other challenges asserting an abuse in this regard, then, as the Recorder rightly pointed out, they could be (as indeed they were) heard in the Crown Court. So the procedure was fully Article 6 compliant. 25. As to Mr Rule ‟ s other arguments that the confiscation proceedings were disproportionate and in contravention of the European Convention on Human Rights, those add nothing. Parliament here has decided on the terms of the 2002 Act and it is not sought to be said, and cannot be said, that the 2002 Act itself is incompatible with the Convention. The fact that it is capable in some circumstances of giving rise to draconian results is not in itself necessarily a reason for staying proceedings. Again, the Recorder was entitled to reject the argument run in this regard. Sentence 26. Then Mr Rule sought to renew his grounds of challenge to the sentence. He submitted that the fine was excessive. He pointed to the appellant company ‟ s good record, to the fact that it would have got a licence had it applied for one and to the personal distractions of its managing director. He also pointed to the fact that the initial fee, on the introductory terms offered by the London Borough of Newham, as discounted for a five year licence would be £300 if promptly paid, rather than the indicated £500. Failure to apply for a licence has meant, under the publicised procedure, that the appellant would have to pay the full £500 licence fee and moreover that would only be for an initial one year period. So, he submitted, that was quite a significant financial penalty suffered already by virtue of the failure to obtain the licence. 27. The fact remains that the appellant – an experienced, professional landlord – had, in the face of repeated warnings, chosen not to comply with its obligations. Further, there could be no mitigation for a plea as there had been a trial. The company has a substantial turnover of over £600,000 p.a. It is in fact generally not particularly helpful to refer – as happened here in the Crown Court – to other informally reported decisions, to the extent that any can be found, as to the level of fines imposed in this particular Housing Act context – just because the amount of the fine will depend on the particular circumstances of the particular case and also will necessarily be geared to some extent to the ability of the landlord in question to pay a particular amount. Ordinarily, a fine in this context can also properly convey a degree of “sting” geared to a particular landlord ‟ s financial situation. It is to be borne in mind that the maximum fine available in respect of a particular offence under s.95(1) for one particular house is £20,000. It could in fact be said that this fine in this particular case was, given the circumstances, on the moderate side – it may well be in part because, as the Recorder had indicated, she was bearing in mind the amount of the confiscation order. At all events, Mr Rule ‟ s suggestion that the amount of the fine was excessive is unsustainable. His initial suggestion that in this case there should, as a matter of principle, have been a conditional discharge was completely unrealistic. 28. We will come back to deal with the question of the costs of the proceedings in the light of our decision on the main point of this appeal: which is whether or not a confiscation order could validly be made at all in a case of this kind. To that point (the real point in this appeal) we now turn. Benefit from criminal conduct 29. Section 70 of the 2002 Act (which is to be read in the context of sections 6 to 8 of that Act ) is in these terms: “76. Conduct and benefit (1) Criminal conduct is conduct which – (a) constitutes an offence in England and Wales, or (b) would constitute an offence if it occurred in England and Wales. (2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial – (a) whether conduct occurred before or after the passing of this Act ; (b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act . (3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs – (a) conduct which constitutes the offence or offences concerned; (b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned; (c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned. (4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct. (5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. (6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other. (7) If a person benefits from conduct his benefit is the value of the property obtained.” “Property” is very widely defined in s.84. 30. As an initial observation, Mr Rule re-emphasised that the present case involves what he calls a “regulatory offence” – it is not a case of dishonestly obtaining property by dishonest means, such as by the importation of illegal drugs or by the importation of alcohol and tobacco without paying the applicable duties (to take two very familiar examples). That may be so. But it cannot of itself answer the question arising. Whether what may be styled a regulatory offence can, when committed, give rise to the availability of a confiscation order will depend on the terms of the statute or regulations creating the offence, read with the terms of the 2002 Act and set in the context of the facts of the case. 31. It was common ground here that this was not a case of general criminal conduct. 32. As reiterated by the House of Lords in the case of May [2008] UKHL 28 , [2008] 2 CAR 28 ordinarily there are, in this context, three questions for the court: (1) has the defendant benefited from the relevant criminal conduct? If so, (2) what is the value of the benefit; and (3) what sum is recoverable from the defendant? 33. There is no doubt that in general terms – and consistently with the title of the statute – the focus initially is on benefit obtained by reason of criminal conduct (the first stage of May ). In the present case, as we have said, it was agreed that the property was already tenanted before the designation of the SLA and that the appellant would have obtained a licence at the correct time had only it applied for one. It may be that, for that reason, the Recorder held that the benefit was obtained “in connection with” (rather than “as a result of”) the offence committed under s.95(1) of the 2004 Act . It is established that the words “in connection with” as used in s.76(4) of the 2002 Act , widen the meaning of the words “as a result of”: see James and Blackburn [2011] EWCA (Crim) 2991; [2012] 2 CAR (S) 44 at para 49. The court gave an example in that case of what might be covered. The court, however, also stated (as part of its reasoning in that case) that the words “in connection with” must be given a narrow construction: see paragraph 65. In our view, at all events, the availability of confiscation proceedings in the context of an offence under s.95(1) of the 2004 Act cannot depend on the happenstance of whether or not the house in question was already tenanted or whether or not the landlord would have obtained a licence if only he had applied for one at the time (although, of course, such a consideration may be highly relevant on sentence). Either confiscation orders are available in cases of offences under s.95(1) of the 2004 Act or they are not. 34. The Recorder, in her initial ruling, held that “the purpose of the legislation is to prevent landlords who do not have the appropriate licence from renting out properties and in that circumstance the rent was obtained in connection with the failure to obtain a licence”: comments subsequently reflected in her sentencing remarks set out above. Mr Paul, in his submissions, supported that. He said that the rent obtained was obtained unlawfully; and it was unlawful as a consequence of the appellant committing the index offence. 35. If that is right, then plainly a confiscation order could properly be made. But is it right? Section 95(1) taken on its own confines the offence to that of having control of or managing a house which is required to be licensed but is not so licensed. The definitions in section 263 of “a person having control” or “person managing” are, however, wide: and since they focus on the receipt of (or entitlement to receive) rent, they lend initial support to Mr Paul ‟ s submissions. 36. But matters do not stop there. The 2004 Act has to be read as a whole. And within Part 3 of this statute there is express provision, in s.96(3), that no rule of law relating to validity or enforceability of contracts in circumstances of illegality affects the validity or enforceability of the provisions of a tenancy or licence requiring payment of rent or of the other provisions. It follows that such provisions – including the right to recover rent – remain enforceable: at the suit not only of a tenant but also of a landlord, notwithstanding that he has no licence for the house in question. That is inconsistent with the notion that the landlord is unlawfully obtaining rent as a result of or in connection with his breach of s.95(1) . 37. Further, the 2004 Act provides its own code for what may happen in such circumstances. Rent repayment orders may be made by the tribunal, in the circumstances set out in s.96 or s.97 as the case may be, where the landlord has committed an offence under s.95(1) . But that scenario necessarily contemplates that the landlord has (lawfully) in the interim received the rent or housing benefit. (For good measure, a further sanction is imposed by the 2004 Act on the landlord of the unlicensed house, restricting his entitlement to terminate an assured short-hold tenancy). Mr Paul sought, however, to emphasise the words “in circumstances of illegality” in s.96(3). He submitted that the statute was thereby acknowledging that receipt of rent in such circumstances was illegal. But it seems extraordinary to attribute to Parliament an intention that a landlord of an unlicensed house may lawfully seek to recover in civil proceedings rent due under the tenancy whilst at the same time making it a criminal offence actually to receive such rent so recovered. That is not a tenable proposition. 38. We asked counsel if the 2004 Act confers any power on the local housing authority to issue a prohibition order against a landlord from renting out a house while it is unlicensed. We were told that there is none. We were referred to sections 20 and 21 of the 2004 Act which give powers to local housing authorities to make prohibition orders in relation to premises on which there are Category 1 or Category 2 hazards (as defined). But no such power apparently is conferred in respect of a breach of s.95(1) . That too is consistent with a Parliamentary intention that the continuance of the tenancy, and payment and receipt of rent thereunder, is being regarded as lawful. What is unlawful is the failure to obtain a licence. 39. Mr Paul referred us to the case of Nelson, Pashak and Poulet [2009] EWCA (Crim) 1573, [2010] 1 CAR(S) 82. But, while those cases are on their facts illustrative of the potentially harsh consequences that s.76 of the 2002 Act can throw up, they are plainly distinguishable from the present case: in that there property had indeed been obtained as a result of dishonest conduct. It was emphasised in the decision, it may be noted, that there has to be a causal connection. For his part, Mr Rule referred us to Rigby and Bowley [2006] [2006] EWCA (Crim) 1653, [2007] 1 CAR(S) 73. That too was a case on its own facts. There the criminal conduct in question – the confiscation was sought under the Criminal Justice Act 1988 , but the relevant words correspond to s.76(4) of the 2002 Act – was held not to result in benefit. It was held (see para.17) that the increase in share price was “not the proceeds of the offence of which he was convicted nor… the positive consequence of the offending”: and so here in the present case by analogy, says Mr Rule. Nor, in that case, was the continued receipt of salary causally linked to the offending: the defendants continued to be employed despite the offence, not because of it. Again so here, says Mr Rule: the appellant continued to receive rent not because of the s.95(1) offence but in spite of it. There was no sufficient causal connection. There is, in our view, obvious force in Mr Rule ‟ s submissions. 40. As to the case of del Basso [2010] EWCA (Crim) 1119, [2011] 1 CAR (S) 41, to which we were referred, that lends no support to the respondent ‟ s argument. There the defendants continued, for very large profits, to put the land to park and ride use without planning consent and notwithstanding the service of an enforcement notice (thereby committing a criminal offence). They had no lawful entitlement to use the land in this way, but instead deliberately flouted the law in doing so in order to secure a profit (benefit). That is in clear distinction from the present case: where the continuance of the letting and the receipt of rent (in contrast with the failure not to have the house licensed) was not made unlawful by the 2004 Act . Putting it in other words, a licence granted under s.88 of the 2004 Act does not operate to confer on a landlord an entitlement lawfully to receive rent which he does not otherwise have. 41. A yet further difficulty in the respondent ‟ s argument is this. If it were right, then that could mean that an errant landlord could both be liable (aside from any fine) to a rent repayment order under the 2004 Act and also be liable to a confiscation order in respect of the same offending. That would be double jeopardy or double recovery. Mr Paul acknowledged that would be so. But his answer was that “in practice” that would hardly ever happen (and had not happened here). In any case, a local housing authority would “choose one or the other” remedy, he asserted: or, if it elected to pursue both, the courts could then stay the confiscation proceedings as oppressive. That is not a sufficient answer. The very possibility of such a scenario is in itself an indication that Parliament had not intended the confiscation procedure to be available at all. 42. Mr Paul did refer us to the observations of the court in Nelson (at paragraphs 44 and 45), whereby the possibility of both compensation and confiscation in respect of the same offence was acknowledged. But such a “gap in the statutory process”, as it was described (by reference to s.6(6) of the 2002 Act ), does not need to be found here and should not be found here, given the wording of the 2004 Act . It is not readily to be thought that Parliament could have intended a landlord, at least potentially, to be mulcted of more than the total rent he has received during the period the house was unlicensed. (It may also, in fact, be queried why, if confiscation was intended to be available at the behest of a prosecuting local housing authority, it was thought necessary to confer powers of recovery of housing benefit under s.97 at all.) 43. It also does no harm to stand back a little from the intricacies of some of the arguments here. As stated by the House of Lords in Jennings [2008] UKHL 29 ; [2008] 2 CAR 29 at paragraph 13: “It is, however, relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent…” In the present case, having regard to the provisions of the 2004 Act , the continued receipt of the rent was not the product of the appellant ‟ s crime. To impose a confiscation order would in substance, in our view, be in the nature of a fine: and the provisions of s.76 of the 2002 Act , read with the provisions of the 2004 Act , do not permit it. By the continued receipt of rent the appellant did not “obtain” property “as a result of or in connection with” the criminal conduct. 44. Such a conclusion, we might also add, does not deprive the courts, and local housing authorities, of effective sanctions. Quite apart from the remedy of rent repayment orders, fines of up to £20,000 for each offence per house under s.95(1) are authorised by the statute to be imposed: and magistrates can be expected to be robust and to impose suitably severe fines in cases where the circumstances call for robustness and severity. 45. For the avoidance of doubt, it should be stated that the fact that the Crown Court had no power, as this court has decided, to make a confiscation order does not mean that the committal for sentence under s.70 was itself invalid. Mr Rule rightly accepted that. Committal is available “with a view to a confiscation order being considered under section 6 ”. Conclusion 46. It follows that the appeal succeeds to the extent that the confiscation order must be quashed. The various other renewed grounds of application are dismissed. 47. As we have indicated, the fine of £2,000 imposed in the Crown Court can in no way be criticised as excessive. As to the order for costs in the Crown Court, the amount was reasonable in itself. Mr Rule says, however, that an element of time was taken up in the Crown Court in arguing the confiscation point: and on that point he has now been shown to be right. But the appellant took very many points below (even arguing for a conditional discharge) on all of which it lost. And as to the confiscation point, that seems in its present form to have been argued relatively shortly below and only to have been fully developed on appeal to this Court (albeit even then as only one of a number of grounds advanced): indeed, Mr Rule ‟ s ultimate argument was only fully expounded in the course of his submissions before us. In all the circumstances, we vary the order as to costs below only to the extent of substituting a figure of £3,000. As to the costs of this appeal, we will receive counsel ‟ s written submissions before deciding on the appropriate order.

2012_08_08-3035.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1840/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1840

b41933b19505ab8767ce30faf8db9524f737ec5ac2c17e0eedd3b28d377d56d2

[2014] EWCA Crim 1730

EWCA_Crim_1730

crown_court

Neutral Citation Number: [2014] EWCA Crim 1730 Case No: 201300932 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday 8th July 2014 B e f o r e : LORD JUSTICE TREACY MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE LEWIS - - - - - - - - - - - - - - - - R E G I N A v STEVEN (AKA STEVEN EDDIE) MOSES (AKA OLIVER) - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Co

Neutral Citation Number: [2014] EWCA Crim 1730 Case No: 201300932 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday 8th July 2014 B e f o r e : LORD JUSTICE TREACY MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE LEWIS - - - - - - - - - - - - - - - - R E G I N A v STEVEN (AKA STEVEN EDDIE) MOSES (AKA OLIVER) - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Miss R Martin appeared on behalf of the Applicant - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GRIFFITH WILLIAMS: On 18th January 2013 in the Crown Court at Newcastle-upon-Tyne, the applicant was convicted of the rape of "D", a male child under the age of 13 (count 1), the sexual assault of D, a male child under 13 (count 2) and causing or inciting D, a child under 13, to engage in sexual activity (count 3). On 28th February 2013 he was sentenced by the trial judge, the Recorder of Newcastle-upon-Tyne, to concurrent sentences of 15 years, two years and six months respectively, a total sentence of 15 years' imprisonment. The Recorder made other orders all consequential upon the convictions, none of which are material for present purposes. 2. The applicant renews his application for an extension of time in which to appeal conviction and sentence following refusal by the single judge. In a ground of appeal of his own making following the refusal of permission by the single judge, he seeks to adduce fresh evidence. 3. The Sexual Offences (Amendment) Act 1992 applies to this appeal so that nothing is to be reported that might reveal D's identity. 4. D was born in July 2006. He lived with his mother and older brother, "K". He suffered from a speech impediment, had difficulty understanding spoken language and his mental ability was mildly delayed for his age (by more than one year). Nevertheless, he was described at the age of three as a happy and active child. 5. In July 2010, when he was four years old, the applicant formed a relationship with his mother and lived at their address for approximately two months before he was arrested on 13th August 2010 in respect of unrelated matters and remanded in custody. 6. The evidence was that from mid-July 2010 it was noted that D's behaviour started to alter. He often became angry or upset and exhibited sexualised behaviour, particularly when at his nursery. He and his brother went to live with their natural father during 2011, and from May 2012 onwards his step-mother "M" also lived with them. 7. In May 2012 D told his step-mother that he had no friends because he was "naughty and dirty". He explained that "Steve done naughty things to mammy" and that he, D, had done what Steve had done. In June he informed her "Steve used to buy me big presents if I did things to him". In due course the police and social services were informed and D was interviewed on 13th July 2012. 8. D explained that he was sexually abused by the applicant when he was living at their address in 2010. On a number of occasions he had removed his trousers and exposed his backside and his penis to the child. He recalled an occasion when he was sitting in the lounge watching television and the applicant forced his penis into his, D's, mouth. He continued moving his penis about and only stopped when what D thought was "wee" came out (count 1). He described the applicant coming to his room when he was sleeping, pulling down his pyjama bottoms and playing with his penis (count 2). The applicant would also put his hand up D's mother's skirt whilst D was watching and offered to buy D a present if he did the same and touched his mother's knickers (count 3). 9. Following his arrest on 13th August 2012 on suspicion of raping a child, the applicant made no reply. In interview he denied the allegations and suggested that the complainant must have been told what to say by someone else, possibly his natural father. He also suggested the nursery staff had lied about him exhibiting inappropriate behaviour in public. 10. The prosecution case was that D had given a true and accurate account: he had been sexually abused by the applicant during the period when the applicant was living at their address. The Crown relied upon D's account in his ABE interview, on evidence from his step-mother and evidence from staff from D's nursery who described the applicant as behaving inappropriately in public, including fondling D's mother's breasts and putting his hand up her skirt and into her pants. 11. The defence case was that D's account was untrue. He denied ever touching the child in a sexual manner as alleged or at all. He denied that he had exhibited sexual behaviour in front of D or encouraged him to behave in any such way. He gave evidence confirming that he had met D's mother in June/July 2010 and slept at her address two or three nights a week. He said that he had some contact with D, but not much. He was never alone with him at the beginning and never engaged in sexual behaviour in front of D or his brother, or in front of the nursery staff. He denied buying the children gifts, apart from a birthday present for his sixth birthday and bars of chocolate when they went shopping. He said that he never told D to behave in a sexual way towards his mother, he never touched or rubbed his penis, he never placed his own penis in D's mouth and he never exposed himself to D as alleged. He said that he had had limited physical contact with D and denied blowing raspberries on his tummy, as alleged by nursery staff. 12. The issue for the jury was a straightforward factual one: were they sure that the account given by D was true and accurate? 13. The grounds of appeal against conviction drafted by trial counsel have been adopted by Miss Martin, who has appeared for the applicant in this court. We should say that we are grateful to her for her well-focused submissions which have been made with commendable clarity and brevity. 14. The grounds of appeal are, first, that the ABE interview should have been excluded pursuant to the provisions of section 78 of the Police and Criminal Evidence Act 1984 ; secondly, that there was no evidence to support a conviction on count 2; thirdly, that the convictions are unsafe because D, who had a speech impediment, had a mental age of five years at the time of trial when his actual age was six years, and was describing events which had occurred two years earlier in his short life; fourthly, that D, despite being counselled in private by the intermediary and the trial judge, refused to answer defence counsel's questions in cross-examination and so answered defence counsel's questions which had been provided in writing to the judge and had been asked by the judge. 15. Miss Martin's final submission was that while, with the exception of the ground of appeal relating to count 2, the individual grounds may not render any of the convictions unsafe, their cumulative effect supports the conclusion that the applicant did not have a fair trial and so his convictions should be quashed. 16. The complaints about the ABE interview are that there was no evidence of the competency of a child in D's position who was being asked questions about events said to have occurred two years earlier in his short life; there was no intermediary present during the interview. D was asked leading questions and prompted by the interviewing officer by questions which suggested the applicant had done wrong; D was told he had said something else to a police officer to whom he had spoken before in a direct attempt to persuade him to change his account. It was also submitted that there was unfairness because D was being cuddled and reassured throughout the interview by his step-mother. 17. We observe that the issue of D's competence was not raised until the first day of the trial, and then without prior notice. Section 53(1), (2) and (3) 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. (2) Subsection (1) has effect subject to subsections (3) and (4). (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." 18. As the issue had not been raised, the court was not required to determine D's competence in accordance with the provisions of section 54 of the Act, but we observe there was in fact no evidence that D could not understand and answer questions. Indeed, the intermediary instructed for the trial in the Crown Court in her report had stated: "Despite his age, delayed understanding of spoken language and his speech difficulties [D] has the ability to give evidence in court and would benefit from the use of a registered intermediary to maximise the completeness, coherence and accuracy of the evidence given." It is clear that her view was that D was a competent witness. 19. The criticisms of the conduct of the ABE interview were for the most part, if not wholly, accepted. Miss Martin accepted that pursuant to the provisions of section 78 of the Police and Criminal Evidence Act 1984 , the interview should not have been admitted because of those failures to comply with the code "Achieving Best Evidence". Her submission was that the admitted breaches were very significant and could only be addressed by the exclusion of the interview. 20. In his ruling on the application to exclude the interview, the learned judge said: "It is apparent that prior to the interview, he told others about the alleged acts by the defendant; his comments were noted and reported to the Police and the defence have been supplied with those notes. It is right that it is not precisely known what has been said by and to [D] over the interval between the alleged acts and the recorded interview, but there is a good deal of detail from the notes and nursery, school and local authority records, which have all been disclosed to the defence. The defence have identified the various stages in the video recorded interview at which [D] was prompted or reminded that he had said things to another officer. The details of the prompts are set out in the skeleton argument. I have considered them all. It is right to observe that the questioning was, at times, a little clumsy and there were the prompts identified, but at no stage was [D] obviously led into giving any detail and such faults as there were can properly be the subject of argument and legal direction to the jury: in other words, the complaints go to the weight of the evidence, something to be determined by the jury. With hindsight, it is clear that there should have been an intermediary present during the interview and a series of breaks: it is quite apparent that [D]'s attention span, unsurprisingly for a 6 yo boy in his circumstances, made breaks desirable. However, he was able to address all questions in an apparently competent and coherent manner. It is also right, as has been submitted, that there is no evidence as to [D]'s ability, aged six, to remember events almost two years earlier. However, again, this is a matter for the jury to consider in the context of all the evidence and their life experiences. I have considered all the points made by the defence. I am satisfied that the trial process, by questioning, comment and submission by Counsel and by direction by me, can and should properly address the criticism raised. The circumstances of and means by which [D]'s interview was obtained was not inherently unfair and none of the complaints, either individually or in combination are of such a nature or degree that the admission of the evidence of the interview would have such an adverse effect on the fairness of the trial that it should not be admitted." 21. In our judgment, there can be no criticism of the learned judge's approach to that submission. While he did not refer to it, his reasoning is amply supported by the observations of this court in K [2006] 2 Cr App R 10 at paragraphs 23 to 26. We observe that later, in what we consider to be a scrupulously fair summing-up, the Recorder drew the jury's attention to all these criticisms of the interview. 22. Of the other grounds of appeal, no objection was taken at trial to the course followed by the Recorder when D refused to answer questions in cross-examination. That course was, in our judgment, both sensible and pragmatic, and the jury were in due course directed as to their approach to this part of the evidence. 23. The course taken by the learned Recorder reflected the views of this court in Cameron [2001] EWCA Crim 562 at paragraphs 19 to 23. We repeat that the questions asked were the questions drafted by defence counsel and were not questions of the judge's choosing. What matters in the judgment of this court is not who asked the question, but D's answers to them. 24. The submission of no case on count 2 turned on answers of D when he was describing the occasion when the applicant played with his penis when he was in bed. Miss Martin accepted that the interviewing officer clearly misunderstood what D was saying. The evidence was helpfully summarised in the Recorder's Ruling: "The introduction to the passage in question began with the question, 'Has Steve ever seen your willy?, and then [D] said, yes, when he was in the living room, and then said, 'I mean, when - when I was in bed'. And he went on to explain, page 27, 'He was sneaking up, and him ...' - he used the word 'Him' when he meant 'He' - '... and him pulled my pants down'. And the passage goes on, 'Was [K] there?' Answer: 'Mm, but he was asleep'. Police Officer: 'He was asleep? So was it night-time?' 'Erm yeah'. Police Officer: 'And had you been asleep and woke up, or had you just not gone to sleep? And then [D] replied, 10:06:16, 'Erm, I just went ...', and then he demonstrated in the interview, closing his eyes. And he said, 'I just went ...' and closed his eyes, '... a few ...' And then the Police Officer, with nothing more, said this. 'So you were asleep. But did you wake up when Steve sneaked up ...' [D] said, 'No', '... and pulled your pants down?' 'No'. 'You didn't wake up?' 'No'. 'So how do you know what happened, then?' 'Cause I would feel it'." 25. In his written grounds, Mr Callan submitted that on that evidence D was or may have been asleep and so may have been dreaming what had happened, and so there was no evidence of the alleged sexual assault and the count should have been withdrawn from the jury under the second limb of Galbraith [1981] 73 Cr App R 124 . 26. Miss Martin, who adopted that submission, argued that the learned judge in fact substituted his own interpretation of D's evidence. We cannot accept that, and that is clear from the later part of the learned judge's Ruling: "Now, the problem in relation to this whole passage is that at no stage does [D] ever say that he was actually asleep. It is the assumption of the interviewing Police Officer that he did fall asleep, and she was just concerned as to - that he had fallen asleep, whether he had woken up. But what [D] then says and goes on to say in the remainder of the passage is entirely consistent with a child who is in bed, with his eyes closed, but not asleep, and is describing events that take place and that he can feel, with his eyes closed. But he does not actually look and see who it is, what he is doing, what is happening, or what he says is happening to him, which consisted of playing with his willy, rubbing his willy with his hand, and he described, demonstrated a backwards and forwards or side to side-type motion with his hand when he described that. And that it was - he knew it was Steve, because he said,'I know what Steve feel like', and it was not [K] or his Mum, because they would not do it. And then there came a point when he, the person, who he says was Steve, talked once and said, 'Rock-A-Bye Baby'. And he said that at a time that he was playing with his, [D]'s willy. All this leads me to the conclusion that it is perfectly open to a Jury to conclude that he was not asleep at the time this event occurred." 27. In the judgment of this court, that was a correct summary of the evidential position. It was for the jury to decide what had happened. 28. The single judge, in his observations when he refused permission, concluded with these words: "... I find no substance in any of your Grounds of Appeal. Although [D] was very young, and the normal trial process had to be modified in a number of ways, the judge took great care to ensure that your trial was fair. I can find no ground on which it could be argued that any of your convictions is unsafe." 29. With those observations, this court respectfully agrees, and we adopt them. 30. The additional ground of appeal of the applicant's own making is based on an undated signed witness statement of D's mother, who states that D did not want to go to his natural father and got on well with the applicant, who was loving and caring to both D and his elder brother, "K". She states: "I had no concerns with Steven being around my children as he is warm and friendly and caring to be around. I can't tell you enough how much both myself and my children loved having him around but it's the truth. He was a breath of fresh air, he taught [K] to have confidence and not to be scared to ask if he wasn't sure on anything. He was what we all needed, we did things together as a family, played games went out even homework was done as a family." 31. There is extremely limited support for that assessment of the applicant in the evidence of the nursery school manager, who described the applicant as cuddling and kissing D and blowing raspberries on his tummy. But that witness also described the applicant and D's mother behaving in a sexually inappropriate way in public (see above). 32. We have concluded the evidence is not capable of belief but, more importantly, there is no explanation, reasonable or otherwise, for the failure to adduce that evidence at trial. That application would accordingly be refused if we were minded to allow the application for an extension of time, but we are not persuaded there are any arguable grounds to challenge the safety of the conviction. 33. We accordingly refuse the application for an extension of time. 34. We consider the application for leave to appeal against sentence. The submission is that the sentence was manifestly excessive. 35. If we may say so, Miss Martin made her submission with understandable hesitation, recognising as she does that the starting point of 13 years applied to this offending because of D's age and the abuse of trust. We would add that there are additional aggravating factors. They are D's extreme youth and what the sentencing judge referred to as an element of grooming. Additionally, the sentence had to reflect the applicant's overall criminality and culpability. While he had no previous convictions of sexual offending, he had a number of previous convictions. We are not persuaded there are any arguable grounds that the sentences were manifestly excessive.

2014_07_08-3443.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1730/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1730

418382a2a6c0c32d3d2bd4cb7b39e1ba259dc6bf56a78e60dd1684e605789d5a

[2018] EWCA Crim 2189

EWCA_Crim_2189

crown_court

No: 201802356 A2 Neutral Citation Number: [2018] EWCA Crim 2189 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 26 July 2018 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE CARR DBE THE RECORDER OF PRESTON - HIS HONOUR JUDGE BROWN (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHERU DAKARI ALLEN - - - - - - - - - - - - - - - - - - - - - Mr S Cadwaladr appeared on behalf of the Appellant - - - - - - - - - -

No: 201802356 A2 Neutral Citation Number: [2018] EWCA Crim 2189 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 26 July 2018 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE CARR DBE THE RECORDER OF PRESTON - HIS HONOUR JUDGE BROWN (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHERU DAKARI ALLEN - - - - - - - - - - - - - - - - - - - - - Mr S Cadwaladr appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. LORD JUSTICE SIMON: 1. On 5 June 2018, the appellant, who had previously pleaded guilty to a single offence of theft before the magistrates, was sentenced by His Honour Judge Berlin at Wolverhampton Crown Court to a term of 20 months' imprisonment. He appeals against that sentence with the leave of the single judge. 2. The appellant was employed by Caretech Community Services. One of their clients was a young man with learning difficulties, Kyle Griffiths. He did not go out after 6.00 pm and when he did so he was always assisted. The role of Caretech was to help him and to make his life as independent as possible, particularly in relation to financial management. As an employee of Caretech, one of the appellant's tasks was to accompany Mr Griffiths to his bank or a cash point and assist him with the withdrawal of money. Caretech operated a system whereby a log was kept of any money that was withdrawn so there was an audit trail for the cash. 3. In November 2016, it came to their attention that there had been unauthorised withdrawals from Mr Griffiths' account. These had been made after 6.00 pm and so could not have been made by him. It was discovered that the unauthorised withdrawals made between April 2015 and February 2016 amounted to £3,140. 4. The appellant was interviewed on 8 May 2017 and admitted what he had done. He told the police that he had a cocaine habit which had left him with debt problems. He said that the withdrawals had usually been about £150 at a time and that he either did not record the withdrawals or he recorded a lower amount. 5. There was a victim personal statement from Sheryl Tombs, an employee of Caretech, in which she said that she had suspected another member of staff as being involved, as that person had worked most of the same shifts as the appellant when the thefts had occurred. She said that she felt sad for Kyle Griffiths as he had trusted the appellant and they had a good bond. 6. The appellant is aged 26 and was of previous good character. There was a pre-sentence report which referred to his explanation that he had committed the thefts because he had developed a cocaine addiction and could see no alternative way of repaying his debt other than to steal money from Mr Griffiths. At the time of the offence the report recorded the appellant was in an abusive domestic relationship and there were also difficulties with Mr Griffiths in respect of which the appellant felt he was not getting sufficient assistance from Caretech. He expressed remorse for his crime. The author of the report proposed a community order with a rehabilitation activity requirement. The appellant was described as also suitable for unpaid work and curfew requirements. There were in addition references before the sentencing judge, which we have seen, that referred to the appellant's good qualities. 7. In passing sentence, the judge noted that the appellant had pleaded guilty at the earliest possible opportunity to theft over a 10-month period from a vulnerable adult aged 35. The judge noted that the appellant had set out to steal from his victim in what he described as an utterly wicked and systematic way. The judge accepted that the probation service said that this was partly based on resentment of Mr Griffiths' treatment of him and further based on his cocaine problem borne out of depression. However, the offence was based on greed and the greed took hold to the extent that he took almost half of the income of a vulnerable adult every month for a period of 10 months. It was a grotesque breach of trust. 8. The judge went on to describe the crime as sophisticated in the sense that the appellant on three or four occasions altered the figures to show that he had taken a lesser sum than in fact he had taken. On other occasions he did not bother doing that and just took the money. The appellant was able to gain Mr Griffiths' trust because of the nature of the person he was dealing with and he knew that. He was able to use the victim's bank card and PIN number because they were readily available for him to use when he helped Mr Griffiths to remove money from his account lawfully. 9. In mitigation, the judge accepted the appellant's remorse and that he had been depressed but that had to be balanced against judge’s public duty. The crime was, in his view, high culpability, category A, within the guidelines because there was a high degree of trust which the appellant breached in respect of a vulnerable adult. As to harm, whilst this was medium value theft, to someone of that vulnerability living in the way that he was, receiving £700 a money in benefits, the appellant was taking almost half of that for himself over a 10-month period. That was a significant additional harm factor. The offending therefore fell squarely within category 2A, which had a starting point of 2 years with a range of 1 to 3 years. The judge then said this at page 3: I bear in mind that you have no previous convictions, and the other matters that have been urged upon me. But for this matter, the aggravating features bring this to thirty months as my starting point, taking account of those matters. 10. The judge did not elaborate on what those matters were. He then gave full credit and passed the sentence of 20 months' imprisonment. He recognised the significance of the Imposition of Community and Custodial Sentencing guideline but found that the appropriate punishment for this type of offence could only be achieved by immediate custody. 11. Mr Cadwaladr, who appears for the appellant, makes a number of points, but two of them form the basis of the present application. First, he submits it was wrong to place the offending within category 2A of the theft guidelines; the offence should have been placed within category 3A in view of the amount that was stolen: more than £500 but less than £10,000. The provision of the victim’s needs, he submits, was not affected by the theft, and he appears to have been unaware of it. 12. Secondly, he submits that the judge was wrong to take a starting point of 30 months rather than 2 years which is the prescribed starting point for a category 2A offence. Thirdly, he urges that insufficient regard was given to the mitigating factors, including the appellant's good character, and, fourthly, that insufficient regard was given to the recommendation in the pre-sentence report. He submits that the sentence should have been suspended. There had been 2 years between his offending and sentence. He had not offended in that time and had addressed his addiction problem and found new work. 13. In our view, the judge was right to treat this as a serious offence of theft. It was theft by someone who was trusted to care for a vulnerable client and abused that trust. It is the type of crime that undermines trust in those who give devoted care to vulnerable people and who do not succumb to temptation, and it tends to have a wider effect on public confidence in the care system. It may also result, as in this case, in suspicion being cast on those who are entirely innocent. We do not accept that this was an offence that could be properly dealt with by a non-custodial sentence. The judge rightly regarded this as a category A offence because of the breach of trust. 14. The first issue that arises is whether he was right to characterise the offending as category 2 medium harm because there was additional harm due to the appellant taking half of the victim's £700 per month. 15. We accept that what may be a relatively small amount to one person will seem a large amount to another and there is no reason to think that the victim here could easily bear a loss of £3,140 or forgo half of his entitlement. But in the present case, it mattered little whether this fell within category 2A of the guidelines within a starting point of 2 years, or category 3A with a starting point of 1 year's custody and a category range up to 2 years, if the features identified by the judge justified starting at the top of the range. 16. However, instead of taking a starting point of 2 years, the judge adopted a starting point of 30 months because of the unidentified aggravating matters. In our view, the appropriate sentence before giving credit for the plea and one that took into account the mitigating factors to which we have referred was a term of 21 months, that mitigation being his good character and clear remorse, and with full credit for the plea the sentence should have been a term of 14 months' immediate imprisonment. 17. Accordingly, we quash the term of 20 months and substitute a term of 14 months' imprisonment. 18. To that extent, the appeal is allowed.

2018_07_26-4369.xml

allowed

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f6cd705ac63edfaca5b2d48495f9bc7d60d7c17e33561314961f7fffe7a1d99e

[2020] EWCA Crim 467

EWCA_Crim_467

crown_court

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. No. 201904686 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION [2020] EWCA Crim 467 Royal Courts of Justice Friday, 13 March 2020 Before: LORD JUSTICE HADDON-CAVE MRS JUSTICE CARR DBE MR JUSTICE PEPPERALL REGINA V PAUL ROBERT HESSEY REPORTING RESTRICTIONS APPLY: THE SEXUAL OFFENCES (AMENDMENT) ACT 1992 __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ J U D G M E N T MRS JUSTICE CARR: 1 On 29 November 2019 in Derby Crown Court the appellant was convicted of nine counts of sexual offending. 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 . 2 The appellant appeals his conviction on Count 7, being a count of indecent assault contrary to s.14(1) of the Sexual Offences Act 1956 . Count 7 was a multiple incident count of indecent assault by the applicant putting his penis in the vagina of the complainant on at least ten occasions. The incidents occurred during the period December 1996 to December 1998 when the complainant was aged 14 or 15. The offending behaving would have been charged as unlawful sexual intercourse with a girl under 16 contrary to s.6(1) of the Sexual Offences Act 1956 . However, that offence bears a time restriction contained in s.37(2) and para.10 sch.2 of that act: a prosecution for such an offence may not be commenced more than 12 months after the offence charged. That was why the offence was charged with an offence contrary to s.14(1) of the Sexual Offences Act 1956 . 3 Following the decision in R v J [2004] UKHL 42 , the Crown was in fact precluded from prosecuting the appellant for the offence on Count 7 under s.14(1) of the Sexual Offences Act 1956 in such circumstances. Thus, and as the prosecution rightly concedes, Count 7 should never have been on the indictment or allowed to go to the jury. 4 The appeal will accordingly be allowed to this extent. The conviction on Count 7 will be quashed. __________ OPUS 2 DIGITAL TRANSCRIPTION CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital This transcript has been approved by the Judge.

2020_03_13-4860.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/467/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/467

1ceef15242c306c29954e97a81d412043be3c7e82f69c456a5e4ceb97e880ff7

[2008] EWCA Crim 2936

EWCA_Crim_2936

supreme_court

Neutral Citation Number: [2008] EWCA Crim 2936 Case No: 2008/02288 D1 & 2008/02550 A3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT ST ALBANS HH Judge Findlay Baker QC T20077198 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/12/2008 Before : LORD JUSTICE THOMAS MR JUSTICE SWEENEY and RECORDER OF CHESTER (SITTING AS A JUDGE IN THE COURT OF APPEAL CRIMINAL DIVISION - - - - - - - - - - - - - - - - - - - - - Between : Regina Responden

Neutral Citation Number: [2008] EWCA Crim 2936 Case No: 2008/02288 D1 & 2008/02550 A3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT ST ALBANS HH Judge Findlay Baker QC T20077198 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/12/2008 Before : LORD JUSTICE THOMAS MR JUSTICE SWEENEY and RECORDER OF CHESTER (SITTING AS A JUDGE IN THE COURT OF APPEAL CRIMINAL DIVISION - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Kelly Elizabeth Sanchez Appellant REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL’S REFERENCE NO 24 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr L French and Ms C O’Connor for the Appellant Mrs A Evans and Mr P Shaw for the Respondent Mr A Jafferjee, QC appeared on behalf of the Attorney General Hearing date : 13 November 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas : 1. On 26 August 2007 Mark Russell stabbed John Redhead to death at a petrol station in Potters Bar. Although he accepted that he had inflicted the fatal wounds, he pleaded not guilty to murder on the basis that he acted in lawful self defence. He was tried with Kelly Elizabeth Sanchez, who was charged with murder as an aider and abetter. After a trial before His Honour Judge Baker QC and a jury, both Russell and Sanchez were convicted of murder on 26 March 2008. Russell was sentenced to life imprisonment that day and a minimum term of 14 years less time on remand was specified. Sanchez was not sentenced that day but subsequently sentenced to life imprisonment; a minimum term of 3 years less time on remand was specified. 2. There is before the Court an application by Sanchez to appeal against her conviction and Her Majesty’s Attorney-General applies for permission to refer the sentence to this Court on the basis it is unduly lenient. The background 3. Sanchez was at the time 21 years of age. She had been in a relationship with the deceased (a man 20 years her senior) for over a year when in early August 2007, about three weeks prior to the stabbing, she and the deceased broke up their relationship, though Sanchez maintained that they both still loved each other. There was evidence that the relationship had been a stormy one and there had been previous break-ups. 4. After the break-up in August 2007, Sanchez formed a relationship with Russell, a 31 year old, again a man older than her; in contradistinction to her relationship with the deceased, it was seen by both as short term. According to the evidence given at the trial she was sexually attracted to him and she liked to indulge with him in taking cocaine; she had started on her drug habit at the age of 13. After the break-up the deceased left the premises at which they lived and went to live with John Darling. 5. In the period between the break-up and the killing, there was evidence from John Darling of telephone calls between the deceased, Russell and Sanchez. An analysis of the texts sent by Sanchez to the deceased showed they were in many instances abusive of the deceased. 6. In the early hours of 25 August the deceased sent texts to Sanchez stating he still loved her. On the afternoon of Saturday, 25 August, Sanchez and the deceased met at the Green Man Public House in Potters Bar some time between 12.30 and about 2 or 3 p.m. There was evidence that the deceased wanted to resume the relationship but there was an argument. Sanchez then left. 7. She stopped at the house of the mother of one of her friends. The mother, Lisa McCarthy, gave evidence that she was told by Sanchez that the deceased and John Darling had insulted her; that Russell was going to beat the deceased up and she was going to stab John Darling with a screwdriver. She then went to her father’s house and thereafter spent the rest of the afternoon with Russell. They drank and took cocaine. On the evening of that day the deceased sent Sanchez a text which stated, “If you love me come up to The Bridge”, a public house at which Darling worked as a doorman. 8. At about 10.30 p.m. Sanchez arrived at The Bridge where the deceased had been since about 8.30 p.m.; John Darling was working as doorman. Relations were calm between Sanchez and the deceased at first but the evidence was that she began to cry; she claimed that John Darling had abused her and the deceased had done nothing in her defence. Sanchez went outside telling John Darling they were going to get him. She was refused re-admittance to the public house and said, “We’ll be back”. She told him that he was going to get it and drew her finger across her throat. She telephoned Russell. 9. The evidence was that about some 15 minutes later she returned in a car driven by Russell. Russell’s evidence was that before picking up Sanchez Russell had picked up a kitchen knife with a 22 cm blade and taken it with him. He claimed it was in the fly pocket of the baggy trousers he was wearing and it could not be seen because of the jacket he was wearing. The prosecution case was that Sanchez must have seen the knife when she was in the car with him and the next hour she denied it. 10. On reaching The Bridge, Russell threatened John Darling on that occasion from the car and they drove past several times; there was at least one further exchange of words. 11. Between about 11.30 p.m. and 1 a.m. the following morning there was an extensive exchange of texts. i) The exchange between Russell and Sanchez was to the effect of asking her to bring the deceased and John Darling to Russell’s house for a fight. ii) As between the deceased and Russell the exchanges were abusive. In one of the exchanges the deceased told Russell that Sanchez had been begging him to resume their relationship. iii) At 1 a.m. the deceased sent the applicant a text calling her a cunt. 12. Shortly after 1 a.m. Sanchez and Russell drove to the location of John Darling’s house where Sanchez knew the deceased was living. They arrived outside at 1.26 a.m. This was picked up on CCTV cameras. The CCTV stills showed both Sanchez and the appellant outside the car. One of them showed Russell cradling something. 13. At 1.46 a.m. the deceased and John Darling arrived in their car. They had been told that Russell was waiting for them outside John Darling’s house. When they arrived the deceased got out of the car. There was a fight during which Russell stabbed the deceased, leaving a knife in his arm. It was Russell’s evidence that the deceased had a gun, but by their verdict, the jury clearly disbelieved him. There was evidence from John Darling that Sanchez shouted after the deceased had been stabbed by Russell, “Do him as well”, referring to John Darling. 14. Russell did not do that. He got into the car and they drove away. At 2 a.m. Russell was arrested in the company of Sanchez. He told her not to say anything. At the police station she was tearful. There was a conflict of evidence as to whether she said she saw Russell kill the deceased. During her interview she made no comment and read a Harry Potter book. The case against Sanchez 15. The Crown’s case against Sanchez was clear. i) She gave assistance to Russell in directing Russell to the place where he would find the deceased and John Darling. ii) It could be inferred that she encouraged him to kill the deceased from all her actions. THE APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION The grounds 16. There were six grounds on which there was an application for leave to appeal against conviction. i) There was insufficient evidence to leave the case to the jury. ii) The direction by the Judge to the jury was inadequate in relation to identifying the acts said to constitute aiding and abetting. iii) The direction on intoxication was inadequate. iv) The Judge did not give a proper direction in relation to the CCTV evidence and should have advised the jury to proceed with greater caution. v) There was an unacceptable break during the jury’s deliberations over the Easter holiday. vi) An amendment permitted late in the day to the indictment was prejudicial. We will take each of those grounds briefly in turn. Our conclusions on each of the grounds 17. At the end of prosecution case there was a submission of no case to answer. In a clear and full ruling, the Judge set out the 14 reasons as to why there was a case to answer. In essence, apart from the evidence of John Darling, to which we have referred, there was, he concluded, a case based on powerful circumstantial evidence. This comprised the nature of the relationship between the parties, the consumption by Sanchez and Russell of alcohol and cocaine, the events of the evening at and outside The Bridge, her seeking help from Russell, her accompanying Russell to the home of John Darling, an address which she knew, the wait at the petrol station near John Darling’s home, her presence during the attack, her remark in respect of John Darling and her conduct after the event. In addition there was the clear inference from the size of the knife that she must have known Russell had it with him in the car. In our view the Judge correctly identified the salient points of the evidence at the close of the prosecution case. On the basis of that evidence there was a strong case against Sanchez; the fact that it was significantly based on circumstantial evidence did not in any way detract from its strength. In our view the Judge was correct and there was a case to answer; this was not a case where there could be any doubt about that. 18. In his direction to the jury, in our view, the Judge made clear to the jury the acts said to constitute aiding and abetting. In a short and succinct passage the Judge said: “It is said that Miss Sanchez gave assistance in directing Mr Russell to the place where he would find Mr Redhead and Mr Darling and you are invited to infer that she encouraged him in the act of murder as well.” That was in essence the case of the Crown. It was succinctly put. There is no merit in the suggestion that the direction to the jury was inadequate. 19. The Judge gave, as he was required to do on the basis of the evidence, a direction in regard to intoxication. The direction was in standard form but tailored to the facts of the case. There is no arguable ground in respect of that. 20. We have already referred to the importance of CCTV evidence. There were 9 “stills” abstracted from the CCTV camera at timed intervals. It was taken not from a digital recording system but from a tape; the images were not as clear as modern digital systems. However they clearly showed Sanchez outside in one still and Russell in a separate still cradling something. It was suggested that the jury should have been particularly warned to have been careful about the images. The Judge referred to the evidence in fair terms. It was perfectly obvious to the jury that the images were not of the highest quality; it was unnecessary, in our judgment, to point that out to the jury as they were as well aware as anyone else of the quality of the images. 21. There was a break of 6 days over Easter. The jury retired at 3.58 p.m. on Tuesday, 18 March and had a retirement of approximately half an hour that evening. They retired again on Wednesday, 19 March. It became clear on the afternoon of that Wednesday that the jury were unlikely to reach agreement that afternoon. At the close of the afternoon the Judge released the jury until Wednesday, 26 March; the break was necessary because of the public holiday for the Easter Weekend. Before the jury resumed their deliberations on 26 March 2008 the Judge gave a very clear direction to the jury in relation to their ability to ask him to remind them of any part of the evidence or the directions. The jury returned at 11.33 a.m. that same day and gave their verdicts. 22. Matters of jury management are essentially a matter for the trial Judge. The precise timing and length of a trial where a public holiday period intervenes is always difficult to manage. In the circumstances we consider that the Judge did what was entirely reasonable in hearing the two speeches and summing up to the jury and giving them a day to consider the matter before the holiday period intervened. There is no arguable ground in relation to his conduct. 23. The last ground of appeal related to the form of the indictment. What had happened surprised us. The indictment as originally drafted contained two counts. It contained a simple count of murder in respect of Russell and a count of “aiding and abetting murder contrary to common law and s.8 of the Accessories and Abetters Act 1861”. That count was then amended prior to the commencement of the trial so that count 2 was a count of “murder contrary to common law” with the particulars of the offence being that Sanchez had aided and abetted Russell when Russell murdered the deceased. A submission was made after the close of the Crown’s case that the amendment in this form was bad in law. The Judge enquired why the indictment was not in the form of a single count. The Crown applied to amend the indictment so that there was a single count charging murder at common law with the particulars being that Russell had murdered the deceased and that Sanchez had aided and abetted Russell in committing the offence. An objection was taken that this would be prejudicial and should not be permitted. 24. It is clear that throughout, not only in the previous versions of the indictment but in the way the case had been put before the jury, the Crown’s case was that Sanchez was an aider and abetter. We can see no basis upon which it could possibly be argued there was any prejudice to Sanchez in amending the indictment in the way suggested. 25. Each of the grounds put forward has no prospect of success whatsoever. The summing up was characteristically clear, fair and full. The conviction is safe. We refuse leave to appeal. REFERENCE BY THE ATTORNEY GENERAL The Facts 26. After the jury had returned their verdict on Wednesday, 26 March the Judge made clear that in the case of Sanchez he would ask for a pre-sentence report but would sentence Russell immediately. He observed to counsel for Sanchez: “Mr French, I think it may be of assistance both to you and your client if I indicate now that, having given some considerable consideration to my statutory obligations in relation to sentence, I am not minded to adopt any of the statutory starting points in this case.” After counsel for Sanchez had expressed his extreme gratitude for that indication, the Judge proceeded to sentence Russell. It is, we think, of importance to note that the first junior counsel for the Crown, Mrs Evans, was not present when the Judge made the remarks we have set out; the second junior counsel instructed in the case said nothing. 27. A pre-sentence report was prepared. It set out in considerable detail the background of Sanchez and her account of events. 28. The matter came before the Judge for sentence on Friday, 18 April. After short mitigation from counsel for Sanchez, the Judge proceeded to sentence. He set out in very clear terms his findings. They can be summarised as follows: i) Sanchez had had a long-standing relationship with the deceased, a man she had loved, and 20 years her senior; it had broken down; she had started a “fling” with Russell. ii) Although 21, she was emotionally extremely ill-equipped to deal with the changes in her life. iii) She rendered herself less able to deal with the problems by taking drink and Class A drugs on which she had a long-term dependency. iv) She gave some encouragement in the pub and elsewhere for Russell to hurt the deceased but the precise nature of that was unclear. v) She must have known that Russell had taken a large knife from his mother’s home. vi) She was not so far gone as a result of drink and drugs that she did not know that he had in mind at least to cause serious injury to the deceased. vii) She directed Russell to the flat where she knew Redhead would return and waited for his return; she must have been aware that that was an ambush. viii) She played no part in the killing and within a short time afterwards began to realise the enormity of what she had been involved in. ix) The Judge had no doubt that she deeply regretted the part she had played in causing the death of the deceased. She would not have contemplated doing anything to help Russell if she had not been significantly under the influence of alcohol and drugs. Russell was a malign evil influence upon her. 29. The Judge then said: “I have already indicated that I will not take the statutory starting point of the minimum term at 15 years. The reasons for declining to adopt that starting point lie in the secondary role that you played and in the influence Mark Russell seems to have had upon you. However it has to be said that playing any criminal part in the events that lead to the loss of someone’s life has to be taken seriously.” He then imposed the sentence of life imprisonment with a specified term of 3 years, stating that it was the equivalent of a 6 year determinate sentence. The provisions of the Criminal Justice Act 2003 30. It is, we would observe, a matter for very significant regret that counsel for the Crown did not, at any time after the Judge had indicated that he was not going to take a statutory starting point, point out that that was a course that needed to be considered by reference to the Criminal Justice Act 2003 . The provisions are those in ss.269 and 270. S.269(5) requires the court to have regard to the general principles set out in Schedule 21. Under s.270 the court is under a duty to give reasons. S.270(2) provides: “In stating its reasons the court must, in particular – a) state which of the starting points in Schedule 21 it has chosen and its reasons for doing so, and b) state its reasons for any departure from that starting point.” The statutory starting points are set out in Schedule 21; paragraph 6 of the schedule provides that if the case does not fall within what are described as offences where the seriousness is exceptionally high or particularly high then the appropriate starting point in determining a minimum term is 15 years. The statutory framework was recently reviewed in R v Height & Anderson [2008] EWCA Crim 2500 , a court presided over by the Lord Chief Justice of England and Wales. At paragraphs 27-30 the court set out the approach that should be adopted by a Judge. The starting point 31. It was the submission of Mr Jafferjee QC on behalf of Her Majesty’s Attorney General that the approach adopted by the learned Judge had been wrong. The appropriate starting point in this case had been 15 years and the Judge should have started at that point. The course the Judge adopted was not open to him. In his submissions to us, Mr French, on behalf of Sanchez, accepted that submission and that the Judge had fallen into error. 32. Mr Jafferjee QC contended that if the Judge had started at 15 years, then it would have been apparent to him that in comparison to the position of Russell, the minimum term of 3 years which he specified in relation to Sanchez was wholly disproportionate and did not take into account the proper operation of the statutory scheme. He submitted that if the Judge had approached the matter correctly and in accordance with principle, the minimum could not have been less than a term in double figures. 33. On behalf of Sanchez, Mr French submitted that the provisions of Schedule 21 did not deal with the position of a secondary party; a Judge was therefore entitled to approach the position of a secondary party in a flexible manner. We cannot accept that submission. It is quite clear, not the least from the judgment of this court in Height and Anderson , that the approach of a court to a sentence of life imprisonment for murder whether the offender is a principal or a secondary party is governed by the provisions of Schedule 21. Furthermore the type of case where one person inflicts violence, with one or more than one encouraging or assisting him, is not these days uncommon. Although the culpability of the secondary party may in many cases be less than the principal, the sentences must be viewed proportionately in the light of the policy of the law, that he who encourages the commission of a murder or assists with the commission is to be dealt with as a murderer. The specified term 34. In approaching the particular circumstances of this case we have taken into account what the Judge said in relation to Russell. In respect of Russell he found that the killing was a pre-meditated act of aggression, an ambush leading to a vicious multiple stabbing in which he could see no lesser intention than an intention to kill. He also considered that the motivation for the offence was sexual jealousy fuelled by alcohol and cocaine. He then stated: “I have adopted the statutory starting point of 15 years, being of the opinion that your case fits into that category. I treat you as a man who has no relevant other convictions and no record of violence. Although there was an element of pre-meditation in this case that is not inconsistent with there also being an element of impulsiveness. The provocative texts sent by the deceased provides some but really little by way of mitigation.” The Judge then specified a period of 14 years. 35. The position of Sanchez was different on the basis of the Judge’s findings, to which we have referred. However we would observe that although she had not realised that there was an intention to kill, but insofar as the Judge found that in the case of Russell there was an element of pre-meditation, this must also have applied to Sanchez. A lesser specified term was clearly called for in her case but that term cannot have been less than 10 years. No reduction can be made any longer for any element of double jeopardy (see s.36(3a) of the Criminal Justice Act 1988) . We appreciate that the term of 10 years is a low term, but it has to be fixed by us in relation to the minimum term imposed on Russell in respect of which there has been no reference. The term cannot in these circumstances be viewed as guidance for any other case. 36. We therefore quash the specified minimum term of 3 years less time on remand and substitute a specified minimum term of 10 years, less time on remand. Postscript 37. It is self-evident that the effect on any young woman of the magnitude of the increase which we have had to make in this case has been profound. No less has been the distress to the family of the deceased at the proceedings before this Court which have been rendered necessary. There is now clear guidance to prosecutors as to the assistance to which a Judge is entitled in a case. The Judge made clear his intended course. Counsel for the Crown should have drawn to his attention the specific provisions of the 2003 Act . If counsel for the Crown had done this, the Judge would have approached the matter, we have no doubt, in accordance with the statutory provisions and would not have imposed the specified term that he did. 38. A report was published on 4 November 2008 by HM Crown Prosecution Service Inspectorate in respect of the guidelines given by the Attorney General in 2007 in relation to the prosecution role in sentencing when a plea was accepted. It was pointed out that there was a low level of compliance with the guidance given. The obligation of counsel for the prosecution to assist the judge in relation to his powers on sentencing have been made clear for a longer period. This case illustrates a failure of compliance in the discharge of that duty. 39. The course of events in this case is also a poignant reminder of the absolute necessity of counsel for the Crown discharging their duty in this respect and the wholly unnecessary distress this has caused to the family of the victim.

2008_12_05-1748.xml

conviction

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964a384e0781c2b2e0d6f8ec7a0b75b0b8fd9d0f416109c38b9e1ccb40310111

[2020] EWCA Crim 349

EWCA_Crim_349

crown_court

NCN: [2020] EWCA (Crim) 349 No: 201904698 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 11 February 2020 B e f o r e : LORD JUSTICE SIMON MR JUSTICE EDIS MR JUSTICE CHAMBERLAIN REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v DAVID CONTEH Mr P Jarvis appeared on behalf of the Attorney General Mr C Burton appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Eu

NCN: [2020] EWCA (Crim) 349 No: 201904698 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 11 February 2020 B e f o r e : LORD JUSTICE SIMON MR JUSTICE EDIS MR JUSTICE CHAMBERLAIN REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v DAVID CONTEH Mr P Jarvis appeared on behalf of the Attorney General Mr C Burton appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London, EC4A 1JS, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. J U D G M E N T LORD JUSTICE SIMON: 1. The Solicitor General applies, under section 36 of the Criminal Justice Act 1988, for leave to refer sentences passed on the offender, David Conteh, at Inner London Crown Court on 4 December 2019, as unduly lenient. We grant leave. 2. The offender was charged on indictment with eight offences: counts 1 to 5 and 7 charged offences of robbery, contrary to section 8(1) of the Theft Act 1968, counts 6 and 8 charged the offence of having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953. At the plea and trial preparation hearing on 2 August the offender (then and now aged 22) pleaded guilty to count 3 and not guilty to counts 1, 2, 4 and 5 but guilty to theft in the alternative. He pleaded not guilty to count 6 and by an oversight was not arraigned on counts 7 and 8. 3. At a mention hearing on 4 November he changed his plea to guilty on counts 1, 2, 4, 5 and 7 and not guilty to count 8. The trial on counts 6 and 8 was confirmed for 4 December. 4. It was on that day (the first day of the trial) that he pleaded guilty to the two remaining counts. He was sentenced by Mr Recorder Sallon QC to concurrent terms of imprisonment: 18 months on counts 6 and 8, the offensive weapon charges, 3 years on counts 1, 2, 3 and 4 and 4 years on counts 5 and 7 - those collectively being the robbery charges. The overall sentence was a term of 4 years' imprisonment. 5. The charges arose out of a spate of criminality between 15 and 21 April 2019, when the offender robbed a number of shopkeepers occupying convenience stores, making off with alcohol and, on one occasion, with cash from the till. 6. Although there were six robberies there were four direct victims because two of premises were robbed twice. On several occasions violence was used against the shopkeepers. One was struck with a bottle and another grabbed by the throat. On two occasions, on the same day, he took a knife with him and threatened the shopkeepers with it. The offender had previous convictions for robbery and possessing a knife in a public place, and was on licence at the time of the offences. 7. On 15 April 2019 the offender entered a Costcutter supermarket in Tower Bridge Road. He looked at some items on the shelves before he turned and lunged towards alcohol behind the counter. The shopkeeper, Amir Shafiq, tried to stop him. The offender struck him twice on the head with a bottle which caused Mr Shafiq's head to bleed and ripped his jumper. The offender then grabbed three bottles of alcohol worth about £90 and ran out of the shop (count 1). 8. Two days later, on 17 April 2019, the offender entered the same shop. Mr Shafiq was on duty again, and recognised the offender straightaway. The offender said to him: "Give me a bottle. Don't tell the police or I'll beat you". Mr Shafiq was in shock. The offender jumped onto the counter and grabbed a further three bottles of alcohol worth between £60 and £90 and ran off, saying: "Don't tell anyone. Don't tell the police" (count 2). 9. The following day, 19 April, the offender went into Terry's News on Dunton Road SE1 at around 7.20 am. The shopkeeper was Tarun Patel. The offender pretended to peruse the shelves before placing some eggs, beans and soft drinks on the counter. He asked Mr Patel for two expensive bottles of alcohol. Having been the victim of previous robberies at the shop Mr Patel was weary of handing over bottles of alcohol to anyone before receiving payment. He asked the offender to pay, at which point the offender said that his bank cards were in his car, and left. He returned some minutes later. He was pretending to talk loudly on his mobile phone. As soon as the shop was clear of customers he flipped the counter up to get to the alcohol behind it. He grabbed Mr Patel by the throat and said: "Don't move or I'll smash the bottle on your head". With his spare hand he reached into the open till and pulled out £50 in cash. He said to Mr Patel: "Let me get two bottles". Afraid for his safety, Mr Patel replied: "Okay, no problem". Whilst still holding his neck the offender took two bottles of alcohol worth about £60 and ran off (count 3). 10. On 20 April, the offender entered Chris Convenience Store on Dawes Street SE17 at about 7.30 am. The shopkeeper was Sivagi Thambapillai. The offender approached the counter, placed a bottle of soft drink on it and asked Mr Thambapillai for a bottle of white rum. Mr Thambapillai took a bottle from behind the counter and put it down. The offender reached over and grabbed it. There was a struggle during which the offender threw a bottle of soft drink at Mr Thambapillai with force. Mr Thambapillai moved out of the way and the bottle struck the wall. As he dodged out of the way his glasses broke. He ran out of the shop for help. Seizing this opportunity the offender jumped onto the counter, took two bottles of white rum and ran off. In the process some of the shelves behind the counter where sweets were kept were damaged (count 4). 11. On 21 April, the offender went into the Convenience Store at Browning Street S17. The shopkeeper was Magbool Ahmad. The offender walked around the store until the number of customers reduced. He then went behind the counter, pulled out a knife and threatened Mr Ahmed. 12. There was a struggle, during the course of which Mr Ahmed received a number of minor cuts to his hand. The offender grabbed two bottles of alcohol and made off (counts 5 and 6). 13. On the same day the offender returned to Chris Convenience Store in Dawes Street. As before the shopkeeper was Mr Thambapillai. He recognised the offender immediately and pressed the panic alarm several times. The offender went behind the counter where Mr Thambapillai was standing, drew out a knife and threatened him with it. A number of elderly customers were in the shop and saw what was happening but unsurprisingly were too afraid to intervene. Fearing a confrontation Mr Thambapillai backed away. The offender took three bottles of alcohol and made off (counts 7 and 8). 14. He was arrested and interviewed on 4 July. He told the police he was dependent on drugs and that he stole in order to feed his habit. He admitted the robbery in count 3 but said that he had not committed any other robberies. He was subsequently charged. 15. The offender had 14 criminal convictions from eight previous court appearances. His earliest conviction was in July 2011, when he was 14 years old, for an offence of robbery. Since then he had been convicted of possession of cannabis, possession with intent to supply heroin, cocaine and crack cocaine, assault, assaulting a police constable in the execution of his duty, robbery and having a knife in a public place. 16. On 3 February 2017, he had been sentenced to 15 months' detention for an offence of robbery committed while he was on bail. On 24 November 2017, he received a concurrent sentence of 3 years' detention for an offence of possessing cocaine with intent to supply. He was on release on licence from that sentence when he committed the offences between 15 and 21 April. There were no reports in this case. 17. In his personal statement Mr Shafiq (counts 1 and 2) said that the robberies had left him feeling shocked and frightened. He runs a small business, and even the theft of a few bottles of alcohol can have a significant impact on his profits. He now feels more anxious going to work than he did before. 18. In his personal statement Mr Patel (count 3) said that the crimes had scared him so much that he was selling his business and planned to move away from the area. He does not want his daughter to grow up in the area knowing that there are people like the offender around. He bought his business for £95,000, but was only able to sell it for £75,000 so his decision to sell up has cost him a considerable amount of money. 19. In his personal statement Mr Thambapillai (counts 4, 7 and 8) said the robberies had left him feeling very scared. Since then he has refused to work alone and insists that another person is in the shop with him at all times. He works fewer shifts, and that costs him money. There was no victim personal statement from Mr Ahmed (counts 5 and 6). 20. The Recorder was taken to the Sentencing Council's Definitive Guideline for Robbery for street and less sophisticated commercial robberies. Prosecution counsel submitted that so far as counts 1, 5 and 7 were concerned, there was high culpability, category A because the offender had either produced a knife, in order to threaten victims (counts 5 and 7) or had used a weapon (a bottle) to inflict violence on the victim (count 1). The harm was category 2. Category 2A provides a starting point for a single offence of 5 years' imprisonment and a range of 4 to 8 years. It was submitted that for count 3 there was medium culpability category B, but category 1 harm because there had been a serious detrimental impact on the victim's business as a result of the sale at a loss. Category 1B also provided a starting point of 5 years' imprisonment and a range of 4 to 8 years. 21. As to the other robberies (counts 2 and 4) there was medium culpability and category 2 harm which provided a starting point for a single offence of 4 years' imprisonment with a range of 3 to 6 years. 22. Prosecuting counsel did not take the Recorder to the Definitive Guideline for sentencing the offensive weapons offences (counts 6 and 8). It was submitted that the fact that the offender was armed with a knife should properly be considered as a feature of the robberies. The Recorder decided to give 20% credit for the pleas of guilty. He took an overall sentence for the offending of 5 years' imprisonment and reduced that to reach the final term of 4 years. He imposed a 4-year sentence for the two offences where the offender had a knife (counts 5 and 7) and lesser concurrent terms for the other offences. 23. For the Solicitor General Mr Jarvis takes the initial point that for four of the robberies the starting point for a single offence was a term of 5 years and a range of 4 to 8 years: Counts 5 and 7, where a knife was produced and which the Recorder regarded as the most serious offences, count 3 where the victim had to sell his business and count 1, where a bottle was used as a weapon. But there were two other robberies and looking at the matter broadly, the offender had to be sentenced for six robberies carried out over a period of around 1 week, where there were four victims (two of whom were robbed twice). In the course of committing those offences the offender used or threatened violence against the victims and on two occasions produced a knife that he had taken with him in order to reinforce his threats. Each of these offences carried a starting point of either 4 or 5 years' imprisonment. The offending was also aggravated by the fact that the offender was on licence from an earlier sentence at the time and had a number of relevant previous convictions. There was, submitted Mr Jarvis, little by way of mitigation available to the offender. Mr Jarvis also sidled up to a complaint about the 20% credit for the pleas but the focus of his argument was that this highlights the undue lenience of the overall sentence of 4 years. 24. For the offender Mr Burton recognises that this was a lenient sentence but submits that it was not unduly so. He accepts that three of the robberies fell within category 2A of the guidelines and that the Recorder was bound to treat the other offences as calling for an upward adjustment to what would otherwise be the appropriate sentence for a single offence. It is likely therefore that he took a sentence before mitigation of above 5 years. He submits that the Recorder was entitled to give effect to the mitigation. He had been drawn into drug dealing by a gang when he was very young and had been unable to extricate himself. It was this that led to the conviction in 2017 and the term of 3 years youth detention. He has, Mr Burton says, been previously unable to articulate the way he has been ‘trapped’, as Mr Burton put it, into offending. Mr Burton also drew our attention to a document entitled "Instructions of the defendant" which was before the Crown Court. His broad submission is that the current offending was the result of both a continuing need to pay off his drug debt to the gang and his addiction to crack cocaine. He accepts that this is a matter wholly within the knowledge of the offender but highlights his expressed desire to move away from those who controlled him. This background, he submits, provided compelling mitigation which had been acknowledged and properly taken into account by the Recorder. 25. As the Recorder noted in his sentencing remarks, the offender had committed these offences within 3 months of being released on licence for his previous offending. In a spree of robberies he "targeted, attacked and physically assaulted vulnerable single storekeepers in the local High Streets" taking alcohol, cash or both. 26. The relevant sentencing guideline is the Sentencing Council's Definitive Guidelines for Street and Less Sophisticated Commercial Robberies. For the offences where a knife was produced (counts 5 and 7), where violence was used with a weapon (count 1) and where the victim had to sell his business (count 3), the starting point for a single offence was a term of 5 years' imprisonment with a range of 4 to 8 years. For the other two robberies the starting point was a term of 4 years and a range of 3 to 6 years. 27. There was the further aggravation of the offender's previous convictions for robbery and the fact that he had been released on licence shortly before these offences. The fact that the robberies were not planned, although of little consolation to the victims, reduced the seriousness. An expression of remorse and a self-reported history of exploitation by a gang may carry some weight, and although the Recorder did not refer to it in his sentencing remarks, we accept that he acknowledged this during the course of the mitigation. However the potency of expressed remorse and the background to offending are reduced in effect the more the offender continues to commit crimes. He is now 22. The excuse of youth and immaturity is thin. Nevertheless, there are signs of progress and we accept that there is hope for the future in turning his life around. 28. However, even with some of the mitigation relied upon, the sentence before credit for plea should not have been less than seven-and-a-half years bearing in mind the number of offences and the history of offending. We are not inclined to interfere with the credit of 20% credit for plea. The resulting sentence should have been an overall term of 6 years and not 4 years. The sentence of 4 years was unduly lenient. 29. Accordingly, we quash the sentence of 4 years' imprisonment on counts 5 and 7 and substitute terms of 6 years on each count. The other sentences will remain unaffected.

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[2018] EWCA Crim 1393

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Case No: 201702174 B2 Neutral Citation Number: [2018] EWCA Crim 1393 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT NOTTINGHAM His Honour Judge Fowler Royal Courts of Justice Strand, London, WC2A 2LL Date: 21.6.2018 Before: LORD JUSTICE SIMON MR JUSTICE GOOSE and HH JUDGE CUTTS QC (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: Regina and Andrew Ian Guy - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201702174 B2 Neutral Citation Number: [2018] EWCA Crim 1393 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT NOTTINGHAM His Honour Judge Fowler Royal Courts of Justice Strand, London, WC2A 2LL Date: 21.6.2018 Before: LORD JUSTICE SIMON MR JUSTICE GOOSE and HH JUDGE CUTTS QC (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: Regina and Andrew Ian Guy - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Simon Ray for the Appellant Ms Nicola Moore for the Crown Hearing date: 7 June 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Simon: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. Introduction 2. On 21 and 24 April 2017, in the Crown Court at Northampton (before HHJ Fowler and a jury) the applicant was convicted for three offences: counts 1 and 2, which charged Sexual Assault of a Child under 13, contrary to s.7(1) of the Sexual Offences Act 2003; and count 3, which charged sexual activity with a child, contrary to s.9 of the 2003 Act. The convictions on counts 1 and 2 were by a majority of 10:2. The conviction on count 3 was unanimous. The Jury were unable to agree on count 4, which was a charge of rape and the prosecution did not seek a retrial. 3. The application for leave to appeal against these convictions has been referred to the Full Court by the Single Judge and we grant leave. 4. We will refer to the complainant in relation to each count as C. She was born in September 2000 and was about 7 years old when the appellant formed a relationship with her mother (H). He moved into the family home in Wellingborough where C lived, with H and a younger full brother. 5. On 27 February 2016, C reported to the police that the appellant had sexually abused and raped her over a number of years when they lived at various addresses: Swinburn, (between April 2008 and December 2009), Barrett Close (between Christmas 2009 and August 2013), and Shelley Road (between August 2013 and July 2014). 6. The appellant was arrested and entirely denied the allegations in his police interview. 7. The Prosecution case was that C’s account was true and that the appellant had sexually assaulted and raped her as she alleged. The Defence case was that the allegations were false. The issue for the jury was whether they were sure that C’s account was true and accurate, and that the appellant had sexually abused and raped her as she said. The evidence at trial 8. C gave evidence that she did not like the appellant from the outset, even though he tried to be nice and to act as her ‘dad’. After a while he lost his job and started arguing with her mother, whom he treated like a ‘slave’. If they tried to wake him up, he would get angry and shout. 9. In relation to counts 1 and 2 (the sexual assaults), she gave evidence that when she was between the ages of 8 and 12 the appellant used to tuck her into her bed. While doing so, he would stroke and rub her breasts, her bottom and her crotch area over her pyjamas. This usually happened at about 7.00 or 8.00 in the evening. 10. As to count 3, the charge of sexual activity with a child, her evidence was that the appellant would pinch her bottom almost every day in front of her mother, and that this would cause arguments. He used to comment on what she was wearing and, when she used the bathroom at their home in Shelley Road (between 2013 and 2014), she was not allowed to shut or lock the door. The appellant would walk in when she was getting out of the bath and was naked. 11. So far as the charge of rape was concerned (count 4) she said that on an occasion when she was almost 14, her mother went out for the evening and left her in the care of the appellant. During the evening, he went out for a few hours and returned home with glazed eyes acting strangely. He called her downstairs where he was drinking ‘desperado’ (tequila flavoured beer) and made her drink some. She went up to bed because the drink made her feel ill, and he came and sat at the end of her bed in his dressing gown. He was saying that he was her real father and that he wanted a DNA test to prove it. He then got into her bed; and she got out and sat on the floor. She froze and could not speak. He took off his dressing gown and started touching her breasts. He placed his penis into her vagina for about a minute but when her mother returned home unexpectedly early, he jumped up and left the room. She heard her mother arguing with him about why he was naked. As already noted the jury were unable to reach a verdict on this count; it is, nevertheless, relevant to one of the points raised on the appeal. 12. C explained that she had not complained about his behaviour earlier because she did not feel ready to do so. 13. H (C’s mother) gave evidence that her relationship with the appellant had ‘its ups and downs’. If C were given a present, it had to be from him, and he would want a kiss in return, latterly kissing with tongues. When she (H) challenged him about this, he would say she was disgusting for making her ‘implications’ and he would ‘kick off’. She saw him pinch C’s bottom at the Shelley Road address. C always looked shocked, and he would make a joke of it. On one occasion she returned home to find him naked on the sofa snorting cocaine. This was the day of the alleged rape. She confirmed that C was accustomed to self-harming. She denied the suggestion that she had put her daughter up to making the allegation against the appellant and said she only learned of the allegations after C had reported them to the police, and after they appeared in the social services reports. In cross-examination, she reiterated that the appellant used to go upstairs and speak to C in her bedroom. She denied that she and the appellant got back together again after separating or that she had stayed with him for two days over Christmas 2014. It was the appellant who used to refer to C as ‘a Dolly Parton’. 14. The Prosecution also adduced evidence from social workers who had contact with C. 15. The appellant gave evidence in his own defence in which he denied the allegations. He speculated that the allegations might have been made in response to him revealing that he had a girlfriend. He described the allegations against him as ‘disgusting’, and insisted, ‘at the end of the day, I’m innocent and I’ve done nothing wrong’. He confirmed that his relationship with C’s mother began in September 2008 and that he moved into the family home with H and her children the following November. Thereafter, H had two further children (R & JY) and he believed that he was their biological father until family proceedings revealed that he might not be the father of R. He always behaved appropriately towards C. Initially he gave C and her brother space but, over time, they developed a natural father/daughter and father/son relationship. 16. In relation to counts 1 and 2, he denied that he tucked C into her bed, or spent any time talking to her in her bedroom. He was not involved in the bedtime routine. That was H’s role. He was never involved in bathing the children although, when he and H had noticed C was self-harming with razors in the bathroom, he told her not to lock the bathroom door. He denied that he had ever touched her inappropriately. He never smacked or pinched her bottom or any of the other things alleged by her. In fact, it was her mother who acted inappropriately, pulling down C’s trousers or shorts and making highly personal comments. 17. Although his relationship with C was initially good, it became apparent that her mother was telling lies. In addition, he received phone calls at work because H was not coping. Furthermore, C was not dealing well with the break-up of the relationship between her mother and her natural father, and separation from her sister. There was also some confusion about C’s parentage because the appellant and H had had a one-night stand at the material time, so that he might have been C’s father. He could not comment about the rape because it had never happened. He said that the allegations were made to the police the day after he revealed he was seeing someone else and that he intended to start a new relationship with that person. After he had separated from H, C would come to his house to visit her brothers, both with and without her mother. He had received various greetings cards written by C, both during his relationship with her mother and after it ended. 18. In cross-examination, he admitted that he had been tested and had been found to have taken cocaine, but that was not to admit that he had been using drugs on the occasions alleged in the case. He insisted that, following their separation, there had been a continuing sexual relationship with H. The appeal 19. Following his conviction and advice from trial counsel, the appellant settled his own grounds of appeal. The Single Judge did not consider that they were properly arguable. However, having reviewed the summing-up, he considered that it was arguable that it was deficient in a number of respects and that case should be considered by the Full Court. He also granted a representation order so that new counsel could be instructed. 20. Mr Ray (who was not trial counsel) has now analysed the summing-up in the light of the Single Judge’s remarks and has articulated two particular areas of criticism of it: first, in relation to parts of the summing-up which in his submission ‘lacked structure and clarity’ and, secondly, in relation to parts of the summing-up which he submits amounted to unfair endorsements of C’s evidence to the Jury. 21. Before turning to the particular matters of complaint, we would make four general points. 22. First, the Crown Court Compendium, which is freely available to practitioners who appear in the Crown Court and to Judges who sit there, provides guidance and draft directions in relation to points of law and practice that may arise in trials and in relation to which juries may need to be directed. Each direction has been carefully considered and provides judges with an invaluable resource which, when adapted to the facts of a particular case, will provide an appropriate framework for a legally correct direction. Those who do not avail themselves of these draft directions are at risk of introducing error in the summing-up. 23. Second, although this Court can read a transcript of the summing-up, the transcript cannot replicate the dynamics of the trial. Nor, sometimes, will it reveal what was really in issue and what was not. It may therefore be important to see whether trial counsel raised an issue in relation to the summing-up that they heard, in the light of their understanding of the issues. In the present case the Judge raised with counsel whether there was any matter that they wished him to raise with the Jury. Although the appellant’s trial counsel raised a point of fact, she did not raise any other point in the summing-up. Such an omission is not dispositive of an appeal based on errors in a summing-up, but is nevertheless a matter to be borne in mind. 24. Third, while it may sometimes seem impractical in busy courts which hear many relatively short cases, it is usually sensible and good practice to discuss the directions that the Judge is intending to give before speeches, and to make written directions available to the Jury. In the present case, the Jury was provided with a written route to verdict but not written directions. 25. Fourth, sometimes complaint is made that the overall tone or effect of a summing-up is unfairly adverse to a defendant. That is not the basis of the appeal in the present case. Points were fairly made by the Judge in favour of the defence; and the Judge repeatedly reminded the Jury that, whatever he said about the facts, it was for them to decide them. 26. We turn then to the five points raised by Mr Ray, starting with points (1) and (2) which, he submitted, showed a lack of structure and clarity. 27. Point (1) is a complaint in relation to what the Jury were told about the appellant’s alleged use of cocaine. 28. The prosecution case on count 4, the charge of rape, included evidence that the appellant had been asked to babysit while H was out. He eventually came home late and behaved bizarrely due to the effect of either drink or drugs or both. He then raped C. When H returned later she found the appellant naked and taking cocaine. In his police interview he denied that he took drugs and said that he had last smoked cannabis many years before. He was cross-examined on the basis that he had lied to the police in interview. He accepted that he had, and that since the date of the alleged offence he had tested positive for cocaine. He admitted he had taken drugs and that he had lied to the police. 29. Mr Ray submitted that the Judge’s direction conflated two distinct issues: first, evidence of bad character relating to his use of drugs and, second, lies that he told the police in interview about his use of cocaine. So far as bad character was concerned, the allegations about drug taking on the night of the alleged rape and the appellant’s admissions about positive drug tests both amounted to bad character within the meaning of s.98 of the Criminal Justice Act 2003. Neither were concerned with the allegations of rape. It followed that a direction was required directing the Jury as to the relevance and limitations of the evidence. So far as lies were concerned, the Judge should have given a clear direction about lies, see R v. Lucas [1981] 1 QB 720 , that was separate and distinct from the direction on bad character. 30. The Judge dealt with the issue of the appellant’s drug taking and lies about it in a number of places but it is convenient to focus on the first occasion he did so. Now in the course of cross-examination of the Defendant it was put to him and to some extent he accepted that he had lied to the police in the interview, lied specifically about the taking of drugs. It was also put to him that he had lied to you; these are matters that you are going to have to consider whether you are sure that he did it. He accepted, it seems to me, that that he lied about the drug-taking but where does that take you? Well, what it does not do, ladies and gentlemen, is prove that he is guilty of any of the offences on the indictment. A lie about the fact that he was taking drugs could be brought about by a whole manner of motivation, but you cannot be sure that it is because of anything to do with these offences. So, ladies and gentlemen, you cannot use that as a means of proving - or the Prosecution cannot use it as a means of providing or advancing their case in the sense that it shows he is guilty of these offences. Of course, it is part of what you know and have seen of the Defendant. One of the things that you are going to have to do, perhaps one of the principle things you are going to have to do, is decide what you make of the evidence of him and of [C]. What you know about the Defendant and what you see of him is something you take into account when judging his credibility and, in that regard, you can take account of any lies that he might have told. Not to say that he has lied something like that, or has lied about everything, obviously. You have got to address it in a balanced way, let us note. 31. In the course of argument Mr Ray accepted that the evidence of cocaine taking was not evidence of bad character because it was evidence to do with the offence charged, rape. However, in her submissions, Ms Moore, told the Court that the evidence of cocaine use was admitted as bad character in order to correct a false impression given by the appellant in the course of his evidence in chief, see ss.101(1)(f) and 105 of the Criminal Justice Act 2003. The appellant had said that he had not taken drugs for 10 years and the prosecution wished to put to him in cross-examination that he had recently tested positively for cocaine. It seems that the application to adduce this evidence was made ‘informally,’ in other words, other than in accordance with Part 21 of the Criminal Procedure Rules. We were also told that the Judge acceded to the application, although there was no ruling on the point. We regard this is as unsatisfactory. The proper course should be to make a written application (or at least undertake promptly to make such an application), and for a judge to rule on the point, however briefly, as the circumstances may require. 32. If this had been done, thought would have been given to a direction to the Jury explaining why they had heard evidence of the appellant’s cocaine taking. The evidence that he took illegal drugs was bad character evidence, see for example R v. M [2014] EWCA Crim 1457 at [61]. The Jury should have been told why the evidence had been admitted and warned against attaching disproportionate weight to it. However, as Lord Phillips LCJ said in R v. Campbell [2007] EWCA Crim 1472 at [24]: The summing-up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid the prejudice that is at odds with it (see also Sullivan [2015] EWCA Crim 1565 at [52] and [53]). 33. In the passage of the summing-up dealing with this aspect of the case, the Judge focussed on lies about drug taking. 34. As is made clear in the Crown Court Compendium, whether a direction should be given about admitted or proven lies ought to be the subject of discussion before speeches: not least to identify what lies are relied on. The direction, if given, should make clear that the Jury must be sure of three specific matters: (1) that it is either admitted or shown by other evidence in the case to be a deliberate untruth (rather than arising from confusion or mistake); (2) it relates to a significant issue; and (3) it was not told for a reason which does not point to the defendant’s guilt. The Jury must be told that, unless they are sure of all three matters, the lie (if they are sure it is) is not relevant and should be ignored. Otherwise, the lie may be used as some support for the case. In the present case no explanation was offered for the lie. 35. In our view, the Judge’s direction could, and should, have been more clearly expressed; but it contained the critical direction that lies to the police about drug-taking could not be used to prove that the appellant had committed the offences with which he had been charged. 36. Point (2) is a criticism of the summing-up in relation to the ‘sexual’ element of the offences charged under counts 1 to 3. 37. Section 78 of the 2003 Act provides: For the purposes of this part (except section 71), penetration, touching or any other activity is sexual if the reasonable person would consider that – (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual. 38. Mr Ray accepted that the summing-up directed the jury on those elements of the offences that the prosecution had to prove; but he submitted that the overall guidance on the elements of the offence was ‘not as clear as it should be’, particularly in relation to count 3 where the allegation was that he touched C on the bottom; and that in any event the Judge should have made clear that the Jury should exclude the possibility that the touching was accidental. 39. We are not persuaded that a specific direction on the sexual element of the offence charged under counts 1 and 2 was necessary. The stroking and rubbing of C’s breasts, her bottom and her crotch area was plainly sexual. Count 3 related to touching her bottom. The Judge addressed this point as follows: The Prosecution have to prove that there was a deliberate touching by the defendant of [C] on her bottom … any touching of the bottom is sufficient if it is deliberate and not accidental. 40. Later, the Judge concluded: … you have got to ask yourself would a reasonable person consider it sexual in the circumstances that we know apply in this case. 41. In our view, although the passage that we have omitted would not have assisted the Jury, neither would a recitation of the statutory wording. The written Route to Verdict made clear that the Jury had to be satisfied (1) ‘that the defendant deliberately touched C on the bottom, by pinching or otherwise’, and (2) ‘that a reasonable person would consider that the touching, because of its nature or because of the circumstances and/or purpose, to be sexual.’ 42. In our judgment, there was no misdirection or lack of clarity in relation to the sexual element of count 3. 43. We turn then to the three points advanced on this appeal as demonstrating an objectionable endorsement of C’s evidence. Before doing so, however, it is important to note that at the start of the summing-up the Judge directed the Jury in conventional terms that it was their view of the facts that mattered and not his, and that if they disagreed with any view he expressed about the facts they should ignore it. 44. Point (3) relates to the direction on C’s behaviour and, in particular, her delay in reporting the offences. 45. The Judge summed-up in the following way: This is an area, ladies and gentlemen, where it is important that I share with you the experience of courts in such matters, and that experience shows that in sexual cases it is not always the case that a victim will make an immediate response or complain straight away if they are subjected to a sexual assault. Of course, there can be all manner of reasons, but a moment’s thought indicates some that might apply generally. I am not telling you what happened in this case, but sexual offences are offences of control, and whilst that control is operative it can prevent the complaint. Part of the controlling behaviour and what is called grooming is to make a victim feel vulnerable and responsible themselves for bring matters about. It is often the case too that the person who is responsible for the event has chosen a victim who is vulnerable and in a weak position, and it is also the case that there is an embarrassment and a sensitivity in making such complaints. That is the situation with adults subjected to sexual assault and rape; that the confusion and embarrassment, the feelings of helplessness and the making of complaints after many years often arise in instances where children are involved as victims. If you think about it, ladies and gentlemen, the features that might prevent a complaint being made can be borne stronger than a case where a child is involved. We all have the advantage of having been children and experiencing the relationship with adults. A child places trust in an adult, and even more so trust in an adult within a family to the extent of looking to them to establish what is right and what is wrong. How much courage does it take for a child to challenge an adult? How much courage to challenge a father or a stepfather? In any instance a complaint is going to cause disruption and affect the relationship within the family of the child, but also potentially affect the relationship of other family members even, a parent with the person who is alleged to be perpetrated. Those are the features that apply when you consider whether an immediate complaint is made but I stress, ladies and gentlemen, I am not telling you what happened in this case. I am just opening your eyes to the experience of the Court that shows that any assumption that if there is an attack or somebody is going to complain straight away is probably ill-founded, particularly when dealing with children. 46. At §20-3 of the Crown Court Compendium, it is noted: Where grooming is alleged to have occurred, whether or not this gives rise to a separate count on the indictment, the concept of grooming and the potential difficulties of a witness’ realisation and/or recollection of innocent attention becoming sexual should be explained. 47. A draft direction is suggested under the heading: ‘Example 1: young child’. The prosecution case is that before he sexually assaulted V he ‘groomed’ her. That is to say he won her trust by doing things which in normal circumstances would be innocent, such as playing games with her including play-fighting and tickling, before he went on to touch her sexually. In this situation, a child is unlikely to realise that she is at any risk at all and, when the nature of touching changes from something ‘innocent’ to something which is sexual, the child may not realise that there is anything wrong and may accept it without any feeling of discomfort or dislike and will not make any complaint about it or resist or protest when it happens again. In these circumstances a child is unlikely to be able to say when touching which had been ‘innocent’ changed to touching which was sexual. In making these observations I am not suggesting what you should find did, or did not, happen in this case: I am simply alerting you to a potential difficulty which a child in such a situation could face. Whether or not you find that this was a situation faced by V is entirely for you to decide. 48. The Judge appears to have had this direction in mind when giving the direction referred to above. 49. The point on which the Jury needed to be directed was that they should not assume that delay in reporting was inconsistent with the truth of what was reported. 50. A direction which assists a Jury will be one that is directed to the facts and arguments in the case, the dangers of making assumptions which are not justified by the facts and a reminder that it is for the prosecution to prove its case. 51. The Crown Court Compendium (at p.10-21) gives example 3 as a draft direction in relation to delays in reporting of an offence by children. It refers to the various reasons which may be relevant and provides a fair approach because it is expressed in general terms rather than by reference to the particular facts of the case. Experience has shown that children may not speak out about something that has happened to them for a number of reasons. A child may - • be confused about what has happened or about whether or not to speak out; • blame him/herself for what has happened or be afraid that he/she will be blamed for it and punished; • be afraid of the consequences of speaking about it, either for him/herself and/or for another member of the family (such as {specify}); • may feel that s/he may not be believed; • may have been told to say nothing and threatened with the consequences of doing so; • may be embarrassed because s/he did not appreciate at the time that what was happening was wrong, or because s/he enjoyed some of the aspects of the attention they were getting; • simply blank what happened out and get on with their lives until the point comes when they feel ready or the need to speak out {e.g. for the sake of a younger child who s/he feels may be at risk}; • may feel conflicted: loving the abuser but hating the abuse. 52. Plainly, where the defence contends that if the allegations were true there would have been a complaint earlier, a Jury should be directed to consider the potential difficulties for a child in making a complaint. It seems that the Judge may have also had this point in mind when he said, ‘how much courage to challenge a father or a stepfather?’ It is less clear that it was relevant to the particular circumstances of the case. 53. In our view, the Judge’s observations on this aspect of the case were not materially objectionable, reminding the Jury, as he did on two occasions, that he was not indicating what had happened in the particular case, and having earlier directed them that the facts were for them to decide. 54. Point (4) is a criticism of the direction about delay (generally), and in particular about a child’s ability to recall events in the past. At least to some extent, there is an overlap with point (3). 55. The Judge directed the Jury: I want to turn, ladies and gentlemen, to another area where it is important that you have your eyes open to the potential difficulties and dangers of assumptions. That really is summed up by saying that it is wrong to make an assumption that a child will have the same ability to recall and give evidence about matters that have happened to them earlier. Not only is [C] even now only 16 but she is talking about initially things that happened when she was eight, and a child’s brain takes time to develop; indeed, we know now that it is only in the middle twenties that a brain is actually fully formed and functioning in its adult way. But again, we have experience of remembering things as children and we know from our own experience that the memories are different, less detailed than those memories in adult life, because no doubt in our – it is only later with experience that the brain learns to retain the information in that way. But you also know, don’t you, that our childhood memories in fundamentals can be reliable; it might be that the sequencing, the timing and the details are not so clear but the fundamental as to whether something happened or not is something that can be remembered even if it is from long ago. So, ladies and gentlemen, you have to be aware than in this case you have a 16-year-old remembering what had happened to her from age eight through to 13-14, and you have to bear that in mind when you consider her evidence in both ways, ladies and gentlemen, to consider whether it enhances what she tells you now, if it is something you accept, or whether it undermines in any way what she says. The delay in matters being disclosed is something that you have to bear in mind. If, in any way, you think it has disadvantaged the Defendant then take that into account, but there is really any episode where the Defendant says, ‘I don’t remember.’ His evidence is quite clear, isn’t it? It is, ‘It didn’t happen.’ 56. Mr Ray made three complaints about this passage: (1) the Judge’s direction about the development of the memory lacked a factual basis; (2) it amounted to a direction to the Jury to ignore any perceived weaknesses in C’s evidence; and (3) the short final paragraph covering the potential difficulties caused to the appellant by the delay was inadequate. There should have been a fair and balanced direction analysing the prejudice caused by the gap in time between the alleged offences and the trial. 57. In our view Mr Ray’s first complaint is well-founded, although we do not accept that it amounted to a misdirection. 58. As to the second complaint, we accept that the Judge’s observations offered an explanation as to why C might have not have remembered certain matters, but we do not regard these as going beyond what was permissible. The Judge plainly left it to the Jury to decide whether any deficiencies in C’s recollection were material. 59. So far as his third complaint is concerned, it is clear that delay may put a defendant at a serious disadvantage. A defendant may not be able to remember details that could have helped him cast doubt on the prosecution case. It is for this reason that Juries should be reminded to take these matters into account in a defendant’s favour when considering whether the prosecution has proved its case. 60. However, we accept Ms Moore’s submission that, brief as it was, the direction on delay in the final paragraph above was sufficient in the present case. The defence was a complete denial of the conduct alleged by the prosecution and of any sexual impropriety. The appellant did not say he could not remember the circumstances on a particular occasion. He said that nothing had happened as C described. The only specific date that was alleged was in relation to the count of rape, in respect of which the appellant was not convicted. Furthermore, Mr Ray was not able to point to any specific element of prejudice caused by the delay in relation to counts 1-3. 61. Point (5) is a criticism of the direction in relation to how the Jury should approach displays of distress by C. 62. The Judge directed the Jury: The allegations are made by [C], and she spoke to you about them in her evidence. You saw the way that she gave her evidence; you saw what appeared I think to be reluctance, hesitance and distress in the way that she presented it. Of course, emotions like that can be put on, and you would have to be sure that they are genuine before you acted upon them, but that is one of the questions you have got to ask yourselves, isn’t it? Was that a young girl making things up, reciting some things she had been told, or was that somebody who was genuinely embarrassed and distressed about what she was saying to the officer who was interviewing her? It is suggested that what she was saying, what she has reported is at the bidding of her mother – that they are made up stories. If it is relevant to look at what is being said, and ask yourself if you were going to make it up is that what you would make up? If you are going to have a child tell stories about what has happened, is that what you would get them to say? Would you make sure that there was some support for it? There are all sort of perhaps flaws in the story that could be filled if you have a blank canvas of being able to make it up from scratch. On the other hand, ladies and gentlemen, I have already pointed out that the Defendant does not have to say how or why a complaint has been made up if it is false. 63. Mr Ray accepted that the Jury were entitled to take into account C’s distress, but submitted that the Judge’s direction encouraged the Jury to use the evidence of her distress in support of the prosecution case. 64. Plainly, a Judge should be cautious in directing a Jury about a witness’s distress. A neutral draft direction is set out as example 6 of the Crown Court Companion in chapter 20, under the heading, ‘s how of emotion/distress when making a complaint and/or giving evidence.’ You have been reminded/you will remember that at a number of points in his/her evidence V became distressed and emotional. It is entirely for you to decide whether or not V’s evidence is true but you must not simply assume that because V showed distress and emotion it must be true. It is perfectly possible for a witness to become distressed and emotional when describing an incident such as this, whether or not their account is true. The presence or absence of a show of emotion or distress when giving evidence is not a reliable pointer to the truthfulness or untruthfulness of what a person is saying. 65. The Judge’s direction invited the Jury to consider whether they were sure that C’s emotions were genuine. The rest of the passage invited speculation but was not objectionable in inviting the Jury to consider the implications of the defence case. Ultimately, it was for the prosecution to prove its case, and not for the defence to offer reasons why a false complaint might have been made. Conclusion 66. We have considered the matters of complaint advanced on the appellant’s behalf and we have accepted that some of the criticisms of the summing-up are justified. We are not, however, persuaded that, viewed overall, the summing-up was confusing, nor that it amounted to advocating the prosecution case nor that it rendered the trial unfair. The Jury saw and heard C and the appellant give evidence. They would also have heard the points made by counsel against and for the appellant. The Judge did not usurp the Jury’s function or express views that effectively deprived them of the ability to decide the matters to which the Judge referred. As we have already noted, no complaint was made by trial counsel, who would have been aware of the real issues between the prosecution and defence, about the summing-up at the time. 67. Accordingly, we are satisfied that the convictions are safe and the appeal must be dismissed.

2018_06_21-4336.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1393/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1393

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[2018] EWCA Crim 1555

EWCA_Crim_1555

crown_court

Neutral Citation Number: [2018] EWCA Crim 1555 Case No: 2011/4924/B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT His Honour Judge Morris QC T20100253 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/07/2018 Before: LORD JUSTICE TREACY MR JUSTICE GOSS and HIS HONOUR JUDGE STOCKDALE QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Lamarr Gordon Applicant - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2018] EWCA Crim 1555 Case No: 2011/4924/B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT His Honour Judge Morris QC T20100253 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/07/2018 Before: LORD JUSTICE TREACY MR JUSTICE GOSS and HIS HONOUR JUDGE STOCKDALE QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Lamarr Gordon Applicant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Edward Brown QC (instructed by Crown Prosecution Service ) for the Respondent Mr Matthew Stanbury (instructed by Registrar of Appeals ) for the Applicant Hearing date: 13 June 2018 - - - - - - - - - - - - - - - - - - - - - JudgmentAs Approved by the Court Lord Justice Treacy: 1. This is a renewed application for leave to appeal against conviction on 10 March 2011 for an offence of murder at the Central Criminal Court. An application for leave was made in 2011 but was refused by the single judge. The grounds now pursued before this court are new grounds based upon fresh evidence and formed no part of the original grounds of appeal. An extension of time of around 5 years is required for the renewal of this application. 2. Initially, this application covered a number of other matters which were considered by this court and an application in relation to them was refused. That judgment can be found at R v Gordon [2017] EWCA Crim 2213 . The form in which the matter has proceeded before this court represents grounds which the court in 2017 felt might be capable of argument, albeit that leave was not granted. In short, the applicant seeks leave to adduce fresh expert evidence pursuant to s.23 of the Criminal Appeal Act 1968 from two expert witnesses, Dr Gillian Merrill and Dr David Murphy. Neither of those witnesses was involved in the original trial but both have compiled reports since conviction. As a result of that, it is contended that the applicant’s conviction for murder was unsafe because the applicant has autism spectrum disorder (ASD), most likely in the form of Asperger’s Syndrome. That condition was not diagnosed at the time of trial and it is contended that had it been diagnosed, the judge would have directed the jury in a materially different way. 3. In particular, it is contended that i) The applicant’s condition was (or might have been) relevant to his ability to form the required intention for murder and that the jury should have been so directed; and ii) that his condition was (or might have been) relevant to his behaviour shortly after the incident and the jury should have been so directed. Such directions would have been relevant to the applicant’s ability to interpret and understand the behaviour of others at the time of the fatal incident, and also to his own behaviour immediately afterwards and the interpretation to be placed on that. 4. The facts of the case show that the applicant was part of a group or gang of young men who travelled from Lewisham to Sydenham with a view to confronting and fighting an opposing group or gang. As a result, Nicholas Pearton was chased by a pack of the applicant’s group and stabbed in the street in broad daylight. This applicant did not wield the knife which killed Pearton; he was convicted as a secondary party. The applicant’s group or gang call themselves “Shanks and Guns”; “shanks” being knives. 5. There had been a history of confrontation and dispute between members of the two groups. On the afternoon of 5 May 2010 there was an altercation outside a school in Lewisham between members of the Lewisham group and members of the Sydenham group. Within a short space of time, members of the Lewisham group gathered in their local park, Grove Park. They then travelled by bus to Home Park, Sydenham, where there was a confrontation between the two groups. 6. By this stage both groups were armed. The Sydenham group was chased out of the park. Nicholas Pearton became separated from his friends and was pursued by a number of Lewisham youths. He was caught by Dale Green (who was convicted of murder) just outside the park and was stabbed in the back in plain view of members of the public waiting at traffic lights. The deceased managed to take refuge in a shop on the other side of the road but died there soon afterwards. An attempt made by Demar Brown (convicted of manslaughter) to get inside the shop failed. Other members of the Lewisham group were at the scene chanting and shouting their gang name, apparently celebrating what had happened. The Lewisham group then left the scene, then caught a bus back to Lewisham. 7. The case against this applicant was put as follows. He was a member of the Lewisham group which had met in Grove Park, Lewisham as a result of the incident outside the school. This led to a group decision to travel to Sydenham for an armed confrontation. There was evidence that Green had said to those present before the group left Grove Park that he was going to stab one of the opposing gang. This applicant had then said, “Anyone who don’t come ain’t riding”; that is, anyone who did not join the group would not be regarded as part of the gang. The applicant then travelled with the group to Home Park, Sydenham, for the purpose of a confrontation. This fact has to be seen in the context of the fact that a week before the murder there was put on YouTube a clip of the Lewisham group in which the applicant can be seen holding a knife and during which threats were made towards the Sydenham group. 8. The group travelled to Home Park and gathered at the home of Edward Conteh (convicted of manslaughter) before moving into the park itself. By that stage, members of the group were armed with knives, and knives were on display in their hands. This cannot have come as a surprise to the applicant who had earlier encouraged others to join in the venture under threat of exclusion from the gang. Once the chase of Nicholas Pearton from the park took place this applicant was part of the chasing group, albeit that one witness saw him leave the park through a nearby exit rather than that taken by the deceased and Green and others. 9. An eye witness identified the applicant as the holder of a knife. It is accepted that he was mistaken in this respect but this evidence, taken together with accusations by two co-accused that this applicant had a knife, was treated as evidence that this applicant was a positive participant in the action rather than an observing bystander, as he claimed. After the fatal stabbing this applicant left the scene with Green and others on a bus. 10. The applicant did not comment in interview but provided two prepared statements. He admitted seeing knives on display in the park and seeing the deceased in the shop to which he had retreated after being stabbed. He also acknowledged that, once on the bus, Green had told him that he had stabbed someone. There was CCTV footage showing that on the journey the applicant reached over and shook Green’s hand. In addition, there was evidence from a witness that the applicant said to those around them that Green was “the new young boss” and the “certified boss” and that he had repeated the words “knife him, knife him” to himself whilst laughing. 11. Subsequently, clothing belonging to those involved in the attack, as well as that belonging to the applicant, was found in the applicant’s brother’s car, no doubt for the purpose of being disposed of. Finally, there was bad character evidence showing the applicant’s convictions for joint public disorder and for possession of knives. 12. The defence case admitted presence at the scene but denied being party to a joint enterprise to murder. The applicant admitted anticipating that there might be “a punch up” but denied an intention to do serious harm, carrying a knife, chasing the deceased, or knowingly being part of a group who chased the deceased from the park into the road where he was stabbed. He denied presence at the point when the deceased was stabbed and denied celebrating the stabbing afterwards. The applicant did not give evidence but his case was conducted consistently with the defence statement which set out the matters referred to above. 13. The applicant was well known to his then solicitor, Mr Ross, who had been representing him since 2006 and had opened no less than 30 files in connection with him. Mr Ross had attended the police interviews in the present matter and considered that the applicant’s demeanour and behaviour was “absolutely fine”. During the applicant’s remand in custody awaiting trial, he became concerned about the applicant’s apparent mental deterioration. Accordingly, reports were obtained. Dr Andrew Johns, a consultant forensic psychiatrist, reported on 29 December 2010 and 5 January 2011. He noted earlier complaints of hearing voices but did not consider that they had the quality of auditory hallucinations associated with schizophrenia or major psychosis. Later the applicant was to say that he had made up these complaints. Dr Johns’ conclusion was that whilst there had been occasional behaviour or concerns relating to the applicant in custody he showed no major mental illness and on reviewing his background there was no history of mental illness. He described the applicant as being of low average intelligence, having a co-operative manner with entirely normal thought, although the applicant made few spontaneous comments and his concentration appeared poor. There was no suggestion of a diagnosis of autism in these reports or of any other significant mental abnormality. Dr Johns was aware that the applicant’s sister suffered from autism. 14. There was also a report dated 1 February 2011 from Dr Melora Wilson, a chartered clinical psychologist. She said the applicant attended to the assessment well, despite making virtually no eye contact. His demeanour was pleasant and co-operative. He was polite and appropriate throughout. He was well-orientated to person, time and place; the form and content of speech was normal, and his concentration levels appeared adequate. He had been able to sustain attention for the duration of a three-hour meeting without a break. Dr Wilson’s overall opinion was that the applicant might be developing an emerging mental disorder, possibly a depressive episode with psychotic features. 15. These reports did not provide the defence team then instructed with any basis for raising issues before the court with a view to influencing the content of the summing up, either on the matter of the applicant’s intentions at the time or in explaining his conduct after the event. No criticism is made of trial counsel; nor indeed is any criticism made of the two psychologists who provided reports at the time. However, it is now said that in the light of fresh evidence the position is different. 16. We now turn to the proposed fresh evidence. In September 2012 the applicant was recommended for admission to Broadmoor and assessed over the following months by Dr David Murphy, a chartered forensic and consultant clinical neuropsychologist. His first report is dated 12 December 2012. We decided to receive this report and later reports from him as well as one from Dr Merrill, a registered forensic psychologist, de bene esse . 17. Dr Murphy’s first report stated that the applicant’s history and current presentation suggested that he displayed a triad of impairments characteristic of all autism spectrum conditions. The triad consists of significant difficulties with social interaction, social communication and different dimensions of imagination, and having a restricted range of preoccupations, as well as a need for sameness. Although the applicant’s autistic quotient score was low, thus suggesting a low level of features and difficulties associated with having an ASD, Dr Murphy considered that the reliability and insight of the applicant’s answers leading to the score had to be queried as they did not match other self-reported descriptions given by the applicant. 18. Dr Murphy spoke of clear social naivety, difficulties with verbal comprehension and expression, poor eye contact, and difficulties in cognitive flexibility and speed of information processing. He also said that the applicant appeared to be a very poor judge in interpreting the intentions of others in dynamic social situations. In Dr Murphy’s opinion, the history and his presentation at interview were consistent with him having an ASD, most likely Asperger’s Syndrome. This diagnosis, he said, had significant implications for understanding the applicant’s previous offending and difficulties. 19. Dr Murphy reported again on 9 September 2013 and 11 December 2017. In the latter report he stated, “In my opinion, many of Mr Gordon’s presenting difficulties could be framed in terms of a combination of an ASD, social immaturity and naivety, some dysfunctional personality features (likely to be linked to his social circumstances and skewed experiences such as being exposed to gang culture) and poor coping strategies when under stress (also likely to be linked to ASD)”. He referred to the fact that the applicant’s sister had been diagnosed as suffering from an ASD “on the more severe end of the autism spectrum”. 20. In cross-examination Dr Murphy acknowledged that the applicant’s condition had deteriorated significantly whilst in custody and said that if he were returned to the prison system he would deteriorate again. Whilst his place on the spectrum of an ASD was fixed, how his condition affects him and how he reacts is affected by the environmental circumstances in which he is placed at any given time. He said that the applicant’s condition might well not have been recognised in 2010. It was difficult to diagnose and required observation over a period of time in different situations. 21. It was pointed out that he had spent a month in a mental health unit in June 2010, very shortly after the offending, and that this had resulted in a diagnosis of a conduct disorder. Dr Murphy maintained that it was still possible for an ASD to have been missed. In late 2012 the applicant had had difficulties drawing inferences about others’ intentions and actions. Whilst those difficulties would have been present in 2010, the applicant’s ability to react would have been affected by his environment; the more dynamic the situation, the more difficult it would have been for him to make rapid and accurate judgements. 22. Dr Murphy declined an invitation to place the applicant on a spectrum, stating that much depended on the situation and the stressors a person was experiencing at a particular time. He acknowledged that in 2010 nursing staff observing the applicant had been split on a diagnosis and suggested that that might be due to lesser levels of experience. 23. Dr Merrill’s report was dated 14 December 2016. She noted that it was not obvious from initial presentation that the applicant had any difficulties, including with autism. She noted that despite autism being a lifelong developmental disorder, the diagnosis had only relatively recently (2012) been made by Dr Murphy. This indicated that the nature, effect and severity of the condition was not so severe that it was recognised at school, or by the applicant’s mother. It also showed that he was able to manage and mask the difficulties associated with his traits until diagnosed at the age of 18. 24. When cross-examined, Dr Merrill said she had based her views about the applicant on what he had said to her about the events in May 2010. If the event had been planned it would be much easier for him to predict what would happen. She acknowledged that the applicant had told her he had previously been to the park with a view to a violent confrontation, had participated in the YouTube clip, and that there was evidence that he had encouraged a trip to the park on this occasion in the context of Green having said he was going to stab someone. If those facts were established, then processing and reacting to the situation in the park would have been easier for him when violence actually occurred. If the applicant had understood there would be violence in the park, that was a factor which could not be ignored. 25. She described the condition as having the following features: i) difficulties and vulnerabilities with interaction with others; ii) vulnerability to exploitation from friends in an anxiety to maintain friendships; iii) learning by experience, so that there was a possibility that if the applicant had not experienced anyone else being stabbed he might not have foreseen what would happen; iv) difficulty in understanding that other people have their own plans, thoughts and points of view, and thus having difficulty in anticipating what others will do; v) lacking imagination so as to find it difficult to interpret the likely consequences of another’s behaviour. 26. In the light of this evidence Mr Stanbury argued that the judge who directed the jury not only in terms of an intention required for murder, but also in terms of pre- Jogee foresight (considered in the earlier judgment referred to) would have directed the jury, if he had been aware of the fresh evidence, that the applicant’s condition was capable of impacting upon the applicant’s intentions and his ability to absorb process and foresee the consequences of his own actions and those of others. This was a fast-moving incident and the case had only been put against the applicant on the basis that he was a secondary party to the fatal attack upon the deceased. That necessarily required a careful examination of the applicant’s state of mind at the time of the offence and this had to be considered in the context of the current diagnosis. 27. Additionally, the diagnosis could shed a different light on the applicant’s own behaviour on the bus after the incident. The court has viewed CCTV material recovered from the bus. Mr Stanbury sought to analyse that and dispute that the applicant had shaken Green’s hand. In summing up, the judge had invited the jury to consider whether that was what was depicted and, if so, why the applicant was doing it. We consider that the evidence is capable of demonstrating a handshake and are not prepared to find to the contrary. 28. The matter has to be viewed in the light of evidence from a witness that shortly afterwards the applicant had said that Green was the new boss and the certified boss. He described Green as smiling but not replying. The applicant was saying the words “knife him, knife him” to himself and laughing. That same witness commented that the applicant is often in a world of his own and talks to himself. It seems to us that that evidence was relevant, both in considering whether or not a handshake was depicted shortly beforehand and in considering whether the applicant was showing knowledge and approval of what had been done by Green. 29. Mr Stanbury relied on the witness’s description of the applicant as demonstrating unusual behaviour related to his ASD diagnosis which might have led the jury to take a different view of the applicant’s conduct on the bus. The overall thrust of Mr Stanbury’s submissions was, firstly, that the new evidence should be received by the court, and secondly, that it rendered the conviction unsafe by reason of the absence of any directions to the jury tailored to address the issues of intent and the interpretation of the applicant’s subsequent behaviour. 30. The Crown resisted those submissions. It pointed to the fact that the evidence now relied on significantly post-dated the events surrounding the stabbing and that the evidence showed that there had been a deterioration in the applicant’s condition during the period after remand in custody. The evidence of a later deterioration in ability to absorb and react to an attack such as this did not shed meaningful light on the applicant’s condition at the time. There was ample evidence from which it could be inferred that the applicant had an ability to form the necessary intent and that this would not have been significantly affected by his condition. This was a case in which the applicant had not given evidence so that no suggested direction could have applied to an assessment of the applicant’s evidence. At most it could have been applied to the other evidence about the attack and its preparation and aftermath. On the basis of a later deterioration in the applicant’s condition, the absence of any direction about it did not in the circumstances render the conviction unsafe. 31. As to the evidence of what happened on the bus, the Crown’s submission was that the fresh evidence makes no significant difference to what the evidence showed; it was known to the applicant’s previous legal team at the time of the trial that the applicant tended to behave in an unusual way, but that fact does not qualify the evidence presented, whose importance was to show that the applicant had correctly interpreted the intentions of the participants in the fatal attack and approved of Green’s actions. 32. We accept, as did the Crown, that this applicant suffered from an ASD at the time of the offence. It is clear to us that that condition makes it more difficult for those who suffer from it to appreciate and react to spontaneous events. However, that difficulty is less significant if an offender has had previous relevant experiences or the event is planned. In our judgment, there was much about the events in the park which was not spontaneous or the subject of prior experience by this applicant. There had been at least one previous similar trip to the park for a violent confrontation. This applicant had been seen brandishing a knife on the YouTube clip in the circumstances described. He knew from the gathering at Grove Park that Green was proclaiming an intention to stab a member of the opposition and had personally followed that with a call to those present to provide support. When in Grove Park he was aware that others had knives and that the planned violent confrontation was to take place. 33. It is clear that his subsequent description of events, both in prepared statements put forward when interviewed and to the experts now relied on, minimised his role in events. Whilst care needs to be taken since such minimisation or falsehood does not of course mean that this applicant was not suffering from an ASD, our conclusion that he had not given an accurate account does, to an extent, undermine the basis upon which the two experts approached the matter. 34. We also think it relevant that much closer to the time, highly-qualified experts had not seen the applicant in a condition which showed that his ASD was a significant feature of his mental makeup at the time. The totality of the evidence shows that this applicant’s condition seriously deteriorated after his admission into custody. This is consistent with Dr Murphy’s evidence that the effect of the condition upon the applicant is substantially determined by his environmental circumstances at any given time. 35. This court is required to consider the applicant’s condition as at the time of the offence. It must also consider the effect of that condition upon his actions, and in particular upon his intentions and perceptions at that time. Given that this was not a spontaneous and unexpected event, and given a lack of evidence to show that in May 2010 this applicant’s condition was such as significantly to impact upon his behaviour at the time of the offence, we do not consider that the fresh evidence was of a nature and strength to undermine the safety of the conviction. Accordingly, we decline to receive the fresh evidence under s.23 of the Criminal Appeal Act 1968. The consequence of this is that this renewed application is refused and the conviction for murder remains in place.

2018_07_04-4347.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1555/data.xml

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cee1bb9a4f5beec7098aae348fb7dec980130764a5b74fe0a95acad0083866c6

[2022] EWCA Crim 1300

EWCA_Crim_1300

crown_court

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2022] EWCA Crim 1300 No. 202201071 A2 Royal Courts of Justice Friday, 16 September 2022 Before: LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE HENSHAW REX V ROSS LAMBERT __________ 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 CACD.ACO@opus2.digital _________ MS M SNOWDON appeared on behalf of the Applicant. THE CROWN did not attend and were not represented. _________ JUDGMENT LORD JUSTICE SINGH: 1 This is an appeal against sentence brought with the limited leave of the single judge. 2 On 21 February 2022 in the Crown Court at Liverpool the appellant pleaded guilty to a charge of arson, contrary to section 1(1) and (3) of the Criminal Damage Act 1971. On 16 March 2022 the appellant, then aged 28, was sentenced by Mr Recorder Harris to an extended sentence of nine years, comprising four and a half years’ custodial term and an extension period of four and a half years. He also made a restraining order to prevent the appellant contacting the victim in this case for twelve years and imposed a surcharge order. 3 The facts can be summarised as follows for present purposes. The complainant was Mr Stephen Gilmore. His Jaguar motor vehicle was targeted because he had wrongly been suspected in the community of being a paedophile. At 1.30 a.m. on 24 October 2021 two people approached the vehicle. The appellant had a hammer and smashed the window. The second male lit a petrol bomb and put it into the window which had been smashed. The fire was put out by the complainant who was in his house at the time and heard the banging outside and saw what had gone on. The appellant had wiped his hand on the bonnet of the car, having cut his hand while smashing the window and was identified through DNA which was recovered. He was arrested on 20 January 2022 but made no comment in interview. The total damage to the car was £13,000 and it was written off. 4 The appellant had 15 convictions for 22 offences between February 2007 and June 2018, including 12 offences against the person. The antecedents included offences of battery in 2007, 2008, 2015, 2017 and 2018. They also included an offence of assault occasioning actual bodily harm in 2008; and wounding, contrary to section 20 of the Offences Against the Person Act 1861 in 2009, for which he received an eight-month detention and training order. Most seriously, they included an offence of causing grievous bodily harm with intent, false imprisonment and kidnapping, for which on appeal there was substituted by this court a seven-year extended sentence, comprising a custodial term of four years and an extension period of three years. Initially, in the crown court there had been imposed an indeterminate sentence for public protection. That was in 2011. There were also offences of criminal damage in 2008 and 2009. 5 It is important, briefly, to pause to consider the facts of the previous section 18 offence, for which we have a police report. Those facts state that the appellant had with others assaulted a man hard to the face causing him to fall to the floor unconscious for a while. When he came around he was met by a barrage of punches and kicks from, amongst others, this appellant. When he attempted to run away in an effort to stop them kicking him in the face, he felt hot, scalding water being poured on to his stomach. He said that he needed to go to hospital, but this appellant said he was going nowhere and needed to be tortured, and started laughing. The abuse continued later with this appellant striking the victim several more times. 6 We have been reminded by Ms Snowdon, who has appeared at this hearing for the appellant, that the appellant was only aged 17 at that time, and that offending was over 10 years ago. We have that well in mind. 7 In his sentencing remarks the Recorder said that the risks inherent in this type of misconceived and vigilante behaviour are obvious. The risk of the car exploding and causing damage to other property is also obvious. Fire is uncontrollable, especially when spread by a flammable liquid. This was a residential area and anybody trying to help, such as passers-by, the police, or other services would have been placed at risk. Further, the Recorder said that the effect on Mr Gilmore was an aggravating feature. Mr Gilmore described himself as, "Feeling like a sitting target", and was looking to move home because of this incident. The loss of his car had also affected him financially. 8 The Recorder said that in accordance with counsel's submissions, this case fell into Category 2A by reference to the definitive guideline on such offences, giving a starting point of two years' custody with a suggested range of one to four years, but he continued that there were significant aggravating features. The appellant had committed this offence under the influence of alcohol and cocaine. Further, this was clearly a pre-planned, targeted attack designed to terrify Mr Gilmore regardless of the possible consequences if the fire had taken hold. 9 The Recorder took into account as aggravating factors the appellant's extensive and concerning criminal record, in particular, the previous section 18 offence to which we have referred. It should be noted that inherent in that sentence was a finding that the appellant was dangerous in the statutory sense. The Recorder also said that this offence justified a deterrent punitive and protective sentence to mark the seriousness of the offending and the risks to the public. The Recorder noted that the Pre-sentence Report said that there was an established pattern of intimidating, aggressive and violent offending. The appellant was assessed as a high risk of serious harm to known adults. He was also assessed as posing a high risk of serious harm to the public. He has a clear propensity to use violence in conflict at times of emotional challenge. Further, he clearly lacks insight into the risks that he poses and appears to lack internal self-control. The Recorder thus found the appellant to be dangerous. 10 On the other side of the balance, the Recorder had regard to the mitigation available to the appellant, in particular his guilty plea which entitled him to a 25 per cent discount. The Recorder had considered what was said in the appellant's partner's letter, which we have done as well. We have been reminded at this hearing in succinct and helpful submissions by Ms Snowdon, that limited though personal mitigation was, there was such mitigation available to this appellant. He has, as his partner said in her letter, supported her during a particular a period of illness. He had himself had an unhappy childhood, including domestic abuse. 11 The Recorder considered that although the appellant was dangerous, imposing a life sentence would be disproportionate in this case. Nevertheless, given the aggravating factors in the case, a starting point above the suggested range was appropriate. The Recorder said that if he had been imposing a determinate sentence, the least period of imprisonment he could have imposed was one of six years' imprisonment. After taking into account the guilty plea, that was reduced to four years and six months. The risk posed by the appellant, in the Recorder's opinion, necessitated an extended sentence with an extension period of four years and six months. The Recorder also imposed the restraining order which we have mentioned, as he found it to be necessary and proportionate in terms of the risk posed. 12 The only ground of appeal which is now pursued, leave having been granted on this ground only, is that it was wrong for the Recorder to take a starting point which was two years above the top of the range in the sentencing guideline, so that the overall sentence was manifestly excessive. 13 A second ground, for which leave was refused by the single judge, has not been renewed before the full court. That ground was that the Recorder was wrong to make a finding of dangerousness. It has rightly not been pursued before the full court. 14 The Sentencing Council, as we have mentioned, has issued a definitive guideline for offences of arson with effect from 1 October 2019. Step 1 is to determine the offence category by reference to culpability and harm. High culpability (A) includes cases where there is a high degree of planning or premeditation and the use of an accelerant. Category 1 harm cases include where there is serious physical and/or psychological harm caused, serious consequential economic or social impact of the offence or high value damage is caused. It was common ground before the Recorder that this was a Category 2 case in terms of harm because it did not fall within either Category 1 or Category 3 which covers cases where there is no or minimal physical and/or psychological harm caused and low value damage is caused. 15 We would pause to remark that this case could have been regarded as a category 1 case, certainly once one has regard to the aggravating features, or it could properly have been regarded as being on the cusp between Categories 1 and 2. In any event, the suggested range in a Category 2A case is one to four years' custody. As the recorder observed, it is then possible to go above the starting point when one has regard to the very serious aggravating features in this case. 16 In our judgment, the Recorder was entitled to take a starting point of six years and then reduce that by 25 per cent to reflect the guilty plea. Accordingly, we have come to the conclusion that the sentence passed was not manifestly excessive. 17 For the reasons we have given this appeal is dismissed. __________

2022_09_16-5439.xml

dismissed

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ac2177dc550cd3d0270196d3c160565291c0a130b3e7b7c6a830d811705489ac

[2008] EWCA Crim 676

EWCA_Crim_676

crown_court

No: 200800059/A6 Neutral Citation Number: [2008] EWCA Crim 676 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 7th March 2008 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE BLAKE MR JUSTICE PLENDER - - - - - - - - - - - - - - - - - - - - - R E G I N A v GHEORGE BOGOSLOV - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street

No: 200800059/A6 Neutral Citation Number: [2008] EWCA Crim 676 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 7th March 2008 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE BLAKE MR JUSTICE PLENDER - - - - - - - - - - - - - - - - - - - - - R E G I N A v GHEORGE BOGOSLOV - - - - - - - - - - - - - - - - - - - - - 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 Dogra appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE BLAKE: On 25th October 2007 in the Crown Court at Wood Green, this appellant pleaded guilty to four counts of possession of a false identity document, pursuant to section 25(5) of the Identity Cards Act 2006 . On 7th December 2007 he was sentenced by Mr Recorder Sheridan to 2 years' imprisonment on each of those counts to run concurrently and was also recommended for deportation. His application for permission to appeal against sentence on the grounds that the sentence was manifestly excessive was referred to the Full Court by the Registrar. We grant permission to appeal. 2. The facts of this matter are that the appellant is a Romanian national who has been living in the United Kingdom lawfully for a number of years with his Romanian partner also lawfully resident here. He is a businessman who fell out with his business partner. A conflict arose between them that resulted in public order charges being brought. Those charges were disputed and, in the light of the sentences passed for the passport offences, the prosecution offered no evidence on them rather than remit them to the Magistrates' Court for summary trial. 3. Following the argument between the business partners, this appellant's business partner discovered a bag in the appellant's possession containing a number of counterfeit European Union passports in different names, each with the appellant's photograph in it, as well as correspondence Visa cards and other material in other names. The partner reported the partner to the police. The appellant was arrested and subsequently charged with possession of four European Union passports three Italian and one Danish all which were found to be counterfeit. The appellant gave a "no comment" interview on arrest. He subsequently advanced an explanation for his possession of the passports, namely that he had been given them as a security for a business debt but the Recorder rejected and was entitled to reject that explanation. The position, thus, was that the appellant was to be sentenced on his guilty plea, tendered at the first opportunity for unexplained possession of these false passports. 4. Possession of false passports is a serious offence that will almost certainly lead to a sentence of immediate imprisonment. It should however be noted that the appellant was a Romanian citizen, who was in possession of his own valid Romanian passport. He was at the time of these offences a citizen of the European Union, Romania having acceded to the union on 1st January 2007. Even before that he would have had residency rights as a businessman by reason of the Europe Association Agreements between the EU and Romania. 5. It would appear therefore he had no need of any false passport to enter, remain, work, or secure any other benefits in this country. Further, he was charged with the simple offence of possession for which the maximum sentence was 2 years rather than the aggravated offence of possession with intention to use the documents for a particular purpose, for which the maximum sentence was 10 years. Although there was more than one passport in his possession the greater number could properly be reflected in the length of the sentence to be imposed for the single occasion of possession of these materials. 6. It appears the matter had previously come before the Recorder on 9th November, when the prosecution facts were outlined, as indicated above, and it seems that at the request of the court the matter was adjourned Form IMM3 to be served, and further enquiries to be made as to the appellant's identity. The result of those enquiries, as confirmed to this Court today, were that the immigration authorities had no reason to doubt the identity of the appellant, the authenticity of his passport and the basis of his lawful residence here. Moreover, there were no traces of any of the names used in the passports or other correspondence that might have alerted the authorities to broader security or criminal concerns. 7. However, when the matter came before the Recorder for sentencing, he made no secret of the view that he took. First, he roundly criticised the Crown Prosecution Service for merely charging the simple offence of possession rather than the aggravated offence. He said: "The Crown Prosecution Service needs a severe lesson in how to charge properly in cases like this. A two year maximum when somebody has false passports... It is not crime in this country in terms of shoplifting or something like that, you do not need a passport. This is for international criminal travel. That is the only reason why you need it, he had a genuine passport and that is what I would like to be assisted on..." Secondly, as indicated, he took the view, unassisted by any submissions of prosecuting counsel in opening the case on this or the previous occasion, that the reason why this appellant had these passports was that it would allow him to cross borders. He asked himself the question: "Am I entitled to have regard to the fact that this country at the moment is under a state of threat from international crime and terrorism as part of the sentencing exercise?" Thirdly, he indicated that the level of sentence that he was minded to impose was to be found by reference to the judgment of this Court in the case of R v Kolawole [2005] 2 Cr App R(S) 14, where use or possession with intent to use a forged passport, for a person of good character, there was an indication of a sentencing range of 12 to 18 months should follow. That was under the precursor of the legislation with which this Court is now concerned. Fourth, the Recorder indicated he was proposing to pass consecutive sentences to compensate for the restrictions imposed by the maximum sentence. Fifth, he indicated that he was considering making a recommendation for deportation and professed some expertise in the topic as he said that he had been prosecuting counsel in the case of Carmona , to which further reference will be made. 8. All of this was before mitigation was advanced or indeed any further submissions had been made by the Crown Prosecution Service on 7th December 2007. The Recorder seems to have very much descended into the arena of formulating the case against the appellant rather than impartially adjudicating on the case that was in fact presented against him. 9. Mitigation remarks then followed and the Recorder appears to have accepted that on the authority of Kolawole , to which reference has already been made, that it was wrong in principle to pass consecutive sentences for possession of four passports found on the same occasion. He said that case made it perfectly clear that it was bad sentencing practice to impose consecutive sentences in relation to two different passports. We agree that in this sort of case the number of documents can be reflected in the level of seriousness and the higher appropriate term within the statutory maximum. However, the Recorder did not give effect to this recognition in the sentence he proceeded to pass. He said: "In view of your pleas and everything, as I say, most ably said by your counsel, in including your previous good character, and I do approach it on the basis of previous good character, I am going to impose in this case sentences of two years, which is the maximum that can impose on any one count, but to reflect credit for your plea I am not passing consecutive sentences. They will be all concurrent, a sentence of two years on each concurrent." 10. If it was wrong in principle to impose consecutive sentences, the Recorder was wrong in seeking to give credit for an early plea by not imposing consecutive sentences. In our judgment, having sentenced this appellant to the maximum sentence of 2 years' imprisonment, he failed to give any credit for his plea of guilty. He was wrong to do so, even if he was entitled to make some discount from the full one-third by the reason of the strength of the evidence. Further, he was misled, by his own observations, on the underlying criminality that he found in this case, with respect to the correct starting point. As has been submitted before us today by Mr Dogra, and was abundantly clear from the then current edition of Archbold at paragraph 22 - 45A and the authority of De Oliveira [2006] 2 Cr App R(S) 115, it is important to distinguish between the simple offence of possession and the aggravated offence of possession with intent, and using one authority as a sentence guideline for the other, leads to confusion. 11. In De Oliveira itself the Court concluded that simple possession of a single forged passport, by someone who was not an EU national, should lead to a sentence of 8 months' imprisonment upon his guilty plea. In our judgment, it was not open to the Recorder to sentence this appellant for an offence of which he had not been charged, and had maximum penalty of five times higher than the offence charged. Further, he was not entitled to sentence on a version of facts which was clearly not substantiated by the prosecution case. But we have no doubt this was what was done in this case. He said this: "You had four false passports plus your own legitimate one so that you can cross borders and that is for one reason only, you do not need four passports, three Italian and a Danish passport to enable you to live and work in this country. You do not need them even to commit crime in this country. You have them because you intend to cross borders with international travel. You can only do that with criminal intent, because if it were not with that, you would not need or use the passports when you have a legitimate one and that is the background to this case and it is those considerations that I must have in mind. This country at the moment is under threat from those who seek criminally to cross borders for their own criminal reasons and not least the usurpation and the breach of the border controls is a greater burden on the tax payer and a threat to public security. In particular, if the courts do not hand down draconian sentences then the terrorists see green light and carry on as before. In this case in mitigation what can be properly be advanced... My original approach was to pass consecutive sentences, because two passports are worse than one, four smack of serious criminal intent. And it is certainly not a question of you staying here as a cleaner... So the background, therefore, is this, you had them for a criminal intent of an international type." 12. It is unclear precisely where the Recorder drew that information from, or what precisely he was suggesting was the use to which this appellant was going to make of these passports. Certainly there was no evidence that we can discern that would have entitled him to reach those conclusions. In the circumstances, recognising that the number of passports made this a serious offence of possession, we conclude on a fight the appropriate term would be in the region of 18 months but, on a plea, the appropriate sentence will be 12 months' imprisonment. We therefore quash the sentences of 2 years imposed and substitute for them, on each count concurrent, a sentence of 12 months' imprisonment. 13. As to the recommendation for deportation the Recorder said this: "It is, not mincing my words, linked to international criminal travel, which means international crime. Put bluntly, we have enough criminals of our own in this country that we are stuck with, but we do not have to tolerate and put up with those who come here from other countries. Whether you came here innocently and honestly in the first place is one thing, but you have now chosen to take a course that frankly is unacceptable." Later on he said: "You have human rights, of course you do, and I must have regard to them, but I must also have regard to the human rights of everybody else in this country, the honest tax payer, the honest workers in this country who are entitled to be protected, who are entitled to have the border secure from international criminals. I do not think you are a terrorist, I do not have to resolve that and I am approaching it on the basis you are not. But you are linked with international crime. You have got to be to have those passports for criminal international travel.... But what I am more than satisfied, I am overwhelmingly convinced that your continued presence in this country is a detriment to the public good and in those circumstances I am making a recommendation to the Home Secretary that you be deported and be deported as soon as you have completed your sentence and not be permitted to return." He said was grateful to the officer who conducted the enquiries that the Recorder had asked for but he said that the result of those enquiries did not save the appellant from the recommendation he was minded to impose. He said at the end of his sentencing remarks: "If the Home Secretary upholds my recommendation... and the position then is that the Home Secretary having deported you should ensure that your identity, face and fingerprints and the like are well known so that you are not permitted back in this country. You have no, in my view, no public good to serve by remaining in this country, nor returning to it." As was apparent by the time of the sentence, the appellant was a citizen of the European Union and very different principles apply to such citizens than to those who have no right to enter or remain here. The rights of entry and residence within the Member States of the European Union are very important rights which can only be derogated from in strictly confined circumstances, according to the principles of community law reflected in both the legislation and the case law of the European Court of Justice. 14. Those principles are now set out in Directive 2004 38/EC of 29th April 2004 which came into force on 30th April 2006. Article 27 says in the first paragraph: "Subject to the provisions of this Chapter Member States may restrict the freedom of movement and residence of Union citizens and their family members irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. (2) Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted." Article 28, at paragraph 1 provides as follows: "Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural interrogation into the host Member State and the extent of his/her links with the country of origin." There are even greater rights for those who have rights to remain permanently in the Member State, usually granted after 5 years residence, and even more extensive rights for those who have had 10 years' residence. It is not necessary to recite those parts of the directive in this case. 15. This has also been the clear thrust of the extensive case law from the European Court of Justice. The principles were summarised in the case of Omer Nazli and Stad Nurnberg C340/97, [2000] ECR 1, 957 . This was a case of Turkish national, who had treaty rights under the association agreement who had committed drug offences. The court said at paragraph 57: "In the context of Community law and, in particular, of Article 48(3) of the Treaty, it has been consistently held that the concept of public policy presupposes, in addition to the disturbance of the social order which any infringement of the law involves, the existence of a genuine and sufficient serious threat to one of the fundamental interests of society... 58. While a Member State may consider that the use of drugs constitutes a danger for society such as to justify, in order to maintain public order, special measures against aliens who contravene its laws on drugs, the public policy exception, like all derogates from a fundamental principle of the Treaty, must nevertheless be interpreted restrictively, so that the existence of a criminal conviction can justify expulsion only in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy... 59. The Court has thus concluded that Community law precludes the expulsion of a national of a Member State on general preventive grounds, that is say an expulsion ordered for the purpose of deterring other aliens... especially where that measure has automatically followed a criminal conviction..." 16. As this court has confirmed in the case of Carmona [2006] 2 Cr App R(S) 662, the criminal courts cannot make a recommendation for deportation in respect of an EU national, which would conflict with those criteria of community law. Carmona itself as an authority was concerned with the relevance of family life of aliens rather then the EU law concept of detriment and proportionality that are the applicable questions to be determined here. Carmona , it should be noted, also recognised the imminent coming into force of the Directive, which has been noted earlier in this judgment and thus binds the Court. 17. We have no doubt that in his remarks on recommendation for deportation the Recorder was expressly using deportation as a deterrent to others, based upon his understanding of the supposed international criminal activity akin to terrorism served in this case. None of this was appropriate on the facts of this case. There was no personal conduct identified in the remarks we make, which it was open to him to find constituted a present danger to the security of this country. So this part of the sentence must also be set aside. 18. Of course it is open to the Secretary of State to institute deportation proceedings against him, for which there will be a full right of appeal in the Asylum and Immigration Tribunal, if he has credible information on which he can base a claim that the appellant on release will represent a danger to this country. 19. This appeal will therefore allowed. The sentence will be quashed. The sentence of 12 months' imprisonment will be substituted. One hundred and two days spent on remand will count towards the sentence, pursuant to section 240 of the Criminal Justice Act 2003 . 20. LORD JUSTICE HOOPER: You had an application? 21. MR DOGRA: Can I make an application for a defendant's costs order? 22. LORD JUSTICE HOOPER: Are you not here under the legal aid order. 23. MR DOGRA: I am but the advice given to me and advice grounds settled prior to that order being granted was funded privately by a third party. 24. LORD JUSTICE HOOPER: Yes, agreed, yes.

2008_03_07-1421.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/676/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/676

d052299f4efb473042004bff3242264b054240f12fca91cd358219606cfdf968

[2009] EWCA Crim 648

EWCA_Crim_648

crown_court

Neutral Citation Number: [2009] EWCA Crim 648 Case No: 200806774 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 12th March 2009 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE TUGENDHAT MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - R E G I N A v SCOTT ANTHONY LINEGAR - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 19

Neutral Citation Number: [2009] EWCA Crim 648 Case No: 200806774 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 12th March 2009 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE TUGENDHAT MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - R E G I N A v SCOTT ANTHONY LINEGAR - - - - - - - - - - - - - - - - - - - - - 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 R Hynes appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE AIKENS: This is an appeal against sentence with the leave of the single judge. On 22nd October 2008 at the Crown Court at Southwark, before His Honour Judge Gledhill QC, the appellant pleaded guilty to two counts of converting criminal property contrary to section 327 of the Proceeds of Crime Act 2002 , and to three counts of possession of criminal property contrary to section 329 of the same Act. He was also convicted of one count of engaging in the provision of unlicensed personal credit agreements contrary to section 39(1) of the Consumer Credit Act 1974 . 2. On 19th November 2008 the appellant was sentenced to 15 months' imprisonment for the Consumer Credit Act offence and to 2 years' imprisonment for each of the five Proceeds of Crime Act offences, those latter sentences to be served concurrently the one with the other but consecutively to the Consumer Credit Act offence sentence. The total sentence was thus 3 years and 3 months' imprisonment. The judge made a direction under section 240 of the Criminal Justice Act 2003 that the 146 days spent by the appellant on remand should count towards that total sentence. 3. The particulars of the section 39 offence under the Consumer Credit Act 1974 were that between 1st April 2003 and 19th August 2005 the appellant engaged in the provision of personal credit agreements when he did not have a licence covering those activities. That count, therefore, is aimed at the failure to have a licence, as is required under the statutory provisions. The essence of the offence is the lack of the licence. 4. The two section 327 of the Proceeds of Crime Act counts (ie, those of converting criminal property) related respectively to a sum of £15,000 which had been used to buy a Mercedes car, and the sum of £46,055 which had been used in the purchase of a property in Orpington, South London. The particulars of offence identified the criminal conduct in respect of those two counts as "drug trafficking and/or unlicensed money lending". However, there was before the sentencing judge a written basis of plea stating that the money in each case constituted the proceeds of unlicensed money lending only. 5. The three section 329 counts related to sums of cash, namely £40,510, £3,300 and £29,720. These sums of cash were recovered respectively from the Mercedes car, the address in Orpington and the appellant's mother-in-law. Again, the particulars of offence had identified the relevant criminal conduct as being "drug trafficking and/or unlicensed money lending". The same written basis of plea stated that the money sums were the proceeds of unlicensed money lending only. 6. These matters came to the attention of the police when the Mercedes car was found abandoned after a crash and had been falsely reported as stolen. In it was not only the £46,520 cash to which we have referred, but also a mobile phone which was linked to the appellant. There were various documents in the car which were consistent with a business of unlicensed money lending. Some of the cash recovered was found to be contaminated with cannabis residue. 7. In interview, the appellant made admissions. One of those was that he had £780,000 in cash, but he would not reveal the whereabouts of that sum. 8. When the judge passed sentence, he made a number of comments on the mode of operation of the appellant in carrying out his unlicensed business of providing personal credit agreements. It is clear from those remarks, and from the way that the matter was opened before the judge by the prosecution, that the appellant had used verbal threats (at least) to ensure that he was repaid loans he had made. Texts found on mobile phones that were associated with the appellant showed that he was prepared to threaten thuggish activities and was prepared to use racist verbal threats. It is not surprising, therefore, that the judge characterised the activities of the appellant as those of a "loan shark". 9. Under Parts II and III of the Consumer Credit Act 1974 , certain activities require to be licensed. These include the provision of personal credit agreements whereby an individual provides credit to another individual up to any amount: see section 8(1) defining "personal credit agreement" and section 21 of that Act. 10. Section 39(1) of that Act states that a person who engages in an activity for which a licence is required when he is not a licensee and under a licence covering those activities, commits an offence. Section 167 and Schedule 1 of the Consumer Credit Act stipulate the penalties for such an offence. The maximum for an offence under section 39(1) is 2 years on indictment, as the judge stated correctly. 11. By section 327 of the Proceeds of Crime Act 2002 , a person commits an offence if he converts criminal property. By section 329 of the same Act, a person commits an offence if he has possession of criminal property. "Criminal property" is defined in section 340(3) of the Act as being a person's benefit from criminal conduct or that which represents such benefits, and the alleged offender knows or suspects that the property constitutes or represents such a benefit. 12. Those definitions are all important in the context of the argument put forward on behalf of the appellant by Mr Hynes. The argument, which was advanced both in writing and orally in a very attractive and persuasive manner is, in essence, this: the principal offence in this case is the provision of unlicensed credit agreements contrary to section 39(1) of the Consumer Credit Act 1974 . That is, as it were, the anchor of the whole indictment. The maximum sentence on indictment for that offence is 2 years. The Proceeds of Crime Act offences are subordinate to the "anchor" offence in this particular case. That is because the criminal property, whether it be the money or the Mercedes or the house in Orpington, are no more than the fruits that the appellant obtained as a result of engaging in the principal offence of carrying on the unlicensed provision of personal credit agreements. Therefore, the Proceeds of Crime Act offences form a part and parcel of the principal offence. Accordingly, on principle, the sentences for the Proceeds of Crime Act offences should not attract consecutive sentences. The sentences for those offences should be concurrent and, what is more, they should be no greater than the sentence passed in respect of the principal offence. As the maximum sentence for the principal offence was only 2 years, therefore the judge should not only have passed concurrent sentences in respect of the Proceeds of Crime Act offences, but he should also have reduced the amount of such sentences to take account of the guilty plea. Accordingly, the total sentence should have been no more than 15 months in this case. 13. As we say, this is a beguiling argument and was advanced attractively. However, it is, in our view, entirely fallacious. Let us clean away some suggested contrary arguments straight away. First, we emphasise that the appellant was not charged with any offence concerning the manner in which he conducted his unlicensed personal credit business, other than the offence of conducting it without a licence. He was not charged with blackmail or with using threatening words or behaviour, or any like offence. Nor was he charged with any offence of cheating the revenue or such like. Therefore the sentence under section 39(1) of the Consumer Credit Act and the sentence under the two Proceeds of Crime Act offences cannot legitimately take account of any alleged thuggish and racist manner in which the appellant went about collecting loans which he had made to his doubtless desperate customers. 14. Secondly, we entirely accept the basis of plea for the purpose of our consideration of the proper sentence in this case. The criminal property identified and the particulars of offences on counts 1, 2, 4 and 5 were the result of unlicensed provision of personal credit agreements. They were not the result of drug dealing, whatever the appellant's debtors may themselves have been engaged in. That, for the purposes of this case, is entirely irrelevant, because there is no finding or admission about the appellant's knowledge of that issue. 15. However, none of this detracts, in our view, from the fact that the Proceeds of Crime Act offences are entirely independent of the Consumer Credit Act offence. As a result of the Consumer Credit Act offence, the appellant was able to obtain from his victims (because that is what they were) both repayment of the principal sum that he had lent and interest on that personal credit that he had advanced to them without a licence. That interest was doubtless charged at "commercial rates", at the very lowest. The returned principal sum and the interest thereon constitutes the criminal property that the appellant obtained as a result of the crime of providing personal credit agreements without a licence. The principal and interest is the criminal property which, by virtue of his guilty pleas to counts 1, 2, 4 and 5, he has admitted that he possessed and converted. Mr Hynes accepted before us that the returned principal sums capital and the interest thereon that was obtained by the appellant constituted the relevant "criminal property" for the purposes of the Proceeds of Crime Act offences. 16. On this analysis, it would have been possible to have constructed the indictment without having on it count 9 at all; in other words, without having on it the antecedent offence of providing without a licence personal credit agreements. Mr Hynes accepted, as we understood it, that this was so. 17. However, in our view, this concession entirely undermines his argument. By section 329 of the Proceeds of Crime Act 2002 , the simple possession of criminal property is, by itself, a crime. That is quite independent of any anterior offence, in this case of engaging in unlicensed activities concerning the provision of personal credit agreements. The mischief in possessing criminal property is that it enables the criminal to engage further in his criminal activities, whatever they might be. As Cooke J put it in the case of Basra [2002] EWCA Crim 541 , it "encourages and nourishes crime in general". 18. By section 327 of the Proceeds of Crime Act 2002 , the converting of criminal property is itself a crime. That again is quite independent of any anterior offence, in this case that of engaging in unlicensed provision of personal criminal agreement. "Converting" involves some kind of action: doing something to something else. Here the appellant converted the cash that he had obtained from his victims into a car and property. These actions were, in common language, laundering the money which was the proceeds of his criminal activity. That process hides those criminal activities. It enables the criminal more easily to escape detection. It provides an apparently innocent cover for the criminal activity. In our view, the acts of possessing and converting criminal property are pernicious. That is why those crimes have a maximum sentence of 4 years. 19. Accordingly, despite the somewhat charged language of the judge, he was entirely justified in imposing consecutive sentences for what were, on our analysis, entirely independent offences. Moreover, we consider that the sentences of 2 years for the Proceeds of Crime Act offences were themselves entirely justified. Nor can it be said, on the facts, that they are out of proportion to the sentence imposed for the Consumer Credit Act offence. They are consistent with the guilty pleas and the other mitigation advanced on behalf of the appellant. The total of the sentences is not manifestly excessive. 20. Therefore, this appeal must be dismissed.

2009_03_12-1862.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/648/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/648

8dda692a6573878c3aaba258a2cdaf90f23f0db1f53a0c3135dffdaf7b362702

[2023] EWCA Crim 1464

EWCA_Crim_1464

crown_court

Neutral Citation Number: [2023] EWCA Crim 1464 Case No: 202301678 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE LIVERPOOL CROWN COURT HHJ Watson KC T20210975 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/12/2023 Before : PRESIDENT OF THE KING’S BENCH DIVISION MR JUSTICE BENNATHAN and HH JUDGE GUY KEARL KC - - - - - - - - - - - - - - - - - - - - - Between : Mohammed Adnan Ali Appellant - and - Rex Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2023] EWCA Crim 1464 Case No: 202301678 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE LIVERPOOL CROWN COURT HHJ Watson KC T20210975 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/12/2023 Before : PRESIDENT OF THE KING’S BENCH DIVISION MR JUSTICE BENNATHAN and HH JUDGE GUY KEARL KC - - - - - - - - - - - - - - - - - - - - - Between : Mohammed Adnan Ali Appellant - and - Rex Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jane Osborne KC and Katy Appleton (instructed by Brooklyn Law Solicitors ) for the Appellant Anne Whyte KC and Martin Reid (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 22 nd November 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30pm on 7 th December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. 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. Dame Victoria Sharp, P : Introduction 1. On 24 April 2023, following a trial in the Crown Court at Liverpool before His Honour Judge Watson KC and a jury, the applicant was convicted of 15 counts of misconduct in public office and 5 counts of sexual assault. On 23 June 2023 he was sentenced to a total of 5 years’ imprisonment, made up of sentences of between 2 and 3 years for each of the sexual assaults, and of 5 years for each offence of misconduct in public office, with all the sentences to run concurrently. 2. The applicant applies for leave to appeal against conviction and sentence. Those applications have been referred to the Court by the Registrar of Criminal Appeals. The conviction application relates to the following counts of misconduct in public office: counts 1, 3, 4, 5, 7, 13, 14, 15, 16, 17 and 20. There is no conviction application therefore for the remaining misconduct in public office convictions (counts 6, 18 and 19), nor for the sexual assault counts (counts 2, 8, 9, 10, 11 and 12). The sentence application relates to all counts. 3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the 5 counts of sexual assault. 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 complainant of that offence. There are no reporting restrictions in respect of the offences of misconduct in public office. However, care will need to be taken in reporting the name or details of any complainants in the misconduct offences to ensure that they are not also complainants in the sexual assault offences. The facts and the prosecution 4. The applicant joined Greater Manchester Police as a special constable in 2007 and became a full-time police constable in 2009. In 2013 he was injured in the line of duty, returning to work the following year. From the summer of 2013 he had the voluntary role of Trafford Police Cadet Leader, which put him in charge of cadets. 5. It is necessary to say something about the cadet and apprenticeship schemes as they were operated by the Greater Manchester Police (GMP) at the material time. The intention of the cadet scheme was to improve young people’s opportunities and life skills in some of the more disadvantaged areas of the country. The scheme was designed to promote and encourage a practical interest in policing amongst young people aged between 13 and 17 years old, and to provide training which would encourage positive leadership within communities and develop qualities of good citizenship. The scheme aimed to have a minimum of 25 per cent of the total cadets who were considered to be “vulnerable” either to crime (committing or being a victim), to exclusion, or to abuse. The scheme was to include those at risk of offending or re-offending. Each unit had a leader (a police officer or a PSCO). 6. The apprenticeship scheme was launched in 2013. It was designed to create opportunities within GMP for young people aged 16 and upwards. The scheme combined training and employment for young people. Apprentices performed an important role working alongside Police Officers and staff in a variety of teams providing administrative support, and were given training and support to assist with progression into permanent positions within GMP. GMP apprenticeships lasted 12 months, in which apprentices studied an intermediate apprenticeship in Business Administration or in Customer Service. There were a number of apprentices allocated to the Trafford Volunteer Police Cadets, who worked at Stretford police station. 7. From July 2016 the applicant was Trafford District Student Officer Development and Assessment Coordinator which meant that he supervised the two apprentices appointed to Stratford Police Station, and was dealing with 16 and 17 year olds who were civilian apprentices on a daily basis. The applicant was aged between 29 and 32 during the period covered by the indictment. Many of the cadets and apprentices were hoping to become, or were at least considering becoming, full time police officers. The Cadet Scheme had a reporting chain, but the identity of the senior officer responsible for cadets changed frequently, so in reality the applicant was also in day-to-day control of the Cadet Scheme. For economy of reference, we will use the term “cadets” to encompass both cadets and apprentices in this judgment. 8. In October 2018, the senior officers in Trafford District were made aware of an inappropriate text message conversation between the applicant and a cadet. The applicant was arrested and suspended from duty while an investigation was carried out. A number of further complainants then came forward. Each reported sexualised behaviour by the applicant towards them, in the form of sexual assaults, inappropriate telephone or social media messages, and verbal comments. The indictment period was between 1 October 2015 and 21 October 2018 and there were nine complainants. The complainants were all young. It is not necessary to name any of them, and to avoid the risk that doing so will lead to the identification of those complainants protected by the provisions of the Sexual Offences (Amendment) Act 1992 , we shall refer to all of them by initials. 9. We can summarise the various allegations as follows: i) Count 1: JM, aged 16; the applicant sent him sexualised messages and images; ii) Count 2 (sexual assault): SH, aged 15; the applicant placed his hand on her thigh in a car; iii) Counts 3, 4: JB, aged 17; the applicant placed hands on his shoulders and made sexualised remarks; iv) Count 5: BH, aged 17; the applicant sent sexualised remarks and messages; v) Counts 6, 7: CC, aged 16-18; the applicant sent inappropriate images and sexualised messages; vi) Counts 8, 9, 10 (8 and 9 are sexual assault): CB, aged 18; the applicant took her to his room and kissed her; he touched her leg under a table; he offered to send her picture of his penis; vii) Counts 11-16 (11 and 12 are sexual assault): JR, aged 16 or 17; the applicant massaged his shoulders, ran his hands down his chest and onto his groin and touched his penis over clothing, and on a separate occasion stroked his side in a sexual way; the applicant sent sexualised messages and images; the applicant made suggestive remarks; viii) Counts 17-19: JL, aged 17; the applicant made sexualised remarks and sent sexualised messages; ix) Count 20: JV, aged 17; the applicant made sexualised remarks. 10. At trial, the prosecution relied on the complainants’ evidence, evidence of complaint prior to matters being formally reported, and social media and internet-based messaging which had been retrieved predominantly from the applicant’s phone. The messaging, which formed the basis of most of the misconduct counts, was alleged to have taken place by SMS and over platforms including Twitter, WhatsApp and Snapchat. The prosecution relied upon the following aspects of the retrieved messages to demonstrate that the messaging was so inappropriate as to amount to misconduct: i) Messages sent by the applicant stating that he was having, or about to have, a bath, or about aspects of his “morning routine”; ii) Messages that had kisses at the end of them, sometimes multiple kisses; iii) Requests for the complainants to send the applicant picture messages; iv) In one instance, explicit messages about sexual acts between the applicant and complainant (though with no evidence that these had in fact occurred); v) Messages sent at unconventional times of day, including very late at night; 11. The prosecution further relied on: i) Evidence given by those complainants that engaged with the applicant in these “conversations”, that they did so because they were concerned about the potential impact upon their future career (with the police force) if they did not. One complainant said he went as far as sending intimate pictures back, but only because he wanted to keep the applicant “on side” while he was waiting for the result of his police apprentice interview. ii) Evidence from some of the complainants that photographs were sent to them via Snapchat which showed the applicant in his pyjamas or underwear and in two cases with his genitals visible. The sending of such photographs was the subject of counts 6, 13 and 14. These images were sent on Snapchat and were not therefore saved. However, similar photographs were identified on the camera roll of the applicant’s phone, albeit there was no direct evidence that those specific images had been sent to any of the complainants. 12. The prosecution also relied on guidance provided by the GMP to those, such as the applicant, in leadership roles with cadets. The jury were provided with this guidance in written form. The ‘Dos’ included: Provide good example of acceptable behaviour; Avoid situations that compromise your relationship with young people within a relationship of trust; Recognise the boundaries between personal and professional life; Make sure your actions cannot be misunderstood; Promote and ensure the welfare of young people. The ‘Don’ts’ included: Do not take young people to your home or any other place where you will be alone with them; Do not allow or engage in any form of sexual innuendo, flirting or inappropriate gestures and terms; Do not allow or engage in any form of inappropriate touching; Do not make sexually suggestive comments to either a child or young person. 13. The prosecution also adduced evidence of the aftermath of the applicant’s conduct. Superintendent Caroline Hemingway held a meeting with cadets and their parents after the applicant’s arrest: she described the “ shock, surprise, disbelief, confusion and some anger ” expressed by parents who had entrusted their children to the cadet scheme. 14. The defence case was made clear in the applicant’s prepared statements when interviewed under caution and in the conduct of his case at trial. A number of interviews were conducted with the applicant as each complainant came forward and provided evidence. In those interviews, the applicant made no comment but provided prepared statements which in broad terms stated that he had not sought to take advantage of his position in order to try to secure a sexual or improper emotional relationship with any of the complainants, that he had never touched any of the cadets or apprentices inappropriately, and that he had not spent time alone with any cadets who were not cadet leaders, or over the age of 16. At trial, the applicant did not give evidence nor were any witnesses called on his behalf. In relation to the allegations of misconduct in public office, the applicant through cross-examination of the complainants, accepted that messages were sent by him to the various complainants on WhatsApp, Twitter and on Snapchat, but denied that messages either were, were intended to be, or were to be interpreted as, inappropriate. He accepted that “snaps” had been sent to a number of the complainants by Snapchat but denied that any of these had been inappropriate photographs, save for one image sent to JL after his eighteenth birthday. The applicant denied that requests for inappropriate photographs were made on Snapchat. 15. The central arguments for the jury on the misconduct in public office counts were, first, whether the applicant’s complained-of activities were carried out when he was acting as a public officer; and, second, whether his conduct was so serious as to amount to an abuse of the public’s trust, in other words, whether the jury could be sure it was of such seriousness that they should find it to be criminal. 16. At the conclusion of the prosecution case, counsel for the applicant submitted that there was insufficient evidence for a reasonable jury, properly directed, to convict on the following misconduct in public office counts: counts 1, 3, 4, 5, 7, 10, 13, 14, 15, 16, 17 and 20. The submissions related to the two distinct legal elements of the offence. The first submission (relevant to counts 3, 4, 5, 13, 14, 15, 16 and 20) was that there was insufficient evidence that the applicant was a public officer acting as such , at the time of those events. The second submission was that the misconduct alleged in counts 1, 3, 4, 5, 7, 17 and 20 was not misconduct of such a degree as to amount to an abuse of the public’s trust. The judge rejected both of those submissions. 17. The judge then dealt with the individual counts that were the subject of submissions, holding as follows: i) Count 1 : The applicant had interviewed JM for an apprenticeship and was involved in assisting him with a vetting appeal. The submission was limited to the second limb. The judge was satisfied that the circumstances in which the messages and photographs were sent (including a photograph of his bathwater when the applicant was in the bath, messages about needing a massage, and needing someone to scrub his back) were such that the jury would be entitled to conclude that the applicant had a sexual motivation in these communications. As such the jury would be entitled to conclude this was sufficiently grave to amount to a crime. ii) Count 3 and 4: The submission was made on both limbs. JB was a cadet at Trafford under the applicant who was the unit leader. JB was also an employed police apprentice under the applicant from August 2016. The judge was satisfied that in the circumstances which existed at the time of the alleged misconduct the jury would be entitled to conclude that the applicant’s actions occurred whilst he was acting as a public official either as cadet unit leader or as the police officer supervising a police apprentice. The judge was also satisfied that the alleged conduct underlying count 3, (in which the applicant placed hands on JB’s shoulders and suggested that JB should go to the applicant’s house to have a massage lying down) and count 4 (in which the applicant asked about JB’s virginity, his sexuality, and sexual positions) was such that the jury would be entitled to conclude that the applicant had a sexual motivation. The jury would be entitled to conclude this was sufficiently grave to amount to a crime. iii) Count 5: The submission was made on both limbs. BH was a cadet at Trafford under the applicant who was the unit leader. The Judge was satisfied that at the time of the alleged misconduct the jury would be entitled to conclude that the applicant’s actions were while he was acting as a public official as cadet unit leader. The judge was also satisfied that the circumstances in which the applicant made comments to BH about a broad range of intimate sexual matters were such that the jury would be entitled to conclude that the applicant had a sexual motivation. The jury would be entitled to conclude this was sufficiently grave to amount to a crime. iv) Count 7 : The submission was made on the second limb. CC was a cadet and cadet leader under the applicant, who was the unit leader. In count 6, the applicant sent CC images of himself in underwear, in the bath, and on bed sheets and it was agreed these were such that the jury would be entitled to conclude that the applicant had a sexual motivation. In count 7, the judge was satisfied that the circumstances in which the applicant sent CC messages about his morning routine, about needing a massage, and which read ‘just lay in bed…wish you were here xx’ were such that the jury would be entitled to conclude that he had a sexual motivation. As such, he concluded that it was open to the jury to conclude this conduct was sufficiently grave as to amount to a crime. v) Count 10: CB alleged she was sexually assaulted in counts 8 and 9 and no submission was made on these counts. On count 10, the core submission was that the evidence, namely the question “do you want pictures?”, was so weak and vague that it failed under the second limb of Galbraith ( [1981] 1 WLR 1039 ) The applicant was CB’s cadet unit leader. The judge was satisfied that in the circumstances which existed at the time of the alleged misconduct, the jury would be entitled to conclude that the applicant’s actions were whilst he was acting as a public official as cadet unit leader, and that the messages asking if she wanted pictures were such that the jury would be entitled to conclude that the applicant was offering to send pictures of his penis and so had a sexual motivation in these communications. As such, the jury would be entitled to conclude this was sufficiently grave to amount to a crime, and the Galbraith submission failed. vi) Count 13 to 16: The submission was made on the first limb. JR was a cadet (and cadet leader) who also became an apprentice, under the supervision of the applicant. The judge was satisfied that in the circumstances which existed at the time of the alleged misconduct, the jury would be entitled to conclude that the applicant’s actions were whilst he was acting as a public official as cadet unit leader and supervisor of JR. In the event that the submission was on both limbs it would fail as well. vii) Count 17: The submission was made on the second limb. The judge was satisfied that in the circumstances which existed at the time of the alleged misconduct the jury would be entitled to conclude that the applicant’s actions were whilst he was acting as a public official as cadet unit leader and supervisor of police apprentices. The judge was satisfied that the circumstances in which the applicant made comments to JL (about being in the bath, needing someone to pull him out, being stiff, wishing JL was in the bath with him, and others) were such that the jury would be entitled to conclude that the applicant had a sexual motivation. As such, the jury would be entitled to conclude that in each case this was sufficiently grave to amount to a crime. viii) Count 20: The submission was made on both limbs. JV was an apprentice supervised by the applicant, who was his line manager. The judge was satisfied that in the circumstances which existed at the time of the alleged misconduct the jury would be entitled to conclude that his actions were whilst he was acting as a public official. The judge was also satisfied that the circumstances in which the applicant made comments to JV about his sexuality, and suggesting he should get together with another male apprentice, and others, were such that the jury would be entitled to conclude that the applicant had a sexual motivation. As such, the jury would be entitled to conclude in each case this was sufficiently grave to amount to a crime. 18. During the discussion of legal directions before the summing up, the prosecution sought a direction on cross admissibility in relation to the sexual assault counts. The judge agreed such a direction should be given; and the jury were subsequently directed that if, after looking at them individually, they were sure one or more of the sexual assaults had occurred, they might find a propensity to commit such assaults and use that in considering their verdicts on other counts for the same offence. The prosecution sought a similar direction in respect of the counts of misconduct in public office; that is, in deciding whether the conduct was so serious that it amounted to an abuse of the public’s trust, the jury could look at the applicant’s conduct overall, rather than assess that second contested element of the offence count by count, each in isolation from the others. The judge declined to give such a direction. We were told by Ms Whyte KC, counsel for the respondent, not that there was any objection to it as a point of principle, but that the judge considered any such direction would be too complicated. Thus, in due course, the jury were given the standard direction about the separate consideration of each count, and a direction on cross admissibility was limited to the counts alleging sexual assaults. 19. In respect of the conviction application, Ms Osborne KC and Ms Appleton for the applicant, submit that the judge was wrong to find a case to answer in respect of counts 1, 3, 4, 5, 7, 13, 14, 15, 16, 17 and 20. In short, it is said first, that the applicant’s messages were sent at times and in a personal context such that a reasonable jury could not have been sure they amounted to the applicant acting as a public officer. Secondly, the messages may have been ill-judged and inappropriate but they did not reach the required level of gravity when assessed independently such that a reasonable jury could find them to be criminal acts. There was insufficient evidence therefore that the conduct was so serious that it amounted to an abuse of the public’s trust. 20. On behalf of the respondent Ms Whyte KC and Mr Reid submit that the judge’s ruling was correct. In summary, the nature of the relationship between the applicant and the cadets arose from his public office. He would be seen, and was seen by the complainants, as holding sway over their potential careers as police officers. The cadets’ contact details were known to the applicant because of his official role. Thus whether he messaged in or out of office hours was irrelevant. The schemes in which the applicant worked were designed, in part at least, to attract young and vulnerable people in order to improve community relations and to encourage them to consider a career in the police force. The jury were entitled to find that the applicant exploited his role and his connection with those young and vulnerable people for his own sexual gratification. As such his behaviour was sufficiently serious to be found to be criminal. The Legal Framework 21. The common law offence of misconduct in public office has four elements: see Attorney General’s Reference (No 3 of 2003) [2005] QB 73 : i) A public officer acting as such, ii) Wilfully neglects to perform his duty and/or wilfully misconducts himself, iii) To such a degree as to amount to an abuse of the public’s trust in the office holder, iv) Without reasonable excuse or justification. 22. At trial and in the instant application there was no dispute that the applicant was a public officer, nor that his actions were deliberately, or wilfully, carried out. It was also conceded that if the other elements of the offence were met, no issue arose of reasonable excuse or justification. We can therefore focus on the two elements of the offence in respect of which it is said that there was insufficient evidence for a reasonable jury to convict on the individual counts. Acting as such 23. In Shum Kwok Sher v HKSAR [2002] 5 HKCFAR 381, Sir Anthony Mason referred to this as acting “ in the course of or in relation to his public office ” (this judgment was cited by Pill LJ in Attorney General’s Reference (No 3 of 2003) and by Leveson LJ (as he then was) in R v L [2011] 2 Cr App R 14 ). We would emphasise the following points. First, a significant nexus or link between the accused’s status and the conduct that is said to amount to the offence is plainly required. Secondly, the fact the act under scrutiny is carried out when the officer is not on duty does not (necessarily) take it outside the bounds of misconduct in public office. In Knox [2011] EWHC 1629 (Admin) for example, the convicted officer had been suspended at the time of the offence; and in R v L , the unsuccessful appellant acquired police intelligence at work and passed it on to a criminal some days later. Thirdly, it follows that the offence is not limited to conduct by an office holder that specifically discharges their duties. It is, for example, no part of the duty of a police officer to sell confidential intelligence to criminals. Nor we might add is it part of a police officer’s duties to send sexualised message and content to young people for whom, and directly connected with his uniformed role, he has an actual and pastoral responsibility. 24. In Johnson v Westminster Magistrates Court [2019] EWHC 1709 (Admin) at [27] it was said that “acting as such” meant acting in the discharge of the duties of that office, but the court’s observation has to be viewed in the context of the particular facts of that case (which concerned the validity of a warrant issued against a politician for misconduct in public office in relation to lies allegedly told in the course of political debate). Viewed in that light, we do not consider that the Divisional Court was intending to circumscribe the ambit of the offence more generally. The seriousness threshold 25. The need for the impugned conduct to be of “ such a degree as to amount to an abuse of the public’s trust in the office holder ” requires an assessment to be made of the seriousness of the conduct; and in particular, whether the conduct is so serious that the jury should decide it amounts to a crime. This is a high threshold. 26. In Attorney General’s Reference (No 3 of 2003) Pill LJ said that: “56. The approach in [ Three Rivers DC v Governor of the Bank of England [2001 UKHL 16]] also demonstrates the many-faceted nature of the tort, as of the crime. It supports the view expressed in the criminal cases, from [ R v Borron (1820) 3 B & Ald 432] to Shum Kwok Sher , that there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct. As Abbott C.J. illustrated in Borron , a failure to insist upon a high threshold, a failure to confine the test of misconduct as now proposed, would place a constraint upon the conduct of public officers in the proper performance of their duties which would be contrary to the public interest. 57. As Lord Widgery C.J. put it in [ R v Dytham [1979] QB 722 ], the leading modern criminal case: the element of culpability “must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment”. The constitutional context has changed but the rationale for the offence remains that stated by Lord Mansfield in [ R v Bembridge (1783) 3 Doug KB 327]: those who hold public office carry out their duties for the benefit of the public as a whole and, if they abuse their office, there is a breach of the public’s trust. By way of example, the failure of the constable in Dytham to act, in the absence of a justification or excuse, crossed the threshold for this offence. 58. It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively as in R. v G [2004] 1 Cr App R 237 , will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer. A default where the consequences are likely to be trivial may not possess the criminal quality required; a similar default where the damage to the public or members of the public is likely to be great may do so. In a case like the present, for example, was the death or serious injury of the man arrested the likely consequence, viewed subjectively, of inaction, or was it merely an uncomfortable night? There will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs.” 27. More recently in R v Chapman and others [2015] 2 Cr App R 10 [at 34] Lord Thomas CJ said: “The offence requires, as the third element, that the misconduct must be so serious as to amount to an abuse of the public’s trust in the office holder. It is not in our view sufficient simply to tell the jury that the conduct must be so serious as to amount to an abuse of the public’s trust in the office holder, as such a direction gives them no assistance on how to determine that level of seriousness. There are, we consider, two ways that the jury might be assisted in determining whether the misconduct is so serious. The first is to refer the jury to the need for them to reach a judgment that the misconduct is worthy of condemnation and punishment. The second is to refer them to the requirement that the misconduct must be judged by them as having the effect of harming the public interest.” Discussion 28. The Crown Prosecution Service has produced guidance on the offence of misconduct in public office, which suggests that the following factors may be useful in determining whether sexual misconduct is sufficiently serious to amount to that offence, viz: i) The nature and context of the relationship and the balance of power at the time that any sexual advance, activity or intimate relationship began (or was attempted), i.e., was it in the course of a professional relationship, subsequent to a professional relationship or entirely incidental to the suspect’s role in a public office. ii) Whether the sexual relationship or activity was in exchange for the exercise or failure to exercise a power held by the suspect by virtue of their office. iii) Whether there is any evidence that the suspect’s role enabled them to exert power, control, or coercion over the victim (the nature and extent of any past or current professional relationship may be relevant). iv) Whether the victim was vulnerable (either during a previous professional relationship or at the time the sexual relationship began) and, if so, the extent of the suspect’s knowledge of their vulnerability. v) Whether it was an isolated incident or a pattern of conduct on the part of the suspect. vi) The seriousness threshold may be reached on the basis that the public interest is harmed by conduct that has the potential to impact on the objectivity of the suspect in the exercise of their authority or expose them to conflicts of interest or exploitation (whether or not any actual harm is caused and whether or not the relationship was consensual). vii) The fact that the relationship was consensual is not determinative. viii) The sexual conduct or relationship may not, in and of itself, amount to an abuse of the suspect’s power, but any neglect/breach of duty and/or misconduct that preceded it or facilitated it may do. For example, where a suspect has used the police database to obtain contact details of the victim and/or used the police database to identify and target vulnerable individuals, this is likely to be an abuse of power whether or not a sexual relationship resulted. 29. We agree that these factors can be useful in determining whether sexual misconduct is sufficiently serious in the context of the misconduct offence, but other factors may be material too, depending on the circumstances. As always, all must depend on the facts of the individual case. There may also be cases where it is difficult to draw the line between conduct, with a sexual element, which amounts to a criminal abuse of someone’s public office, and private conduct which falls outside the limits of the law. That difficulty does not arise on the facts of this case however, where we have no doubt that there was a proper evidential basis for the jury to find that the applicant was a public officer “ acting as such ” “ in the course of or in relation to his public office ” for the reasons that were well expressed by the judge. 30. These were in summary as follows. As the judge accepted, the Code of Ethics that governs professional standards for police officers does not mean that all actions of a police officer, whether on duty or off duty, are to be considered actions in the course of their public office so that any breach of that code in any context amounts to misconduct. However, the jury were entitled to conclude that public confidence in the police is particularly important because if a police officer abuses his public position, significant harm is caused to the public. The public should be able to trust police officers unconditionally. The jury were also entitled to consider that the Code of Ethics requires officers, for obvious reasons, to maintain those standards on and off duty, online and offline. 31. In this case, the jury were entitled to conclude that the conduct underlying each allegation was always connected with the applicant’s status and duties as a police officer and within the performance of that role, as Trafford Cadet Unit Leader and as the Line Manager of apprentices. The jury would be entitled to conclude there was a sufficient nexus between his office and his misconduct. The applicant only had access to the complainants and to their contact details through the course of his work and the jury would be entitled to conclude that he used the pretext of work and his position and office to develop or to attempt to develop inappropriate relationships. Further, each category of victim viewed the applicant as their leader or manager or supervisor or as someone who had the ability through his public office to influence their progression. Whether the complainant was a cadet, cadet leader, or apprentice, the applicant was, at the material time, still acting as a public officer in that the conduct was, the jury might conclude, misconduct which was incompatible with the proper discharge of the responsibilities of the office. 32. The jury were also entitled to conclude that the misconduct in question was of such a degree as to be calculated to injure the public interest so as to call for condemnation and punishment. In this regard the jury were entitled to consider whether, in acting as he did, the applicant used his office and duties deliberately to target young, vulnerable and impressionable people most of whom aspired to join the police service and many of whom believed he had some power and influence over their advancement. If some may have been flattered or responsive to such conduct or viewed him as a friend that may only indicate the success of his grooming. The assessment of the misconduct was a matter for the jury and would involve an assessment of his motive. The jury could conclude that any underlying sexual context amounted to a breach of public trust due to the misuse of his position and the particular circumstances of cadets and apprentices. As to the requirement that the misconduct must amount to an abuse of the public’s trust in the office holder, the threshold was a high one; the misconduct must be deserving of condemnation and punishment. 33. The individual complainants the applicant was communicating with, whether out of hours or not, were cadets to whom the applicant only had access because of his role. Many of the applicant’s suggestive or overtly sexual messages were interspersed with other messages about the cadet or apprentice scheme. The communications were flirtatious or sexual in nature. It was no part of his role to communicate with them in that way, but it was part of his role to build a relationship of trust and confidence with the cadets, in respect of whom he had a leadership role. The applicant exploited his authority over the cadets and the opportunity and the access his position afforded him, for his own sexual ends. 34. There was also a proper basis for the jury to conclude that the applicant’s conduct in respect of each of the counts in issue, amounted to an abuse of the public’s trust in the office holder, and thus amounted to criminal conduct. The recipients of the applicant’s communications were younger, subordinate within the cadet scheme, and often vulnerable, as the applicant well-knew. The standards expected of him were set out in simple terms and his conduct was an obvious breach of the explicit guidance he was given. The jury were entitled to conclude that those cadets who replied to the applicant did so in order to keep his goodwill rather than as a matter of genuine choice. There was an ample basis for the jury to conclude that applicant was indulging in this behaviour for his own sexual gratification, and that his conduct harmed public trust and confidence in the police, and the cadet and apprenticeship schemes which they ran. 35. The purpose of the cadet and apprentice schemes was to burnish the reputation of the police force amongst sections of the public and to encourage cadets from diverse backgrounds to consider a career in law enforcement. The applicant’s repeated misconduct towards so many young people cannot have had an effect other than to undermine and defeat those laudable aims. There was direct evidence of the damage done to the public interest: specifically, the public meeting held after the applicant’s arrest at which shock, disbelief and anger was expressed by parents who had entrusted their children to the cadet scheme run by the police. 36. We would add only this. With respect to the judge, we see no reason why the jury should not have been given a direction on cross admissibility in relation to the misconduct in public office offences, so that in assessing the extent of the abuse of the public interest, the jury could take account of the applicant’s pattern of behaviour overall. We are conscious that we have no transcript or written explanation of the judge’s reasons for not following this course; and only a short oral explanation of the judge’s reasoning from counsel who appeared below. We do not consider however, that such a direction would have given rise to undue complexity in this case. On the facts of this case, where the only issues were, whether the applicant was “acting as a public officer” and whether his conduct met the seriousness criteria, the jury could have been directed first, to look at each misconduct count separately and decide if they were sure the applicant was acting as a public officer when he sent the messages. Second, in assessing the seriousness of the applicant’s conduct and whether it met the test of “conduct so serious as to amount to an abuse of the public’s trust”, they could take into account the conduct from all of the counts where they found the applicant to have been “acting as a public officer” when assessing  the overall seriousness of what the applicant had done. Sentence 37. In his sentencing remarks the judge first considered the sexual assault counts. In his assessment, those assaults fell into category 3 within the Sentencing Council guidelines for sexual assault, which has a starting point of 26 weeks’ custody. The judge identified the following aggravating features: the gross abuse of trust, the reputational damage done to the police force, and the serious harm done to the victims of these offences as set out in their victim impact statements. We would add that as he had decided to impose concurrent sentences to address totality, the judge was also entitled to increase the effective sentence to allow for the fact he was passing sentence for 5 separate offences of sexual assault. The judge acknowledged the mitigation available to the applicant: his previous good character; his service as a police officer before he was injured, when stabbed in the line of duty and that there had been considerable delay in the case coming to trial for reasons that were not of the applicant’s making. The aggravating factors raised the guidelines category to category 2, with a starting point of 2 years. The judge then passed sentences for the various assaults of 2 years’ imprisonment (count 12), 2 years 6 months’ imprisonment (counts 2 and 9), and 3 years’ imprisonment (counts 8 and 11), making all such sentences concurrent. 38. In passing sentence for the 15 offences of misconduct in public office (counts 1, 3, 4, 5, 6, 7, 10, and 13 to 20) the judge referred to previous decisions of this court and stressed the need for sentences for this offence to act as a deterrent (see Bohannan [2011] 1 Cr App R (S) 106 ). The judge drew attention to the public harm that these offences will have caused to the reputation of the police, the length of time over which the offences were carried out, some 3 years, and that while addressing totality by passing concurrent sentences, it was proper to mark the large number of convictions by increasing the overall, effective sentence. He then passed a sentence of 5 years’ imprisonment on each of the misconduct in public office counts, concurrent to the sentences passed for the sexual assaults, making a final effective sentence of 5 years’ imprisonment. Restraining orders were imposed in respect of all the complainants and the applicant was placed on the sex offenders register indefinitely. At a later hearing on 17 July 2023 a Sexual Harm Prevention Order was made in respect of the applicant. None of those various orders are the subject of any application to appeal. 39. On behalf of the applicant, it is submitted that the 5-year term imposed for the sexual assaults and misconduct in public office offences was manifestly excessive. It is submitted, amongst other things, that the judge’s use of the aggravating factors such as abuse of trust on the misconduct in public office counts was flawed in that it was only those factors that rendered an otherwise lawful activity criminal; and that insufficient credit was given for mitigating factors such as the delay (some 4 years 6 months between arrest and conviction) and the applicant’s previous and commendable service as a police officer. The essential submission made however, is that an overall sentence of 5 years for this offending, even having regard to its seriousness, the number of complainants, and the prolonged nature of it, was too long. 40. This was a complex sentencing exercise with an unusual combination of misconduct in public office offences and substantive statutory offences, and the judge undertook it (as he did the trial itself) with commendable thoroughness and care. We respectfully differ however from the judge in one respect only in that we consider that the 5-year term of imprisonment passed in total, for the misconduct in public office offences was too long 41. The jury were invited to see both types of offending (the sexual assaults and the misconduct in public office offences) as connected, and essentially part and parcel of the same course of improper sexual (mis)conduct. There were also elements common to all the offences, in particular the serious breach of trust that the judge identified, and it was important in those circumstances, not to double count. Further, in respect of two of the complainants, CB (counts 8 to 10) and JR (counts 11 to 16) the communications from the applicant were, in one sense, secondary to the substantive assaults that then occurred. In our view, a total sentence of 3 years imprisonment properly reflects the overall criminality involved in the two types of offending, as well as the importance of deterrence for offences of misconduct in public office. We propose to achieve this result by leaving the sentences for the sexual assaults unchanged, and substituting for the sentences on the misconduct in public office offences, a sentence of three years’ imprisonment for each offence, all sentences to be concurrent. 42. Accordingly, for the reasons set out above, we refuse leave to appeal against conviction and grant leave to appeal against sentence. On each of the 15 misconduct counts we quash the sentence of 5 years’ imprisonment and substitute for them a sentence of 3 years’ imprisonment, all sentences to be concurrent and concurrent to those sentences passed for the sexual assaults. The applicant’s total sentence therefore is one of 3 years’ imprisonment. To that extent only this appeal is allowed.

2023_12_07-5944.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1464/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1464

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[2020] EWCA Crim 1234

EWCA_Crim_1234

crown_court

Neutral Citation Number: [2020] EWCA Crim 1234 Case No: 202000581 & 202000585 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT HIS HONOUR JUDGE FOWLER T20190159 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/09/2020 Before : LORD JUSTICE BEAN MR JUSTICE LAVENDER and MRS JUSTICE COCKERILL - - - - - - - - - - - - - - - - - - - - - Between : (1) WESTERN TRADING LTD Appellants (2) CHINDERPAL SINGH - and - THE QUEEN Respondent - - - - - - - - - - - - - -

Neutral Citation Number: [2020] EWCA Crim 1234 Case No: 202000581 & 202000585 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT HIS HONOUR JUDGE FOWLER T20190159 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/09/2020 Before : LORD JUSTICE BEAN MR JUSTICE LAVENDER and MRS JUSTICE COCKERILL - - - - - - - - - - - - - - - - - - - - - Between : (1) WESTERN TRADING LTD Appellants (2) CHINDERPAL SINGH - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Andrew Smith QC (instructed by Murrias Solicitors ) for the Appellant Joseph Millington (instructed by Solicitor, Birmingham City Council ) for the Respondent Hearing date: 10 September 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Bean: 1. Western Trading Limited (“the company”) is the registered freehold proprietor of a Victorian commercial building on Constitution Hill in Birmingham. Chinderpal Singh is the sole active director of the company and a shareholder in it, though not the only one. The company and Mr Singh both appeal with the leave of the single judge against fines imposed by His Honour Judge Fowler in the Crown Court at Birmingham in respect of breaches of a Listed Building Enforcement Notice (LBEN) and a Planning Enforcement Notice (PEN) concerning the building issued on 9 April 2014 by the local planning authority, Birmingham City Council. 2. The majority of the building is Grade II listed. After acquiring the building the company had works undertaken to the shop fronts without planning permission or listed building consent. The timber shop fronts were removed and replaced by painted metal shop fronts. 3. Both the LBEN and the PEN required various steps to be taken to remediate the effect of the unauthorised works to the shop fronts. The original deadline specified was in November 2014, but the company appealed against the notices; the effect of the appeals was to extend the time for compliance until 23 October 2015. The LBEN and the PEN each had identical requirements, namely to remove the roller shutter doors and boxes and the unauthorised shop fronts and to reinstate traditional timber shop fronts of the same design as the original shop fronts. The appeals failed. In the words of the planning inspector who rejected them:- “There has been a loss of characteristic detail and the replacement shop fronts are incongruous features. In addition, partially perforated metal roll shutters have been installed with protruding roller boxes. They provide a further uncharacteristic addition of poor design and quality. The replacement shop front and the shutters contrast markedly with the character of the corner premises. … The overall effect is to detract significantly from the architectural and historic character of the listed building.” 4. When more than three years had elapsed from the October 2015 date for compliance, and the notices had still not been complied with, the Council began a prosecution. The defendants elected trial in the Crown Court. An application to stay the prosecution as an abuse of process was ultimately not pursued. 5. A four count indictment was preferred. The offending on Counts 1 to 4 reflected the failure of the appellants to comply with the requirements of either the LBEN (Counts 1 and 2) or the PEN (Counts 3 and 4), contrary to section 43(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and section 179(2) of the Town and Country Planning Act 1990. Both defendants pleaded guilty on 30 August 2019. On 22 October 2019 Judge Fowler deferred sentence in order to allow the defendants to complete remedial works to the buildings in line with the LBEN and PEN. At the sentencing hearing on 20 January 2020, the prosecution confirmed that both the LBEN and the PEN had been complied with and that the remedial works undertaken to the building were compliant with the LBEN and PEN and of a standard acceptable to the prosecution. 6. In his sentencing remarks the judge said: “During the period that is covered by the indictment, the local authority were seeking to enforce a notice to require the premises to be restored to the condition that they were in, in terms of the architectural features, when the listing took place, in relation to those that were listed, and they were frustrated by the management of the company and the company failing to carry that out. Now, it has been said that all sorts of steps were being taken but none of it justifies the failure to carry out the work and ultimately, the defendants being subject to a deferred sentence imposed in November of last year, here we are at the end of January with the work completed and something between £60,000 and £70,000 having been expended to carry out that work. There had been other efforts by other contractors, I am told, with the expense of £10,000 or so being spent on trying to resolve the matter. Not surprisingly, it did not work and that is why now, in January of 2020, we are before this court to consider what punishment is appropriate for the failure to carry out the enforcement notice. My conclusion is that the failure to carry out the enforcement notice was [because] the defendant and the company considered it to be an insignificant matter that they were not prepared to engage in and to commit the necessary funds to carry it out. It might not have cost as much as £60,000 or £70,000 if it had been carried out in 2015 through to 2019, but it is a measure of the cost and that is what was being avoided. That was what was being saved by not complying with the enforcement notices and that is one of the features that I have to take account of when assessing the appropriate level of sentence; that and the damage that was done. Well, ultimately, that has been resolved, but the damage that was being sought to be resolved is clear from the photographs that I have been given contrasting those in 2010 with those in 2014 and the way that they now appear, having been restored to the appropriate architectural standard. There is no way of mathematically assessing, in this case, the appropriate fine. I had in mind, prior to the deferment, a fine in the order of £40,000. However, having regard to the fact that the defendant, given the opportunity of resolving the problems, taking that opportunity and succeeding in doing so and having regard to his plea, which I put at approximately 20%, I reduce that fine to one of £25,000 which I consider to be appropriate having regard also to his culpability. I have read the impressive references to his general attitude to his directorships and his reputation as a businessman, and they do him credit. Of course, that is blemished too by the fact, in 2018, he was fined for an offence, a different offence from those that I am dealing with here but an offence linked to his directorship, and that is an element that dents his good character; but it remains a good character and one that I have taken into account. Here, I am dealing with two defendants both of whom have no difficulty in paying a fine that is imposed, but that does not lead me to increase the penalty. It seems to me that £25,000 is an appropriate penalty and that it should be paid by both defendants. Both defendants are to pay a fine of £25,000 and, between them, to pay the sum of £10,700 by way of costs.” Guidelines and case law 7. The judge was referred to a number of decisions of this court concerning damage to or destruction of listed buildings or breaches of enforcement notices issued under the Town and Country Planning Act 1990. The cases are generally fact specific but some general principles can be found. In Duckworth [1994] Cr App R (S) 529, a case of alteration of a listed building without consent, this court mentioned three important factors in determining the level of penalty to be imposed. The first, which does not apply directly in a case where the alteration has been remedied, is the degree of damage that has been done to the historic structure. The second and third deserve citation in full:- “A second factor is the degree of financial gain that the Defendant has attempted to achieve. In nearly all cases financial gain will have been the motivation of the Defendant. If he disregards the provisions of the Act it will almost certainly have been with a view to saving himself money or to the gaining of profit for himself. Where a financial penalty is being imposed on the defendant, it must take into account the financial advantage which the defendant was attempting to achieve, otherwise the deterrent and punitive effect of the sentence may be lost. Thirdly, and in many respects most importantly, is the degree of culpability of the defendant. These offences can be committed in a number of circumstances. They are sometimes described as offences of strict liability, whether or not that term is wholly accurate. But the offence may be committed through a lack of care on the part of the defendant or indeed through ignorance of his proper responsibilities in the relevant matter. On the other hand, it may be a case where the defendant has acted wilfully in disregard of the need to obtain consent, or he has even acted wilfully with an intent to damage or destroy an historic structure.” 8. In Rance [2012] EWCA Crim 223 , a demolition case where the original building had been replaced, the court said at [28]:- “We do not think that the level of fine should be assessed according to aesthetic considerations. The suggestion was made that the replacement building was of at least as great architectural quality as the original which it replaced. The real offence lay in the deliberate attempt to achieve the appellant’s aim by disregard of planning procedures.” 9. R v Dagim, Fish and Deli Ltd [2014] EWCA Crim 2927 was a case where an unauthorised structure had been erected which was still in place a year after the trial in the Crown Court. The Court referred to the three factors set out in Duckworth and noted that the first one (the degree of damage done to the structure) did not apply but the second and third (financial benefit sought to be achieved, and degree of culpability) did apply. The court went on to say that “while each case will depend on its own circumstances…, this is not a case of permanent and irreparable destruction, it was rather a case of obdurate disobedience over many years with identifiable financial gain”. 10. The second factor mentioned in Duckworth required the court to “take into account the financial advantage which the defendant was attempting to achieve”. This requirement has if anything been reinforced by the Sentencing Council’s “General Guideline: Overarching Principles” which, in its section relating to fines, provides:- “Where possible, if a financial penalty is imposed, it should remove any economic benefit the offender has derived through the commission of the offence, including: - avoided costs; - operating savings; - any gain made as a direct result of the offence The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to comply with the law. In considering economic benefit the court should avoid double recovery. … When sentencing organisations 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 the law.” 11. See also section 43(6) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and section 179(9) of the Town and Country Planning Act 1990, each of which provides as follows: “In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.” 12. Similarly, the Sentencing Council’s Definitive Guideline for Environmental Offences states that “the level of fine should reflect the extent to which the offender fell below the required standard. The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to take the appropriate precautions”. 13. These provisions concern actual, rather than intended, economic or financial benefit, but, as stated in Duckworth , it is plainly relevant in a case such as the present to have regard to the intended financial benefit. The two defendants issue 14. None of the reported cases on planning offences drawn to our attention by counsel involved a prosecution of both a corporate body and one of its directors. However, in R v Rollco Screw and Rivet Co Ltd and others [1999] 2 Cr App Rep (S) 436 , a health and safety prosecution against a company and two of its directors, Lord Bingham CJ said at p 441:- “… One must avoid a risk of overlap. In a small company the directors are likely to be the shareholders and the main losers if a severe sanction is imposed upon the company. We accept that the court must be alert to make sure that it is not in effect imposing double punishment. On the other hand, it seems to us important in many cases that fines should be imposed which make quite clear that there is a personal responsibility on directors and that they cannot simply shuffle off their responsibilities to the corporation of which they are directors. The proper approach to a case of this kind in principle seems to us to be to pose two questions. First: what financial penalty does the offence merit? Secondly: what financial penalty can a defendant (whether corporate or personal) reasonably be ordered to meet?..... Addressing the first of those questions with particular reference to the instant case, we note that the total penalty imposed on the company and the directors together amounted to £50,000. We have to ask ourselves whether that sum represented an appropriate penalty to be imposed for this offending. In considering that question we have to bear in mind the glaring public need for effective sanctions in a field such as this where the health and safety of the public are so very obviously at risk. We consider that the division of £40,000 attributed to the company and £10,000 to the directors was an appropriate split. We also consider that the total sum divided between the two was appropriate recognition of the gravity of this offending.” (There were also issues in the Rollco case about means and time to pay which do not arise in the present case.) 15. It seems to us that within the parameters of the relevant Sentencing Guidelines there are three approaches which might be taken to the imposition of fines in a case such as this, where one Defendant is a small company and the other is a director of that company. The first is, as this court appears to have done in the Rollco case, to form a view as to the appropriate total penalty before deciding how to apportion it between the defendants. The second, in a case where the direct financial benefit sought to be obtained or cost sought to be avoided is that of the company, is to take that factor into account in the way described in Duckworth in the case of the company, and then consider what penalty should be imposed on the director as having been the controlling mind of the company causing it to commit the offence and seeking thereby to achieve the financial benefit or avoid the cost for the company. The third is simply to sentence each defendant separately as if he, she or it stood alone; but this would in cases of actual financial benefit infringe the principle set out in Rollco that the court must avoid imposing double punishment; and neither Mr Andrew Smith QC for the Appellants nor Mr Joseph Millington for the Respondent suggested that it would be the right course to adopt in a case of this kind. Putting the matter another way, insofar as the purpose of a fine or fines is, in accordance with the General Guideline quoted above, to remove an actual financial benefit, that benefit should only be removed once. 16. Mr Smith accepted that the second approach is consistent with the Sentencing Guidelines as well as with the reported cases such as Duckworth . We consider that it is the one we should adopt in this case in considering whether or not the fines of £25,000 imposed on each Appellant by the judge were excessive. Grounds of appeal 17. Five points were raised in the original grounds of appeal: (1) the judge failed properly to account for the good character of the company (2) the sentences were improperly based on aesthetic considerations (3) the sentences failed to distinguish between the two appellants and effectively imposed all the liabilities on Mr Singh, notwithstanding that he was not the sole shareholder of the company but his income was derived from the company’s income (4) the judge used too high a starting point and gave inadequate credit for the guilty pleas and the compliance with the notices following the deferment of sentence (5) the judge wrongly conflated the cost of compliance (£60-70,000) with the sum that would have been the cost of timely compliance (£2530,000), which resulted in a sentence imposed on the wrong factual basis and failed to take account of the substantial costs of the remediation works. 18. However, in his written skeleton argument and oral submissions on behalf of the two Appellants Mr Smith, who did not appear below, condensed these grounds into two, namely (a) that the judge’s starting point of £40,000 for each defendant was too high, and (b) that the judge gave insufficient credit for both compliance with the terms on which sentence was deferred and the guilty pleas. For the avoidance of doubt, we do not consider that there was any merit in the pleaded ground (2), which Mr Smith did not pursue. Discussion 19. Mr Millington frankly conceded that the judge did not explain how he “had in mind, prior to the deferment, a fine in the order of £40,000” for each of the two defendants. The judge found that the illegal alterations to the listed building might have been rectified at a cost of between £25,000 to £30,000 had the work been done promptly, but that the eventual cost was said to be in excess of £60,000. 20. It is right to say this was not a demolition case; nor a case, such as Kohali [2016] 1 Cr App Rep (S) 30 (in which a landlord had erected an unauthorised building and then received rent from it before the matter was brought to court), where the prosecution could point to a direct financial gain. Rather, the gravamen of the present case, as in Dagim Fish and Deli Ltd, was what Simon J in the latter case described as the “obdurate disobedience over many years” of the occupier of the premises and the desire to avoid the cost of restoring the historic building. 21. Dealing first with the company: Mr Smith rightly accepts that the combination of the financial benefit attempted to be avoided and the degree of culpability justified a significant penalty, but submits that any requirement of deterrence was insufficient to justify the starting point adopted by the judge. We disagree. The combination of the attempt to avoid the cost of compliance, even if that could originally have been in the bracket £25,000 to £30,000, with obdurate disobedience to the notices for a period of over three years was ample justification for the starting point which the judge took. 22. As to the reduction to reflect the remediation work and the plea of guilty, again we do not consider that the judge was in error. The pleas of guilty were entered on arraignment of the defendants in the Crown Court, but this was only after an application to stay the criminal proceedings as an abuse of process had been considered. The total reduction from £40,000 to £25,000 was in our view an adequate one to reflect both the plea of guilty and the fact that the remediation works had been carried out following sentence being deferred. 23. Turning to Mr Singh, he was not the occupier of the premises and so did not directly receive a benefit, though he was a shareholder as well as an employee of the company. He was the sole active director or controlling mind of the company and caused it to commit the offences to which it had pleaded guilty; and although otherwise of good character he had been fined in 2018 for what the judge described as “a different offence from those I am dealing with here, but an offence linked to his directorship”. In those circumstances, the fine of £25,000 imposed on him cannot be regarded as excessive either. 24. For these reasons both appeals against sentence are dismissed. The appellants must in addition pay the costs of Birmingham City Council in this court, amounting to £3,491.00.

2020_09_24-4975.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1234/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1234

f31fa4e3e6f56838dbca6fef7c9186a60e600c512aa61ee0d5206ccecbd18537

[2008] EWCA Crim 1029

EWCA_Crim_1029

crown_court

No: 200801155/A5 Neutral Citation Number: [2008] EWCA Crim 1029 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 22nd April 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE DAVID CLARKE MR JUSTICE BLAIR - - - - - - - - - - - - - R E G I N A v WAYNE GARY FREW - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 74

No: 200801155/A5 Neutral Citation Number: [2008] EWCA Crim 1029 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 22nd April 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE DAVID CLARKE MR JUSTICE BLAIR - - - - - - - - - - - - - R E G I N A v WAYNE GARY FREW - - - - - - - - - - - - - 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 C Dunn appeared on behalf of the Appellant - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE DAVID CLARKE: On 4th February 2008 in the Crown Court at Leeds, the appellant, Wayne Frew, aged 29, pleaded guilty to an offence of sexual activity with a child. On 25th February he was sentenced to 2 years' imprisonment by His Honour Judge Magill sitting in the Crown Court at Leeds. A Sexual Offences Prevention Order was also made, indefinite in time, under section 104 of the Sexual Offences Act 2003 , and we shall return to that later in this judgment. No publication must be made of any material which might identify the victim of this offence. 2. The appellant was aged 28 at the time of the offence and the young lady concerned was aged fifteen-and-a-half. They were members of the same martial arts club. They were both highly proficient in the particular form of martial arts in which they engaged, both being black belts. He knew her age; she attended the club in her school uniform. 3. On 16th March 2007 the two of them were at a party and after the party the appellant invited the complainant and another young couple back to his home. The other couple went to a bedroom and he persuaded her, as it was put to the judge, to go to his bedroom. It is quite clear that she was willing to do so. She later admitted that she had been attracted to him. She had a crush on him, as it was put. Sexual intercourse took place. 4. The complainant had suggested in interview that the appellant did not use a condom but later on she said that he did but it came off in the course of the sexual act. A friend later told the police that the complainant had told her that she had left her knickers and a condom in his room; she wanted him to split up from his girlfriend so that she could get together with him. 5. Subsequently, and very sadly, it transpired that as a result of this incident she became pregnant. She allowed a long period to go by before telling her parents about it. She made arrangements to go to London for an abortion. That took place. It was a late abortion, some 4 months after conception, and it was a traumatic and distressing period for her and for her family. 6. The appellant was arrested. He made no comment in interview, but did not dispute at any stage what had occurred. In fact a DNA examination of the foetus established the true position. 7. The appellant had a number of previous convictions between 1995 and 1999, when he was a teenager, including two offences of assault occasioning actual bodily harm, but he had no previous convictions since then, apart from one for driving with excess alcohol in 2005. He had no sexual offences on his record and had served no previous prison sentence. 8. There was a pre-sentence report before the court. It indicated that that he accepted full responsibility. He had been under the influence of alcohol. He did not remember the act of sexual intercourse because of drink but he accepted it. He knew that she fancied him and he had failed to discourage her attentions. He recognised that as an adult he should have kept the relationship at a more distant level. He was willing to address his offending behaviour, and an alternative to custody was proposed in the form of a suitably tailored community order. There was also a character reference from an employer before the court. 9. The judge took a serious view of the case. He set out the circumstances. He emphasised that the appellant knew the girl's age, being nearly twice that age himself. He remarked that she had a crush on him but he added that the law, rightly, is designed to protect girls under 16. He went on to refer to the disastrous consequences of this act of sexual intercourse and the effect it had had on the girl and her family. 10. Counsel in well tailored and moderate submissions has submitted that this sentence was manifestly excessive. Counsel emphasises that this was a single incident, though not of course one in a continuing affectionate relationship, as in many cases of this sort that have been before the court. But he emphasises, rightly, that this was a wholly consensual incident of sexual intercourse and that the girl was over fifteen-and-a-half; she was some 5 months short of her 16th birthday after which this would not have been an offence. 11. Our attention has been drawn to two decisions of this Court. The first is R v Barrass [2006] EWCA Crim 2744 , in which the court was presided over by my Lord Hughes LJ. The case had some similarities to the present case. The appellant there was 26 rather than 28, but the girl concerned was 14 rather than fifteen-and-a-half. After a party, sexual intercourse took place between them in a garden near the location of the party. It was instigated by the girl. That appellant had many previous convictions but none for sexual offences. The judge imposed a sentence of 32 months, evidently having worked from an initial starting point of 5 years. Wrongly that being the starting point for rape offences pursuant to the well-known case of Millberry . 12. This Court, in the judgment delivered by Henriques J, reviewed a series of earlier decisions under this Act for offences of this sort: for single incident offences committed by younger men, sentences of the order of 6 or 9 months were considered appropriate before the publication of the Sentencing Guidelines Council's Definitive Guidelines. Older men face longer sentences. In the case of Barrass the sentence was reduced to one of 18 months. 13. We also have been shown the Attorney-General's Reference No 43 of 2007 EWCA Crim 1574, the case of Trainer . This was a reference by the Attorney-General against a non-custodial sentence, imposed on a man of 24, who had sexual intercourse with a girl of 14. He had no previous convictions. He was of positive good character but there were serious aggravating features there, in the way in which he pestered the girl after the first incident of consensual activity, which was not full intercourse. She wanted no more to do with him, but by persistent threats and persuasion, he induced her to have full sexual intercourse with him. This Court was very troubled by that conduct, in particular the harassment of her and her family. It concluded that a non-custodial sentence was unduly lenient and imposed an 18 month immediate sentence. The court did not specify what the sentence would have been but for the usual incidence of double jeopardy applying to it. 14. Neither of those cases, however, involved the serious aggravating feature of the present case, namely the pregnancy and its consequences. It was particularly unfortunate in this case, though entirely understandable from the perspective of the girl, that she did not dare to tell her family much earlier, with the result that the abortion procedure was particularly traumatic, painful and unpleasant and no doubt has much more lasting effects than it might otherwise have had. 15. But the age of the girl in the present case must be taken into account, in our judgment, in assessing the gravity of the offence, because if all these events had occurred 5 months later, even with the same disastrous consequences, no offence would have been committed. 16. The Sexual Offences Act Definitive Guideline issued by the Sentencing Guidelines Council, dealing with the offence of sexual activity with a child, prescribed in a case of penile penetration, as this of course was, a starting point of 4 years custody and a sentencing range of 3 to 7 years custody. In those circumstances, we can well understand the learned judge taking the view that he did, that this case required a sentence of 2 years, which gave a discount for a plea of guilty from a sentence at the bottom end of this range. But we remind ourselves also that this is a field of sentencing in which a huge range of gravity can appear. We refer to paragraph 1.3 of the introduction to the guideline which says, and this is in bold type in the published guideline: "For these types of offence more than any others, the sentencing process allow for flexibility and variability. The sentencing starting points and sentencing ranges contained in the offence guideline are not rigid and movement within and between ranges will be dependent upon on the circumstances of individual cases, and in particular the aggravating and mitigating factors that are present." 17. We have reflected on the submissions made and on that guideline. We do not accept the submission that the judge had any realistic alternative to an immediate prison sentence in this case. This was not a case at the bottom end of the range of gravity. There was a substantial age difference between them, and the consequences of this act, which have already been spelt out in this judgment, were bound to play a significant part in his consideration. But we do conclude that 2 years was manifestly excessive. In all the circumstances, we consider that the proper sentence for this offence was one of 18 months. The length of the prison sentence will be reduced accordingly. 18. We turn to the Sexual Offences Prevention Order. This was in very wide terms. We understand from counsel that the judge having decided that such an order should be made, there was no analysis of the particular provisions which the police had set out in their application as being appropriate for the order. It was necessary, under section 104 of the Act , for the court to consider whether the order was "necessary for the purpose of protecting public, or any particular members of the public from serious sexual harm from the defendant." 19. The order included five prohibitions, all imposed until further order: 1. Seeking to approach or communicating by whatever means directly or indirectly with the victim. 2. Having any unsupervised contact with any young females under the age of 16 years, except in the presence of that child's parent or guardian or other appropriate adult, save any inadvertent or unavoidable contact with a child under 16 years. 3. Inviting into or any young female under the age of 16 year in his house or any other residence or premises of which he resides temporarily or over which he exercises some control, or participating in or being involved whether directly or indirectly in any activity, be it through a school, voluntary group, residence association or any other public or private organisation which by its nature is likely to bring the defendant into contact with a female child under the age of 16 years, in the absence of the child or young person's parent or guardian. 5. Seeking or undertaking any employment, whether for payment or otherwise, including voluntary work which is likely at some time to allow him unsupervised access to a female child under the age of 16 years. 20. Simply reading that list of prohibitions shows how potentially wide the restriction on his life and activities would be in order to comply strictly with its term. It has to be remembered that breach of such an order would render him liable to a prison sentence with a maximum of 5 years. 21. The appellant had committed one sexual offence only, namely a single incident of sexual intercourse with a consenting fifteen-and-a-half year old girl. The consequence of that act, which have of course been taken into account in considering sentence, do not often themselves make it any more likely that he will commit sexual offences in the future, let alone offences which are likely to cause serious sexual harm. It seems to us far more likely that it will render him the less likely to commit such offences, considering the consequences of this one. 22. It seems to us, on consideration, that the underlying foundation for the making of such and order was not present in this case. It requires a finding that it is necessary for the protection of the public or members of the public from serious sexual harm from this man and that one incident does not seem to us to amount to such a foundation. 23. The case is perhaps a good example of the need for a court when asked to consider making an order, not only to examine the statutory criteria for making it but also to examine with care each of the individual provisions which it is sought to impose. In our judgment, this is not an order which was necessary within the statutory definition of this case and we shall quash it. 24. What the judge did not however do was to apply his mind to the mandatory requirement of section 28 of the Criminal Justice Act and Court Service Act 2000 . We have every sympathy with the judge not doing so, if it was not brought to his attention in this complex area of sentencing law. But an order disqualifying him from working with children is an order which should have been made and is an order which this court must now make. Making it does not offend against any of the provisions effecting this court's jurisdiction, or preventing the exercise of that power in this case. 25. Accordingly the prison sentence is reduced from 2 years to 18 months. The Sexual Offences Prevention Order is quashed. The court does however impose the order of disqualification from working with children, pursuant to section 28 of that Act . The appeal is allowed in those terms.

2008_04_22-1470.xml

allowed

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ed0f2fe1b7b904eaffdabcd6a0c4ba17b07e46c03c02cd3c4a479b2736a02e6c

[2011] EWCA Crim 3239

EWCA_Crim_3239

crown_court

Neutral Citation Number: [2011] EWCA Crim 3239 Case No: 201104987 D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 20th December 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE MADDISON HIS HONOUR JUDGE STEPHENS QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v BEN CAVEN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Wo

Neutral Citation Number: [2011] EWCA Crim 3239 Case No: 201104987 D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 20th December 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE MADDISON HIS HONOUR JUDGE STEPHENS QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v BEN CAVEN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr T Godfrey appeared on behalf of the Appellant Ms M Pinkus appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE AIKENS: This is an appeal by Ben Caven, now aged 20, which is brought with the leave of the Single Judge with respect to one ground of appeal. In respect of the second ground, the Single Judge referred the matter to the full court. 2. On 9th August 2011, following a seven day trial before Mr Recorder Bayliss and a jury, in the Crown Court at Kingston, the appellant was convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861 . A co-accused, William Spooner, was acquitted of a similar charge. The appellant has not yet been sentenced because of events that occurred after his conviction on 9th August 2011. Given those circumstances, we have imposed an order under section 4(2) of the Contempt of Court Act in terms which we have already discussed with counsel and which have been agreed. 3. The charge arose out of events on the night of 27th and 28th August 2010, when there was a party at Beauval Road, Dulwich, South East London. The party was attended by the appellant and his co-accused and other young men. The complainant, Michael Horgan, arrived in Beauval Road as the party was finishing, to meet his friend, Thomas Bath, who had also attended the party. 4. The prosecution case at the trial was that the appellant was involved in a group assault on the complainant, who suffered serious injuries as a result, including a fractured eye socket. The prosecution case was that the appellant was the instigator of the violence and that he and others, including the co-accused, who was acquitted, were participants in this group violence against Mr Horgan, which was a sustained attack. The case was put on the basis of a joint enterprise. We repeat that Mr Spooner was acquitted. 5. The defence case was that Mr Horgan had approached the appellant aggressively and had attempted to head-butt him. The appellant's case was that he had thrown a punch at Mr Horgan in self-defence and that the two had then grappled up against a car. The appellant said that he then left the scene with Mr Spooner but Mr Horgan stayed there and the violence continued. 6. The issues for the jury were, therefore, whether the appellant might have been acting in self-defence or, if not, whether the appellant took some part in the attack against Mr Horgan with the intention of causing him really serious bodily harm. 7. Before the Recorder gave his directions to the jury he sought the opinion of counsel for the Crown and of the defence as to whether or not an alternative verdict of guilty contrary to section 20 of the Offences Against the Person Act 1861 should be left to the jury; that is to say, a verdict of guilty of grievous bodily harm. Both the prosecution and defence counsel indicated that they did not want the alternative verdict to be left to the jury and the Recorder acceded to this view. Therefore, no alternative verdict was put to the jury or dealt with in the course of the Recorder's directions. 8. It is now submitted on behalf of the appellant that, in the light of the leading authorities, this was an error on the part of the Recorder. Mr Tom Godfrey, for the appellant, has accepted that when he answered the question from the Recorder about the possibility of leaving the alternative section 20 verdict to the jury, he did not particularly have in mind the leading authorities, in particular the House of Lords' decision in R v Coutts [2006] 1 WLR 2154 and this court's decision in R v Foster and others [2008] 1 WLR 1615 (Practice Note). 9. The first ground of appeal is that, because the section 20 alternative verdict was not left to the jury, the conviction of the section 18 offence is unsafe. 10. The second potential ground of appeal, and the matter which the single judge has referred to the full court, concerns events that occurred after the jury had returned its verdict. In the light of the clear conclusions that we have reached with regard to ground 1, we do not need to set out the facts which give rise to the proposed ground 2. Accordingly, we will deal only with ground 1. 11. The question is whether the fact that the Recorder did not leave an alternative section 20 verdict to the jury renders the conviction of the appellant unsafe. The statutory basis for possible alternative verdicts in relation to trials on indictment is provided for in section 6(2), (3) and (4) of the Criminal Law Act 1967. Section 6(2) relates to indictments for murder. Sections 6(3) and (4) relates to offences, other than treason or murder, tried on indictment. 12. The general principles to be derived from R v Coutts and R v Foster are, so far as this appeal is concerned, as follows: (1) before any requirement to leave an alternative verdict to the jury arises, that alternative verdict must be "obviously" raised on the evidence. The alternative verdict must suggest itself to the mind of "any ordinary knowledgeable and alert criminal judge"; see Coutts at paragraph 23, Foster at paragraph 54. (2) That test will generally only be passed if the alternative verdict is one to which a jury could reasonably come; which must mean that the alternative is one which really arises on the issues as presented at the trial. (3) There is no duty to put an alternative verdict if such a verdict would be remote from the real point of the case. (4) However, each case must depend on its particular facts. (5) The evidence, disputed and undisputed, and the issues of law and fact to which it gives rise, must be examined; see Foster at paragraph 61. A judge will not be in error if he decides that a lesser alternative verdict should not be left to the jury if that verdict can properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issue in the case; see Foster at paragraph 61. (6) Where the defence to a specific charge amounts to the admission or assertion of a lesser offence, the primary obligation of the judge is to ensure that that defence is left to the jury. If it is not, then the summing-up will be seriously defective and the conviction unsafe. (7) A judge may have to reconsider a decision not to leave an alternative verdict to the jury in the light of any question which the jury may see fit to ask; see Foster at 61. (8) At all stages the judge has to ask the question: will the absence of a lesser alternative verdict oblige the jury to make an unrealistic choice between the serious charge and a complete acquittal in a way which would unfairly disadvantage the defendant, see Foster also at 61. We emphasise that these are principles, not tramlines, and that each case depends upon its particular facts. 13. The submission of Ms Pinkus on behalf of the Crown this morning is that a section 20 verdict was not one that would have been open to the jury on the facts of this case. She submits that the principal issues were whether or not there was a defence of self-defence and whether or not the appellant left the scene, as he said he did, after there was a confrontation between himself and the complainant. She points out that the co-accused's evidence was that the appellant had stayed and was involved in the later group violence. She submitted that there was no evidence as to when the fracture of the eye socket was sustained. In all the circumstances, Ms Pinkus submits, this was not a case where a section 20 verdict was one which was obviously raised on the evidence. 14. We have to ask how should the principles we have set out be applied to the particular facts of this case? In some cases, a possible alternative verdict under section 20 of the Offences Against the Person Act 1861 is "obviously" an alternative to a verdict under section 18 ". The latter requires that a defendant has inflicted grievous bodily harm with intent to do so, the former requires that a defendant has inflicted grievous bodily harm, but there is no requirement to prove the specific intent to inflict grievous bodily harm. There need only be intent to inflict some lesser harm. We think that the question here is whether this alternative was obviously raised on the evidence and in the light of the issues that were raised at the trial. 15. The principal issues were: (i) did the appellant strike Mr Horgan at all; (ii) might he have done so in self-defence; (iii) if the prosecution proved that the appellant did strike Mr Horgan and the prosecution disproved that he did so in self-defence, were any of the blows that were made by the appellant on Mr Horgan made by the appellant with the intent of inflicting grievous bodily harm? We think that the correct approach to the question of whether the judge should have left an alternative verdict under section 20 to the jury is to ask this question: was the evidence such that, once the jury had concluded that the appellant did strike Mr Horgan and that he did not do so in self-defence, was it inevitable that a jury must have concluded that the appellant intended to inflict grievous bodily harm? 16. We cannot say that this had to be the conclusion of the jury. It seems to us that the jury might have concluded, on the evidence before it, that they were sure that the blow or blows struck by the appellant were not in self-defence in the sense that they were satisfied that such blows would not have been ones which were only reasonably necessary in the circumstances. But it does not follow that, once the jury had rejected self-defence, they had to conclude that the blow or blows were made with an intent to cause grievous bodily harm. Although one blow caused a fractured eye socket, in our view, a jury, properly directed, could have concluded on the evidence that that blow, or any other blows, were not inflicted with intent to cause grievous bodily harm. 17. Accordingly, it seems to us that, taking all the relevant factors into account, the Recorder's first instinct, which clearly was to consider putting an alternative verdict to the jury, was the correct one. We think that the verdict was unsafe because, on the facts of this case, we think it did or may have put the jury in a position of having to make an unrealistic choice between the serious charge under section 18 and an outright acquittal. This may have operated to the disadvantage of the appellant in this case. 18. Therefore, we have concluded that the appeal must be allowed on the first ground of appeal. Accordingly, we do not need to consider the second possible ground. 19. So the appeal is allowed 20. 21. MR GODFREY: I am very grateful, my Lord. 22. LORD JUSTICE AIKENS: Thank you. 23. MS PINKUS: My Lord, the current position would be that the Crown would seek a retrial. Obviously I would convey the judgment to those who instruct me and I would ask for some time for that matter to be considered, together with the witnesses, who will have be consulted again about the way forward in this matter. 24. LORD JUSTICE AIKENS: Well, I think whether we grant leave for that is something we ought to consider now. Whether you pursue it, of course, is a different matter. You will have a certain time in which to prefer an indictment and you can make your final decision within that time. But, I think, if you want to make an application, you must make it then. 25. MS PINKUS: Yes, my Lord. Then the Crown would seek a retrial in this matter. 26. LORD JUSTICE AIKENS: Right. On what basis? 27. MS PINKUS: On the basis that the section 20 , as an alternative verdict, will now be left to the jury. 28. LORD JUSTICE AIKENS: Yes, but on what basis do you seek a retrial? Presumably it would not be on the basis of an indictment which contains simply a section 20 matter. 29. MS PINKUS: My Lord, no, on an indictment containing two counts, section 18 , count 1, and, as an alternative, but as an separate count, section 20 on count 2. 30. LORD JUSTICE AIKENS: All right. Mr Godfrey? 31. MR GODFREY: My Lord, my client -- he sits at the back of court in fact -- he is a young man, aged now 20. These proceedings are now very old, they go back to August of last year. Should there be a retrial of course, it will not take place -- I know Kingston Crown Court listings are busy -- it will not take place for some time. It has been an enormous strain on him having these matters outstanding. My Lord may have read, he is an university student, or certainly was: he has had to now defer his second year until September, due to the stresses, and one can well understand, of these ongoing proceedings. 32. I wonder whether, in the light of that, in light of his exemplary character hitherto -- I will not need to refer your Lordship to his character references -- whether in these circumstances it may be appropriate to draw a line now at this stage and allow Mr Caven, the appellant, to return to his studies. 33. LORD JUSTICE AIKENS: Yes. Thank you. (Pause) 34. Thank you very much, Mr Godfrey, but we think, in all the circumstances, particularly given the fact that Mr Horgan did, for whatever reason, suffer a serious injury to his eye socket, that the public interest lies in there being an order for a retrial. (Pause) . 35. We do not seem to have the standard sheet here, Mr Godfrey and Ms Pinkus, so we will have to try and work through this on our own without it. The normal rule is that the indictment is to be preferred within two months, is it not? 36. MS PINKUS: I think so, my Lord. 37. LORD JUSTICE AIKENS: And that the question of listing is to be dealt with by the appropriate authorities in the South Eastern Circuit. I think there are one or two other orders we are meant to make. (Pause) . 38. So we have to make an order obviously allowing the appeal, which we have done. We have quashed the conviction, which we have done. At any given point, the counts are quashed. The appellant will be retried upon that count, but a fresh indictment is to be preferred and he will be arraigned on the fresh indictment within two months, according to section 8(1) as amended by section 43 of the Criminal Justice Act 1988 . 39. The appellant is on bail at the moment? 40. MR GODFREY: He is on bail, my Lord, yes. There is a condition of residence. It was imposed by the learned Recorder at the aborted sentencing hearing, principally, it seems, so that probation could be in touch with Mr Caven. He is now residing back at his mother's address. I do not know whether your Lordship is seeking a condition. He was certainly on unconditional bail -- forgive me, non-contact -- with the Crown witnesses up until his trial. 41. LORD JUSTICE AIKENS: Yes, thank you. 42. The address that is given here -- this is the order that is made on 9th August. That is the address you are talking about, is it, the conditional bail? 43. MR GODFREY: Two addresses were put forward: one was his home address, which is in Wimbledon or Southfields, and the other address was one in Portsmouth, where he was studying. 44. LORD JUSTICE AIKENS: This is the Wimbledon one. 45. MR GODFREY: Very well. 46. LORD JUSTICE AIKENS: So you are content that there should be that condition, or not? 47. MR GODFREY: My Lord, I see no real reason why there should be a condition of residence. He is certainly not going to flee the vicinity. He is a man of unblemished character and, as I say, there certainly was not that condition whilst he was awaiting trial. 48. LORD JUSTICE AIKENS: Yes. But the reason given is to ensure attendance, here, which I suppose is the standard reason. (Pause). 49. There will be a condition of non-interference, of course, but no residence condition will be imposed. 50. MR GODFREY: I am grateful. 51. LORD JUSTICE AIKENS: There will be a representation order for the retrial. 52. MR GODFREY: Thank you. 53. LORD JUSTICE AIKENS: And the order that we have already made now must be extended under section 4(2) to include a restriction on the reporting of all of the proceedings until after the conclusion of the retrial. 54. Obviously the fresh indictment will not be confined to section 18 . It will include a second count, inevitably. 55. Anything else that you think we need to deal with? 56. MR GODFREY: My Lord, not from me. 57. LORD JUSTICE AIKENS: Ms Pinkus? 58. MS PINKUS: No, thank you, my Lord. 59. LORD JUSTICE AIKENS: Thank you both very much indeed.

2011_12_20-2902.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/3239/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/3239

705c395dd659e5bade154f2d94e7df2fc70e7906a56f9d7beab621de2f046c45

[2015] EWCA Crim 1997

EWCA_Crim_1997

crown_court

No: 201403730 B3 Neutral Citation Number: [2015] EWCA Crim 1997 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 4 November 2015 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (LADY JUSTICE HALLETT DBE) MR JUSTICE EDIS HER HONOUR JUDGE MAY QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - R E G I N A v KIRK TERRANCE MORGANS - - - - - - - - - - - - - - - - - - - Compu

No: 201403730 B3 Neutral Citation Number: [2015] EWCA Crim 1997 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 4 November 2015 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (LADY JUSTICE HALLETT DBE) MR JUSTICE EDIS HER HONOUR JUDGE MAY QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - R E G I N A v KIRK TERRANCE MORGANS - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - Mr P Rule appeared on behalf of the Applicant The Crown did not attend and was not represented - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 10 April 2014 in the Crown Court at Reading, the appellant was convicted of an offence of arson with intent to endanger life. On 13 June 2014 His Honour Judge Ross sentenced him to a term of 8 years' imprisonment, ordered to be served consecutively to a sentence of 3 1/2 years imposed two months before at the Winchester Crown Court for conspiracy to commit burglary. He applies for an extension of time of some 90 days for the application in respect of conviction and 26 days for sentence. Mr Rule has explained in his written submissions that there was some confusion over whether or not he would continue to act for the applicant. 2. The facts are that on Sunday 6 October, the applicant was involved in a collision with a parked car belonging to Mr and Mrs Portsmouth in Mercian Way, Slough. They called the police and the applicant was arrested. He was bailed. He was on bail for another matter at the same time, a conspiracy to burgle. This involved his wearing an electronic tag. Mrs Portsmouth was woken that night by the sound of her fire alarm and the smell of smoke. Mr Portsmouth, medicated and with poor hearing, was sleeping downstairs and not disturbed. Fortunately, Mrs Portsmouth managed to wake him. He discovered that his front door was ablaze. While his wife called the emergency services, he tackled the fire with buckets of water from the kitchen sink. By the time the police and the fire brigade had arrived, ten buckets of water had extinguished the fire. It had been started by somebody pouring petrol through the letterbox and setting that petrol alight. But for the fire alarm, the fire might have spread, releasing toxic smoke which is the main cause of deaths in house fires. 3. The only person of whom the Portsmouths could think who would want to cause them harm was the applicant. Because he was on a tagged curfew, police officers could establish that he had apparently left his home at 3.56 am, returning at 4.05 am. CCTV footage indicated a hooded figure walking the same route the applicant would have walked to the Portsmouth house from his own home. 4. Police officers could smell petrol when they went to arrest him, in his home, in his bedroom and on his clothes. They found a hooded top fitting the description of that seen on the CCTV footage. His mother's car, thought to be the source of that used in setting the fire, reeked of petrol. 5. The defence case was that the applicant had not been driving the car at the time of the accident, but was a passenger in it. At the time of the fire he had been having a bath and this had prevented the tag from working. Petrol had got onto his clothes from a carburettor he purchased on the Saturday. 6. Mr Rule advances four grounds of appeal against conviction and two grounds of appeal against sentence. He argues that the conviction is unsafe in the following respects. Ground 1 7. The judge's direction as to the proper approach for the jury to take to evidence of intoxication and consumption of alcohol by the applicant was wrong. The judge in his summing-up to the jury said this: "I need to touch on the issue of drink. There is evidence from the defendant that he had been drinking that night, following his return home from the police station and hospital. A drunken intention to endanger life is no different from a sober intention to do this. Intentions formed when inhibitions are eased as a result of the consumption of alcohol are to be treated as if they were intentions formed when sober. So the fact that someone might do something when drunk that they would not do when sober does not mean that they are unable to form the intention that is required here." 8. Mr Rule maintained that the judge was obliged to go further and direct the jury that drunkenness was part of the overall circumstances of the case to be borne in mind when deciding on the question of specific intent. He took us to the recommended directions provided by the Judicial Studies Board as it was, now Judicial College. He placed reliance on the decision in R v Brown and Stratton [1998] Crim LR 485, in which the court held at page 486: "In a case requiring a specific intent, such as a section 18 offence, it is in our view necessary, as the form of direction in the Crown Court Bench Book makes quite clear, to inform the jury that in deciding whether the defendant had the specific intent they must take into account the evidence that he was drunk and that if, because he was drunk, the jury considers that he did not intend or may not have intended to cause the requisite degree of harm, then the defendant is entitled to be acquitted." Mr Rule complains that the judge compounded his error by directing the jury wrongly on count 2, the reckless arson charge, that drink was irrelevant. Conclusions on Ground 1 9. We can deal with this ground swiftly. First, and most importantly, unlike the facts of R v Brown and Stratton drunkenness was not an issue at the applicant’s trial; the defence was alibi. The applicant said that he had been drinking but did not suggest he was drunk or that drink had played any part in his conduct or thought processes. Had drunkenness been an issue we might have seen some force in the criticism that the judge's directions in respect of the relevance of drink could have been fuller. However we have considered the directions overall and in the context of the facts of this case. We are satisfied the judge directed the jury in clear terms that they could only convict of count 1 if they were sure that the applicant deliberately set the house on fire intending to endanger life. Ground 2 10. The second ground was drafted in 2014, before Mr Rule had the benefit of the judgment in R v Hunter and Ors [2015] EWCA Crim 631 ; [2015] 2 Cr App R 9 . This ground was based on the fact that the judge failed to give a positive direction upon the applicant's character in relation to a lack of propensity. The applicant had convictions but not for arson or criminal damage. The only evidence adduced as to character was that the applicant was on electronic curfew at the time of the fire. This was adduced as relevant background evidence on timings. The jury were told simply that it had no bearing whatsoever on the likelihood of his having committed the offence. 11. Nevertheless, Mr Rule submitted that there was enough character evidence before the jury for the judge to give at least the second limb of the good character direction, the propensity limb. He submitted it was relevant to the jury's assessment of the two key issues: the identity of the perpetrator and the perpetrator's intent. He tried to advance a argument that it is unfair to allow the prosecution to rely on evidence of propensity but not to require judges to give a defendant the benefit of a lack of propensity direction. 12. Conclusions on Ground 2 13. Mr Rule’s argument was considered in Hunter and rejected, and, Mr Rule should have abandoned it when he read the judgment. As Hunter makes clear, there is nothing to prevent the defence adducing evidence of character and arguing a lack of propensity, but it does not follow that they may demand a propensity direction from a trial judge. A defendant with convictions is not entitled as of right to any part of the good character direction, for the simple reason he does not have a good character. 14. The approach of the court in R v Gray [2004] EWCA Crim 1074 was expressly disavowed on this issue in Hunter . If the conviction or convictions qualify under all three heads of being old, minor and irrelevant (which they did not here), the judge must decide whether to treat a defendant as of effective good character. If he does, then the judge should give the direction. Where an offender has convictions that are not old, minor and irrelevant (as here), it is a matter for the judge to decide whether or not to give any part of the good character direction. He or she has a broad discretion, with the exercise of which this court will be reluctant to interfere. We do not intend to do so here. 15. We add only this: this is not the first appeal since the judgment in Hunter was delivered where an offender with previous convictions or a bad character generally has claimed an entitlement to at least part of the good character direction. The same seems to have happened in R v Styles [2015] EWCA Crim 1619 . Most unfortunately the court in Styles was not referred to R v Hunter . It should have been. Had it been, the court would have placed no reliance on Gray on this issue. Nothing said in Styles , therefore, should be taken as in any way undermining the clear principles set out in Hunter. Reliance should not be placed on Styles for the purposes of seeking a good character direction or trying to persuade this court one should have been given. Ground 3 16. Mr Rule argued that the judge's directions on the treatment to be given to lies (otherwise known as the Lucas direction) were inadequate or wrong. The judge gave the jury a Lucas direction, but told them to consider potential innocent explanations of a very generic nature. He also failed to direct the jury to separate the issues of establishing the identity of the perpetrator from establishing evidence as to specific intent. Mr Rule placed reliance on R v Bullen [2008] 2 Cr App R 25 at 364, on the basis of which he submitted that the judge failed to do what was required of him, which was to tailor the Lucas direction to the specific circumstances of the particular case. He failed to direct the jury upon the very real possibility that the applicant's lie or lies were directed at avoiding responsibility for a lesser offence. Therefore, even if the jury was satisfied that he had lied on one or more issues, it did not necessarily establish that he had the specific intent required for count 1. Mr Rule also suggested that the judge's directions may have suggested to the jury that a lie alone might prove guilt. 17. Finally on this ground, Mr Rule complained that the judge’s Lucas direction was not restricted to the one lie about the identity of the driver who collided with the Portsmouths' parked van. The judge referred to a number of alleged lies, most of which Mr Rule described as not proven, not admitted and going only to peripheral issues. In this way, Mr Rule submits that the judge has diluted the essential message of a Lucas direction and failed to give the applicant the benefit of it. Conclusions on Ground 3 18. The judge directed the jury that someone may lie through panic, confusion, or may lie to bolster a true defence. He could have phrased the direction on the capability of lies to establish guilt in rather better fashion, but again, looking at what he has said in the context of the summing-up as a whole, we are satisfied that the direction was adequate. The judge’s directions left the jury in no doubt of the task ahead of them. He was entitled to a remind them of the series of lies upon which the Crown relied. Ground 4 19. Mr Rule complains that there was a failure to sum up fairly and or adequately place the defence case before the jury. This he claimed gave the appearance of bias in favour of the prosecution case. He concedes that the judge reminded the jury of evidence upon which he relied and arguments he advanced but he contended the judge did not go far enough and took matters in the wrong order. 20. Conclusions on Ground 4 21. In our judgment, this criticism has no merit whatsoever, and, with respect, Mr Rule is being over-sensitive. The summing-up is full, fair and even-handed. The judge was not obliged to rehearse all the evidence and all the arguments every time he referred to the issue of specific intent. Further it is a matter for a trial judge how he structures the summing-up, provided it is of course fair to a defendant overall. The jury in this case could have been in no doubt as to the issues, the evidence, the arguments and the principles of law to be applied. Appeal against sentence 22. Mr Rule submitted that the sentence is excessive for two primary reasons. First, the judge failed to have regard to important matters of mitigation that ought to have led to a reduction in sentence. Second, the aggregate of the consecutive sentences resulted in a sentence that offended the principle of totality. Mr Rule reminded us that the judge had taken as the appropriate term for the present offence 9 1/2 years' imprisonment. He had then made a reduction to reflect totality. Mr Rule suggests that the total sentence of 11 1/2 years remained too high. 23. He properly acknowledged a number of aggravating features of the arson: the fact that the domestic premises were occupied; that the offence was committed in the early hours of the morning; that the applicant was on bail at the time of the offence and in breach of his curfew; that there was significant psychological harm and distress caused to the victims; that this was a revenge attack, and there was some planning involved. 24. However, he also advanced a number of mitigating features: no serious physical injury was caused; the fire was a small fire that was short-lived; it was set by the front door and the Portsmouths could escape by the rear, the applicant would have known this because his mother lived in a similar house; the majority of the petrol was outside the property, not inside; the applicant must have been aware there was a loud television and lights on; he had no previous convictions for offences of violence to the person or property; there were significant pressures in his life at the time of the offence, putting him under considerable stress - pressures at work, in the home and from particular family events; he had no previous interventions in his life by way of a community penalty or custodial sentence; and he was assessed as being at medium risk of re-conviction. Finally, Mr Rule placed emphasis on character references put before the court that showed another side to the applicant's character. They also spoke as to the problems he had experienced in the build-up to the offence. Conclusions on sentence 25. The trial judge was well placed to assess the applicant’s criminality. He was well aware both of the facts of the offence and of the offender. He had the available mitigation in mind when he considered the issue of the applicant’s dangerousness with some care. It was only with a degree of hesitation that he found in the applicant's favour that he was not dangerous. There were, as conceded by Mr Rule, multiple aggravating features to the attack which we do not need to repeat. The only thing we will add is that it is pure good fortune that nobody was more seriously injured or died in the arson attack. 26. For all those reasons, we find there is nothing excessive about the sentence, either taken in isolation or in combination with the existing sentence. If the cases reveal a bracket of 8 to 10 years for offences of arson with intent as Mr Rule argued, we do not accept that it imposes some kind of upper limit on offences, no matter how serious. In any event we have our doubts as to the extent to which a so called bracket can assist a judge sentencing for offences of this kind. Offences of arson with intent merit a particularly intense focus on the facts of the individual offence and of the individual offender. 27. The application for an extension of time and the applications for leave to appeal both conviction and sentence are accordingly refused. 28. Mr Rule, have you been working pro bono? 29. MR RULE: Yes. 30. THE VICE PRESIDENT: You have done a huge amount of work and we do understand and appreciate that, but a word of warning: not so much next time.

2015_11_04-3674.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1997/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1997

829d1155363bb16868f418ce63d9bbed2ebf09683786a28853e1dfc599a49e82

[2010] EWCA Crim 1485

EWCA_Crim_1485

crown_court

Neutral Citation Number: [2010] EWCA Crim 1485 Case No: 2010/01633/B5 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/06/2010 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MRS JUSTICE RAFFERTY and MR JUSTICE KING - - - - - - - - - - - - - - - - - - - - - Between : R - v - D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr D Waters QC and Mr N Rudolf for the Appellant Mr J McGuinness QC and M

Neutral Citation Number: [2010] EWCA Crim 1485 Case No: 2010/01633/B5 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/06/2010 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MRS JUSTICE RAFFERTY and MR JUSTICE KING - - - - - - - - - - - - - - - - - - - - - Between : R - v - D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr D Waters QC and Mr N Rudolf for the Appellant Mr J McGuinness QC and Mr W Hays for the Crown Hearing dates : 9 th June 2010 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is an application for leave to appeal against the result of a review of sentence under section 74 of the Serious and Organised Crime and Police Act 2005 ( the 2005 Act ). 2. It arises in this way. Following information provided by the authorities in Spain, the applicant was arrested some years ago for his involvement in the large scale importation of class A drugs into this country. The evidence of his guilt was clear, and the details need no further recitation. The street value of the drugs recovered in the course of the investigation ran to many millions of pounds. 3. Following his arrest the applicant absconded and lived abroad. He was not re-arrested and brought before the court for some 3 years. He pleaded not guilty to the indictment and thereafter indulged in a course of conduct described by the trial judge, and rightly so in our view, as playing the system. It was not until very shortly before the date fixed for trial that he changed his plea to one of guilty. In sentencing the judge allowed a discount of just under 20% for the guilty plea and made an appropriate direction under section 240 of the Criminal Justice Act 2003 in relation to days in custody. 4. After this sentence the applicant conveyed some willingness to provide intelligence to the Serious Organised Crime Agency. In the meantime, however, he sought leave to appeal against sentence. When the application was refused, he renewed it, but again it was refused by the Full Court on the basis that the sentence was fully justified. 5. In the course of his discussions with the authorities the applicant provided them with information about the identity of another criminal. He was asked, but refused to give evidence against him. However careful investigation of the material the applicant provided eventually produced sufficient evidence ultimately leading to a successful prosecution. For present purposes this assistance, as far as it went, was obviously relevant to the calculation of sentence if and when the applicant entered into a written agreement with a specified prosecutor in accordance with the terms of the Act . And in due course, following the unsuccessful application for leave to appeal against sentence, the applicant entered into what we shall describe as a SOCPA agreement, that is, a written agreement under section 73 of the 2005 Act . 6. Under the agreement he agreed to provide details of everything within his knowledge or belief about the drug trafficking activities of some 32 individuals and similar details in relation to the criminal activities of 4 individuals suspected of involvement in money laundering and investment of the proceeds of crime in property; full details of his knowledge of methods of concealment and drug transportation routes; any material bearing on these questions; continuous and complete co-operation throughout the subsequent investigations and any prosecutions. 7. At the same time, he did not agree to give evidence against anyone, and apart from fully admitting his own involvement in the matters which would be investigated, he did not provide the authorities with full and complete admissions of all his own criminal activities. 8. On the basis of this agreement the applicant provided the information he had agreed to provide. He was de-briefed over a period of 17 days. He provided information relating to a number of individuals and the organised importation of large quantities of class A drugs from South America, which came via Europe into the United Kingdom, together with names and addresses of those involved in the importation of such drugs and money laundering. In addition he provided tactical and strategic intelligence on the methods used by some of the groups involved in organised drug importation and money laundering. The information he provided was accurate, and resulted in a number of inquiries by the authorities as well as some general disruption of criminal activity. No arrests have yet taken place. 9. The case was restored to the list for a review of sentence. The judge was satisfied that the applicant had fully co-operated with the authorities. He deducted what he described as a further discount from the sentence he had originally imposed to allow for the assistance given by the applicant, which he assessed “in the region of 25%”. 10. It is submitted by Mr David Waters QC on behalf of the applicant that this discount was too low, insufficient to reward the applicant for the assistance he had provided. Relying on the guideline decision of this court R v P ; R v Blackburn [2008] 2 Cr App R(S) 5 he posed two questions: “(i) whether in circumstances where an individual provides information of considerable value, does everything asked of them by SOCA and fulfils their end of the “contract” in entirety, they are entitled to the “normal” discount of between 50%-66% of the sentence that would have been passed after a trial. (ii) is it the case that because the individual has given information which is not of a nature which could readily be converted into admissible evidence to be given from a witness box, and he is accordingly not asked to give evidence, the reduction in sentence should be less than 50%”. 11. The relevant statutory requirement is found in section 74(6) of the 2005 Act . When the applicant was sentenced there had been no discount for any assistance he might have given to the authorities because at that date he had given none. This therefore was a “review” of that sentence, and in conducting it, the court was entitled to “take into account the extent and nature of the assistance given or offered”, and substitute “such lesser sentence as it thinks appropriate”. These provisions were examined in R v P ; R v Blackburn , and guidance was given about the approach to these questions in the context, not of a review of the sentence of an individual, like the applicant, who had provided assistance after sentence, but of sentences imposed on defendants after they had entered into an agreement governed by the terms of the Act , and who argued that the sentencing court had made insufficient allowance for the assistance they had provided. Unsurprisingly Mr Waters concentrated his attention on a sentence at the end of paragraph 41 of the judgment, which reads: “It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed, and the normal level would continue as before, to be a reduction of somewhere between one half and two thirds of that sentence”. 12. Mr Waters acknowledged that cases would fall outside this “normal level” and that the court had emphasised that the sentencing decision in each case was fact-specific. Nevertheless he urged that there was nothing to suggest that this was anything other than an ordinary case of its kind. The applicant had complied with the terms of his agreement, and he had therefore earned the normal level of discount. However, as it seems to us as a matter of principle, the extent of any discount must be based on the value to the administration of justice of the performance by the defendant of his statutory agreement, and not on the simple fact that the agreement, so far as it goes, has been performed. 13. In this case the applicant performed his agreement, and provided valuable information, but nevertheless it was a limited agreement. He did not describe his own full criminality. He was not prosecuted for it. He did not agree or offer to give evidence against anyone. He declined to give evidence against the criminal he identified when he first approached the authorities with a view to acting as a possible informant. In short, as he was entitled, the agreement he entered into was much less comprehensive than it might have been, and certainly much less so than the agreement entered into and performed by the defendants in R v P ; R v Blackburn . It would therefore be surprising if he were entitled to the same level of discount. In any event, he is not entitled to be treated as if he had offered to provide evidence, or had provided evidence, merely because, according to his instructions to Mr Waters, he was not invited to do so. 14. In R v P ; R v Blackburn it was emphasised that particular value attached to the defendant who provided evidence, or agreed to give evidence at any subsequent trial, and if so, it also followed that the defendant would have to admit the full extent of his own criminal activities, and if appropriate, beprosecuted and sentenced for them. In such cases there was not the slightest doubt that his former colleagues or those brought to justice as a result of his efforts would know of his involvement in the process, and where the cases involved major criminal, gangland activity, the consequent risks both to the defendant and to his family would be very high indeed. We recognise that although the level of risk in this case is not as serious as it can sometimes be, and every effort is being made to ensure that the applicant’s co-operation with the authorities is kept hidden from view, some risk inevitably remains, and there is a danger that his activities would become known to former colleagues, who in the context of the present case, would be likely to be merciless. Again, however, that risk is less serious than that faced by the defendant who has provided a witness statement or given evidence against criminals with similar vicious characteristics. 15. Addressing Mr Waters’ further submissions, we recognise that there may be cases when information and intelligence may be offered which will be of inestimable value to the administration of justice, and about which, for example the defendant cannot, even if he wished, provide admissible evidence at any subsequent trial. Again, it does not necessarily follow that the absence of any arrest consequent on the provision of information automatically renders it less valuable than it might reasonably be expected to be. These are all questions for the assessment of the judge. Finally, the mere fact of delay does not result in an automatic reduction of discount. In the present case the information or intelligence provided by the applicant was provided after he had sought, unsuccessfully, to manipulate the system to his advantage. His co-operation only began after sentence had been imposed on him and he had been in custody for over a year. Naturally he could not be blamed for the delays which arose after he decided to co-operate, but the delay for which he was responsible diminished the value of the information he provided. To the extent that it has, then the level of discount must be reduced proportionately. 16. In the result, the answer to the questions posed by Mr Waters are (i) that such an individual is not so entitled and (ii) that the reduction in sentence should not necessarily be less than 50% merely because the individual has given information which cannot readily be converted into admissible evidence. As we explained in R v P ; R v Blackburn “what the defendant has earned by participating in the written agreement system is an appropriate reward for the assistance provided for the administration of justice”. That, in the end, is always fact-specific. 17. There was some further discussion about the way in which the judge conducting the review should approach the reconsideration of the sentence imposed before the defendant had begun to co-operate with the authorities, and entered into the written agreement. As it seems to us, in accordance with R v P ; R v Blackburn , the judge should once again go back to the original starting point, that is, the appropriate sentence to reflect the criminality of the defendant, and such mitigation as is available, before taking account of any guilty plea. From that figure the sentence should be discounted to allow for the assistance provided by the defendant, and the notional sentence then discounted to make appropriate allowance for the guilty plea. Thus, to illustrate the method of calculation by example: let us take the hypothetical case where a sentence of 30 years’ imprisonment is appropriate. The level of assistance merits a 50% discount. That brings the figure down to 15 years. The guilty plea was offered at the earliest opportunity. A further 33% discount would then be allowed from the 15 year term. The end result would be 10 years’ imprisonment. In the present case, of course, the allowance for the guilty plea had already been made. But in a case such as this, the approach to be taken by the judge (who will generally be the trial judge) is to start again by reminding himself of the notional starting point, then apply the discount for the assistance offered by the defendant, and then, assuming there was a guilty plea, apply the level of discount which was applied when the defendant was first sentenced. 18. In the result, the judge decided that an appropriate allowance for the assistance given by the applicant was “somewhere in the region of 25%”. Although his assessment of sentence did not follow the method we have just suggested, and despite the careful argument advanced by Mr Waters, in the result, no basis for interfering with the assessment, and no error in the overall result of the review has been shown. Accordingly the application will be dismissed.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1485/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1485

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[2024] EWCA Crim 340

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Neutral Citation Number: [2024] EWCA Crim 340 Case No: 202303577 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LIVERPOOL His Honour Judge Murray T20217184 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/04/2024 Before : LORD JUSTICE EDIS MRS JUSTICE FARBEY and THE RECORDER OF SHEFFIELD His Honour Judge Richardson KC, Sitting as a judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - Between : THE KING Appellant - and

Neutral Citation Number: [2024] EWCA Crim 340 Case No: 202303577 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LIVERPOOL His Honour Judge Murray T20217184 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/04/2024 Before : LORD JUSTICE EDIS MRS JUSTICE FARBEY and THE RECORDER OF SHEFFIELD His Honour Judge Richardson KC, Sitting as a judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - Between : THE KING Appellant - and - BRADLEY LUXTON Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - David Perry KC and Alex Langhorn (who did not appear below) (instructed by CPS Proceeds of Crime Division ) for the Appellant Nathaniel Rudolf KC (who did not appear below) and Barnaby Hone ( assigned by the Registrar ) for the Respondent Hearing dates : 15 March 2024 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30am on 16 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Lord Justice Edis : 1. This is the fifth case in a series of appeals by the prosecution under section 31 of the Proceeds of Crime Act 2002, “the 2002 Act”. Where a section number is given in this judgment without specifying the Act from which it comes, it is a section of the 2002 Act. Under s.31(2), if the Crown Court decides not to make a confiscation order the prosecutor may appeal to the Court of Appeal. The Court of Appeal may confirm the decision or if it believes the decision was wrong may itself proceed under section 6 or direct the Crown Court to proceed afresh under section 6, see section 32(2). 2. The first four cases are the subject of our judgment (“the main judgment”) handed down immediately before this judgment, neutral citation number [2024] EWCA Crim 344. These two judgments should be read together. We adopt our summary conclusions in paragraphs [4]-[11] of the main judgment, our analysis of the authorities at [12]-[14] and the fuller reasoning on common principles at [24]-[34]. We shall refer to the authorities, where necessary, by reference to the abbreviations in the Table in paragraph [12]. There are additional authorities referred to in this judgment and these are identified here:- Title Reference Level Abbreviation in this judgment R v. Grice 66 Cr App R 167 CACD “Grice” R v. Menocal [1980] AC 598 HLE “Menocal” R v. Reilly [1982] QB 1208 CACD “Reilly” R v. Miller (1992) Cr App R 19 CACD “Miller” R v. Neish [2010] EWCA Crim 1011; [2010] 1 WLR 2395 CACD “Neish” R v. Warren [2017] EWCA Crim 226 CACD “Warren” R v. White (Horace) [2021] EWCA Crim 1511; [2022] 4 WLR 10 CACD “White (Horace)” 3. The application for leave to appeal was referred directly to the Full Court by the Registrar with the cases that are the subject of the main judgment. The reason why this case was heard separately and why we are giving a separate judgment is that it raises three further issues beyond those which were settled in the main judgment. It is not without its complexity. These issues are:- i) Is a decision to refuse an application under section 385 of the Sentencing Act 2020 (often called “the slip rule”, but see below) to rescind a decision not to make a confiscation order and to refuse to set aside a financial order made in place of a confiscation order a “decision to refuse to make a confiscation order”, giving rise to a right of appeal under section 31(2) of the 2002 Act? ii) If not, what is the effect of the making of a financial order in breach of section 15(2) of the 2002 Act on the jurisdiction of the Crown Court to proceed under section 6? iii) In any event, was the decision of His Honour Judge Murray on 27 July 2023 a “decision not to make a confiscation order” giving rise to a right of appeal under section 31(2)? If so, should that appeal be entertained where the prosecution withdrew the proceedings, having been confronted with the wrongly decided case of Iqbal ? The facts of the confiscation proceedings 4. The respondent’s involvement in the higher echelons of drug dealing across the UK was discovered as part of Operation Venetic, the police operation into encrypted telecommunications known as ‘Encrochat’. Between March and June 2020, the respondent had arranged multiple transactions of kilos of Class A and Class B drugs worth thousands of pounds. He was arranging the delivery of drugs all over the country including locations as far from his home in the Wirral as Cornwall, Bournemouth and Tyneside. The profits were ploughed into building and renovating his home. 5. He pleaded guilty to six counts of conspiracy on 23 April 2021. These were 5 counts of conspiracy to supply controlled drugs (being a count for each type of drug supplied) and 1 count of conspiracy to convert criminal property. He was sentenced to a total of 16 years’ imprisonment on 6 August 2021. On that day His Honour Judge Aubrey KC decided to postpone determination of the confiscation proceedings and set a timetable. The two year permitted period would have expired on 22 April 2023 had it not been, as the judge later found it was, extended by Mr. Recorder Waldron KC on 4 November 2022. i) On 22 November 2021, a ‘section 18 Statement of Means’ was served by solicitors acting for the respondent. ii) On 17 December 2021 and 31 January 2022 the timetable was varied. No date for the final hearing was set, and a Review Hearing was fixed for 2 May 2022 following the anticipated completion of the service of evidence under the statutory scheme. iii) On 8 March 2022, a ‘section 16 Statement of Information’ was served by the prosecution. This was in time. It valued the drugs which the respondent had supplied at £1,293,095. It suggested that this was a criminal lifestyle case, and gave an account of a number of complex property transactions resulting in a benefit figure of £2,136,183.70 and an available amount of £393,570.64. The property transactions involved the respondent’s father, Garry Luxton, and he occupied a property with his partner, Samantha Newton. Including Appendices, this document contained over 2,000 pages and represented a great deal of work. The police and prosecution had acted with diligence and reasonable expedition in its preparation. Time for a response was extended by the court until 22 July 2022 by order of 22 April 2022. iv) On 4 September 2022, after a series of extensions of time, a preliminary ‘section 17 Response’ was served on behalf of the respondent. It contended for a somewhat lower benefit figure and a lower available amount figure and included this:- “As the crown will be inviting the court to make a determination pursuant to s10A POCA 2002 as to the extent of the defendant’s interest in the above referred to properties, it is submitted that Samantha Newton and Garry Luxton should be notified of this by the crown and invited to the mention hearing to make representations.” v) On 16 September 2022, a ‘section 16 Response in Reply’ was served by the prosecution. This was in time according to the revised timetable. vi) On 1 November 2022, Sonn Macmillan Walker Solicitors indicated to the Court that they were instructed for interested parties under s10A of the 2002 Act, namely Garry Luxton and Samantha Newton. vii) On 4 November 2022 a hearing took place before Mr. Recorder Waldron KC at which the prosecution, the respondent and the interested parties were represented. After re-setting the timetable to allow the interested parties 8 weeks to serve their evidence and the prosecution a further 8 weeks to reply, Mr. Recorder Waldron said this:- “The case will be listed for a mention on 24 th March and this matter is set for a hearing with an estimated length of two days on 27 th July 2023.” In making this order, Mr. Recorder Waldron was fixing a hearing date outside the permitted period, which had not been extended. He did this because everyone present had made an error in assuming that the two year period ran from 6 August 2021. This was what was said in the prosecution section 16 statement, and it was an error. The interested parties could not check against the DCS, because they had not been granted access at that date. The date of conviction was there in the side bar for those who did have access to check. The judge did not consider whether there were exceptional circumstances for this reason. During the hearing the clerk of the court first suggested fixing the hearing for 17 May 2023, but this was not convenient to a witness. The next date offered by the court was the 27 July 2023, which was agreed. We can find no reference to this hearing in a widely shared comment in the side bar of the Digital Case System (DCS), or in the Memoranda section (which is used by the judges at this court), or anywhere else. A transcript was obtained in August 2023 at the prosecution request and we infer that there is a note on the prosecution file which caused them to make that request. There is a record on the Xhibit system on which the court clerk makes a record of hearings, but the parties do not have access to this. Matters would have proceeded much more smoothly in this case if prosecuting counsel then appearing had accurately informed the judge about the expiry of the permitted period, and if someone had made an accurate note of the order which was made as a widely shared comment on the DCS. Neither of these things were difficult to do. The date of conviction is clearly visible as a widely shared comment on the DCS. viii) On 9 January 2023, the interested parties lodged their witness statements and evidence. ix) On 24 March 2023 the mention hearing resulted in directions, see below. x) On 22 April 2023, the period of postponement expired. xi) On 29 April 2023, solicitors for the respondent wrote in these terms to the CPS:- “The above referred to case was last heard before Liverpool Crown Court on 24 March 2023 where the following directions were made: Skeleton and evidence by 5 May Prosecution response by 16 June Final bundle 30 June We have had difficulties in instructing Counsel in this matter but have now instructed Mr Baki to represent Mr Luxton. He will be preparing the skeleton argument but will need time to get to grips with the case and a legal visit is also booked with Mr Luxton for 12 June in which it is hoped Mr Baki can attend. Given this we write to ask whether you have any objections to the following extension request which will not impact on the contested hearing date: Skeleton and evidence by 16 June Prosecution response by 14 July Final bundle 21 July” xii) The revised timetable appears to have been adopted. Evidence gathering continued, as shown by the dates of some valuations which were provided to the court. On the day before the hearing of 27 July the solicitors for the interested parties wrote complaining that the hearing could not fairly proceed because of late service of material by the CPS. The hearing of 27 July 2023 6. On 27 July 2023, the matter was listed before His Honour Judge Murray. By this stage a very considerable quantity of material had been placed before the court, and counsel appeared for the prosecution, for the respondent and for the interested parties. The case was listed for a two day contested hearing. There had been very extensive correspondence between the various parties and the case had been case-managed by the Crown Court which exercised control over the timetable in a complex case. Neither the court nor any party had appreciated that the permitted period expired on 22 April 2023. 7. The prosecution indicated to the court that there had been discussions between all parties (prosecution, defence and interested parties) all morning but they had not yet proved fruitful. An adjournment was granted to the afternoon. 8. Counsel who then appeared for the prosecution describes what then happened in his witness statement, which is consistent with the transcript:- “6. When we were called back on, I indicated that we had not been able to reach a settlement on an offer put forward by the defence. I indicated that we were ready to proceed to a final hearing. 7. HHJ Murray then raised an issue of whether there had been an application to extend the period of postponement. I had been instructed the prosecution had applied for the permitted period which ended in April 2023 to be extended. My instructions were to apply for a further extension in the event of adjournment. 8. In light of HHJ Murray’s observations I checked my hearing record sheet and the DCS sidebar. I could see nothing to indicate the period had been extended. I did not consider whether the Court had extended the period of postponement of its own motion because I saw nothing to suggest it had. Whilst the Court had adjourned the last hearing, there had been no application to extend the period for exceptional circumstances and I was of the view it had not been addressed. This is clearly the point that HHJ had in mind. 9. HHJ Murray had obviously considered the provision in the statute that any application to extend must be made within the permitted period. 10. A discussion took place between all three Counsel. Mr Hone provided the case of Iqbal (2010). I was of the view the appellate court's very clear decision was fatal to this case. I thought the only option was to withdraw the confiscation proceedings. 11. We were called back on. HHJ Murray asked what I wanted him to do. I responded that he should dismiss the POCA proceedings. HHJ Murray asked “are you withdrawing” to which I responded “yes”. I did not have instructions to withdraw but took the decision in the belief Iqbal was fatal to the Crown’s application to extend the period of postponement. I could see no other option for the Crown. 12. It was clear that HHJ Murray had in mind that same view of fatality, hence why he raised it. Even if I had made an application at that stage to extend so that we could proceed to the final hearing at some future date, it would not have succeeded.” 9. The judge’s note on the side bar said:- “BRADLEY LUXTON Listed for POCA final hearing Prosecution withdraw proceeds of crime application Surcharge and collection order No order as to exhibits” 10. It is true that the prosecution did withdraw its application, but the judge knew why they were doing this. Counsel had been instructed that time had been extended until the day of the hearing, but neither he nor the judge could find any evidence of any application ever having been made. Both of them seem to have been aware of the order of 4 November 2022. That may be what counsel is referring to in paragraph 8 of his witness statement, above, as “the last hearing”. The transcript reads, in part:- JUDGE MURRAY: All right. Has there ever been in this case an application to extend time? COUNSEL FOR PROSECUTION: Yes, it was extended until today. JUDGE MURRAY: Says who? Can you show me an application to extend time? (Pause) COUNSEL FOR PROSECUTION: I cannot readily see one on the system. JUDGE MURRAY: That is why I am asking you to show it to me. COUNSEL FOR PROSECUTION: Yes. JUDGE MURRAY: Do you want to go and take some more instructions about this settlement? COUNSEL FOR PROSECUTION: On that, yes. JUDGE MURRAY: I tried to give you a hint before. COUNSEL FOR PROSECUTION: Yes. No, I took the hint, believe you me, I took the hint, but I have not---- JUDGE MURRAY: I am ready to start this. I will give you some more time if you want to take instructions about settlement. COUNSEL FOR PROSECUTION: Well, I do need to find out about the extension, whether that has actually been granted. Because if it has not we are outside the period, because the conviction date was April 2021. 11. There was then a short break after which the court convened again and this occurred:- PROSECUTION COUNSEL: Your Honour, thank you once again for the time and can I thank your Honour for spotting probably what is the most blindingly obvious starting point for this confiscation application, which is the application within the permitted time. Mr Luxton was convicted in April 2021, therefore---- JUDGE MURRAY: I took the pleas. PROSECUTION COUNSEL: ----and your Honour took the pleas, that is right. So the two year confiscation period expired in April 2023. Having checked all the hearing record sheets and the file, there is no evidence that an application to extend the permitted period beyond April exists. So no application has ever been made to the court or one that the defence have ever responded to and the period has lapsed in April. The position is from case law -- and I am grateful to my learned friend -- I have not read the case in full myself but I have seen the commentary of it, the case of R v. Iqbal , the Court of Appeal held that an application to extend must be made before the expiry of the permitted period and it seems to us that that brings this to an end because no application has ever been made. JUDGE MURRAY: So what are you doing? PROSECUTION COUNSEL: Well, I invite the court to dismiss the application. JUDGE MURRAY: So the prosecution are withdrawing this application, are they? PROSECUTION COUNSEL: Yes. JUDGE MURRAY: Okay, prosecution withdraw Proceeds of Crime Act application. 12. In his later judgment on 15 September dealing with the application under section 385 to vary or rescind his order of 27 July the judge recorded that he had accessed the Xhibit log of the hearing of 4 November 2022 on 27 July 2023. This passage of that judgment said:- “……prosecuting counsel told the Recorder that the 2 year period expired in the middle of August 2023. After that information was given – the date of 27 th July 2023 was given for the final hearing. It looked to me as if the hearing date of 27 th July 2023 was given as a result of the court being told that the 2 year limit ran out in mid-August 2023 – when it in fact ran out on 22 nd April 2023. That was of concern to me, as I couldn’t see that the issue of postponing beyond the 2 year period and the issue of exceptional circumstances had been addressed.” 13. This information was not shared with counsel on 27 July 2023 and so they made no submissions about it. It seems from paragraph 8 of his witness statement that prosecuting counsel entertained some similar thoughts, but he said nothing about that on the transcript. 14. The judge recorded the decision of the prosecution to withdraw proceedings knowing that it was made in the belief that no postponement of the proceedings to 27 July 2023 had taken place, and knowing that the prosecution believed, as a matter of law, that no application could be made for a postponement after the expiry of the permitted period. He also knew that the decision had been made by counsel on the basis of an authority which he had not read “in full”. Alarm bells about the reliability of the decision in Iqbal had been sounded in T and very loudly indeed in Guraj. It is perhaps a little disappointing that no-one brought those decisions to the attention of the court. It was suggested to us that T was a decision where the court had cited Iqbal without criticising it, but that is unsustainable. Lord Justice Laws said in T at [13]:- “In our judgment HHJ Ambrose should not have been inhibited, as he was, by Hooper LJ’s observation in Iqbal so as to conclude that there was no jurisdiction here to entertain the confiscation proceedings.” 15. The court there simply asserted that a judge should not have been inhibited by an “observation” which was on the face of it binding on him. That may have left the matter uncertain, but the Crown Court should have had both authorities, if it was to be influenced by either. In any event, Guraj is very explicit in expressing doubts about the correctness of Iqbal . 16. Finally, the judge did not know whether prosecuting counsel was aware that the 27 July 2023 hearing date had been fixed by a judge at a hearing on 4 November 2022. No mention of that event was made by anyone. The application under section 385 Sentencing Act 2020 17. The CPS quickly appreciated that an error had been made. On 4 August 2023 an application was made under section 385 of the Sentencing Act 2020 to rescind the surcharge order and the “order that there would be no confiscation order in these proceedings.” This was supported by a lengthy skeleton argument by Mr. Perry KC and Mr. Langhorn, which set out the chronology in detail and examined the relevant authorities relating to section 385 and also the line of authority starting with Soneji which we identify in our first judgment. The submissions were summarised as follows:- “i. The earlier Confiscation Proceedings were withdrawn by Counsel for the Prosecution on the basis of a series of errors of fact and law, namely that: a. There had not been a valid extension of the period of postponement; b. The failure to apply for such an extension of the period of postponement was fatal to the application for a Confiscation Order in that it removed the jurisdiction of the Court to make such an Order; c. There was no means of remedying the position by asking the Court to retrospectively approve the extension of the period of postponement beyond the permitted period; and d. The Court would in any event be bound to refuse the application because of failings (if they were material failings) by the Prosecution to serve a bundle on the Interested Third Parties (who had in fact only served a detailed skeleton argument raising matters of fact and law on 17 May 2023). (The correct position is that the Court was not required to look simply at the compliance of the Prosecution with the Orders made following the hearing on 24 March 2023, but the conduct of all parties throughout the proceedings, per Regina v. Halim [2017] EWCA Crim 33 {5B-41, at 1099}. This was particularly important given the delays occasioned by both the conduct of the Defendant (his failure to comply with earlier Orders) and the Interested Third Parties, who had been ordered to serve their skeleton argument and supporting material by 5 May 2023. In all the circumstances, if there was any prejudice caused by delay (which there was not) the cure would have been an Order for the costs of the hearing on 27 July 2023 rather than refusing any extension of the permitted period and period of postponement). ii. The Court erred in not considering whether it should, of its own motion, impose a Confiscation Order given the duty to do so contained within section 6(3) POCA 2002; iii. It is open to the Court under section 385 SA 2020 to vary the sentence imposed by making an Order which was not made (or applied for) when sentence was imposed, per Regina v. Menocal [1980] A.C. 598 , Regina v. Reilly [1982] Q.B. 1208 and Regina v. Miller (1991) 92 Cr. App. R. 191; iv. It would be in the interests of Justice to rescind the earlier orders and to proceed under section 6 POCA 2002 and impose a Confiscation Order; and v. The Defendant would, otherwise, obtain a windfall benefit as a result of the Prosecution and the Court’s error as to the extent of its jurisdiction to make a Confiscation Order.” 18. This document was further refined, and shortened, in a skeleton argument dated 16 August 2023. Citations from Soneji, Johal, Guraj and Ahmed were set out. It is not necessary to deal with those, in view of our conclusions in the main judgment. The hearing on 4 November 2022 was accorded somewhat greater prominence in this document, probably because the transcript of it had been obtained, along with a citation from Neish at [11]:- “Whether it was described as an adjournment or a relisting, in our judgment a decision to put the hearing back to a later date constituted a postponement.” 19. The following passage from Lord Steyn in Soneji at [27] was also not set out:- “First, lower courts have accepted that, in parallel to the statutory confiscation postponement proceedings, there exists a common law jurisdiction to adjourn confiscation proceedings. In my view section 72A(3) [the predecessor to the “exceptional circumstances” provision in section 14 of the 2002 Act] rules out such co-existing powers. I would rule that there is no such common law jurisdiction.” Section 385 Ruling 20. We pay tribute to the care and skill with which the judge addressed the position at the hearing under section 385 of the Sentencing Act 2020. He did not, of course, have the benefit of the main judgment we hand down today. 21. The Judge recorded that he was not deciding whether to make a Confiscation Order under the 2002 Act, nor whether there were grounds to extend the period of postponement of the confiscation proceedings beyond the 2 year limit under section 14. The judge then explained that he had had little time to prepare for the hearing on 27 July, but had considered the Xhibit log for 4 November 2022 and the decision in Johal while doing so. He expresses surprise that prosecuting counsel said in his witness statement that he had been instructed to apply for a further postponement if the case were not dealt with on that day. In fact, according to the transcript, prosecuting counsel had told the judge that there had been an extension of the permitted period to the hearing on 27 and 28 July, see paragraph 7 of the witness statement at [8] above, and the passage from the transcript at [10]. 22. The judge recorded that he had not chosen not to make a Confiscation Order, because the prosecution had withdrawn that application, so the only order he could now be asked to vary was the Surcharge Order. The Surcharge Order was not wrong in principle so he refused to vary that order. 23. The Judge gave further reasoning for his decision, in case “others take a different view” of the reasoning whereby he reached his decision. The prosecution appeared to argue that the prosecution cannot withdraw confiscation proceedings and a Judge was under a duty to continue the confiscation proceedings, based on section 6 of the 2002 Act. The judge did not accept this interpretation of the section. He found that the court was only under a duty to proceed under section 6 of the 2002 Act if the prosecution was asking the Court to make such a determination. If, in every such case, the court was under a duty to decide whether the defendant had a criminal lifestyle and whether he had benefitted, in what sum and to decide the recoverable amount, just in order to check whether the prosecution had made the correct decision, that would take up a vast amount of resources and surely could not have been what the Act intended. 24. Having considered Miller and Warren , the Judge was not persuaded that he had made an error, of law or fact, on 27 July 2023 and therefore, section 385 of the Sentencing Act 2020 did not apply. The prosecution had the power to withdraw confiscation proceedings and did so in this case; the court did not make a decision not to make a confiscation order. There was no clear and obvious error to remedy under the slip rule. 25. The judge held that it could not be said that all parties knew that the final hearing was being postponed to beyond the 2 year limit or that all parties were implicitly agreeing that there were exceptional circumstances that necessitated postponement beyond the 2 year limit. The prosecution misled the court as to the relevant dates in November 2022. No care had been taken at all to comply with the 2 year period, no application was made to ask the court to consider exceptional circumstances and this appeared to be the result of a systemic failure, rather than one-off mistake. Johal allowed a Judge to consider whether exceptional circumstances existed retrospectively, but here, as a result of the actions of the Crown Prosecution Service, there were no exceptional circumstances. Moreover, he held that the Recorder, if correctly informed on 4 November 2022 that the permitted period expired on 22 April 2023 would not have considered that there were exceptional circumstances. He would instead have fixed the final hearing for a date before 22 April 2023. The fact that the parties were not in fact ready by then was immaterial because people often take longer to do things if the timetable of the case allows. The judge did not therefore decide whether there were, as of 4 November 2022, exceptional circumstances to justify a postponement to 27 July. 26. The judge did not deal head on with the proposition that the proceedings had in fact been postponed to 27 July 2023, because he held that the judge who did that had been misled by the prosecution about the end date of the permitted period and thought that he was choosing a date within it. Neither did he deal with section 14(8) of the 2002 Act and the decision in Soneji that matters of this kind do not, in any event, go to the jurisdiction of the court. Grounds Of Appeal 27. The prosecution applies pursuant to section 31(2) of the 2002 Act for leave to appeal against the decision made on 15 September 2023 to refuse the application, dated 4 August 2023, made under section 385 of the Sentencing Act 2020 to rescind the order made imposing the Statutory Surcharge; and vary sentence so as to make a confiscation order in the proceedings, on these grounds:- i) It is submitted that the refusal of the application amounts to a decision not to make a confiscation order, thus conferring jurisdiction on the Court of Appeal; ii) The judge erred in refusing the application by: a) reading into the guidance given by the Court of Appeal in R v Warren [2017] EWCA Crim 226 in relation to applications under section 385 of the Sentencing Act a caveat that it applied only where the Court had made a material error of law and/or fact; and, b) adopting too narrow an approach to the question of whether there were exceptional circumstances in this case such as would permit the extension of the period of postponement beyond the permitted period. iii) There were exceptional circumstances in this case which permitted the extension of the period of postponement beyond the permitted period; iv) Instead, a technical error has been permitted to frustrate the statutory intent of Parliament that offenders be deprived of the proceeds of crime in circumstances where there was no prejudice to the defendant. Permission to appeal should be granted, the appeal allowed and the case remitted under section 32(2)(b) to the Crown Court with a direction that it proceed afresh under section 6 of the 2002 Act. Respondent’s Grounds Of Opposition 28. The respondent contends that: i) The decision of the judge was not a decision not to make a Confiscation Order. Therefore, the prosecution have no right of appeal under s31(2) of the 2002 Act. The refusal to rescind the Surcharge Order under the ‘slip rule’ is not appealable under section 31 of the 2002 Act; ii) The Judge took the right approach to the test under the ‘slip rule’; iii) The Judge adopted the correct approach to deciding whether there were exceptional circumstances. As set out in his judgment, he considered the relevant authorities. Had the court known of the correct expiry date for the postponement period, an appropriate final hearing date within that period would have been found. The delay was due to the prosecution, with no explanation. The decision was a matter of judicial discretion considering the position as a whole. Nothing exceptional was shown and the Judge made the correct decision not extend the period in the circumstances. 29. We heard very able submissions from Mr. Perry KC for the prosecution and Mr. Rudolf KC and Mr. Hone, following, on behalf of the respondent. Discussion and decision 30. In our judgment it is necessary first to examine the judge’s principal reasoning for his decision on 15 September not to rescind his decision of 27 July not to make a confiscation order. This was that he had not in fact made such a decision. As he put it, he “had no decision to make”. He held that the only decision which had been made was that of the prosecution in withdrawing the proceedings. The only decision which the judge had made was the imposition of the statutory surcharge which was obligatory in the circumstances. He could not therefore vary or rescind anything and the application failed. The rest of his reasoning was intended to deal with various submissions the prosecution had made and explained why, if they had required a decision, he would have rejected them. 31. This was a very narrow approach to the power he had under section 385 of the Sentencing Act 2020. A miscarriage of justice had occurred on 27 July 2023. No confiscation order was made in a case which was listed for hearing and in which it was agreed that a confiscation order in six figures was appropriate. The dispute was about whether that should have been in the region of £100,000 or £300,000. This was a dispute about the available amount, it being agreed that the benefit figure was very much larger than that. The judge’s conclusion on section 385 was that the court had no power to correct this miscarriage of justice because the author of it was prosecuting counsel on that day, abetted by the failure of the CPS to evidence the postponement which had been granted on 4 November 2022. 32. Whereas an appeal only lies to this court under section 31 of the 2002 Act from a decision not to make a confiscation order, section 385 of the Sentencing Act is not in such limited terms. It reads as follows:- 385 Alteration of Crown Court sentence (1) Subsection (2) applies where the Crown Court has imposed a sentence when dealing with an offender. (2) The Crown Court may vary or rescind the sentence at any time within the period of 56 days beginning with the day on which the sentence was imposed. This subsection is subject to subsections (3) and (4). (3) Subsection (2) does not apply where an appeal, or an application for leave to appeal, against that sentence has been determined. (4) The power in subsection (2) may be exercised only by— (a) the court constituted as it was when the sentence was imposed, or (b) where that court comprised one or more justices of the peace, a court so constituted except for the omission of any one or more of those justices. (5) Where a sentence is varied under this section, the sentence, as so varied, is to take effect from the beginning of the day on which it was originally imposed, unless the court directs otherwise. This is subject to subsection (6). ……. 33. It is common ground that the conduct of confiscation proceedings is part of the sentencing process for this purpose. 34. It is to be noted that the 2020 Act does not require some error of law or fact as a condition precedent of the exercise of the power. Specifically, it does not provide that if an error has occurred, there is no power to correct it because the error was that of the prosecutor. It is possible that the phrase “slip rule” suggests a more restrictive approach than the Act requires. The power was first introduced by statute on the creation of the Crown Court by section 11(2) of the Courts Act 1971. The common law power which had previously existed to vary or rescind sentences passed in the Assizes and Quarter Sessions is described in Menocal . Lord Edmund-Davies rejected a restrictive interpretation of the new power advanced by Waller LJ in Grice see page 611G-E and 612H-613A, saying:- “My Lords, giving section 11(2) the wide interpretation which I consider should be accorded to it (and with respect, not restricted to mere ‘slips of the tongue or slips of memory’), the action of the trial judge in this case would, as I think, have been entirely proper had it been done timeously. But it was not…” 35. The later decisions on this power are very often concerned with pointing out what the power should not be used for, rather than providing a gloss on the statute to define comprehensively the circumstances in which it may be used. Nothing we say here casts any doubt on any of those decisions, but they should all be read with that observation in mind. 36. That the power exists in relation to financial orders ancillary to sentence, and that the time limit is strict, was established in Menocal, Miller and Reilly . Those jurisdictional requirements were satisfied in this case. 37. That the power includes a power to increase as well as to reduce sentence was recognised in Menocal (see 612E-G per Lord Edmund-Davies) and Warren . In Warren the court examined earlier authority and elicited 6 propositions at paragraph [22]. None of those propositions state that the power cannot be used to correct an error made by the prosecution which caused the court to act otherwise than as it should. Proposition 2 starts:- “A judge should not use the slip rule simply because there is a change of mind about the nature or length of sentence but the slip rule is available where the judge is persuaded that he had made a material error in the sentencing process whether of fact or law….” 38. In our judgment this restriction is a matter of practice not jurisdiction. In restricting the availability of the power to cases where there has been an error, it appears to be in conflict with the wider interpretation favoured by Lord Edmund-Davies in Menocal , which does not appear to have been cited. It reflects good sentencing practice. There must be some finality to decision making and a judge should avoid revisiting reasonable decisions. Judges are busy people and do not have time to do every case twice. It is unkind to victims, defendants and others involved in the proceedings and disruptive to the conduct of other cases to convene post-sentencing hearings where they are unnecessary. Where, however, a judge considers that a sentence was, on reflection, wrong (not necessarily in the sense of the tests which the Court of Appeal would apply on an appeal or a reference of an unduly lenient sentence) there is no statutory limit on the freedom to change it. Particular care should be exercised before deciding that a sentence should have been more severe than it was and, in general, a judge would only do so where there was some objective basis for reaching that conclusion. That is a conclusion based on fairness and humanity, rather than on some limit to the power to be found in statute. 39. The judge also cited White (Horace) at paragraph [51] in which the Court of Appeal made some observations about the proper use of section 385 in a case where the CPS had attempted to persuade the sentencing judge to use it to impose a more severe sentence on an offender. The CPS had written a letter to the court complaining that the sentencing judge had failed to follow the proper procedure and to apply a number of authorities. The judge decided not to increase the sentence, and the scope of the section 385 power was not therefore in issue before the Court of Appeal. The observations of the court about it were entirely appropriate and designed to ensure that “such an attempt to exert pressure on a sentencing judge should not be allowed to occur again.” We echo that. However, the court did not purport to construe section 385 but was, in the passage quoted by the judge, describing how the prosecution might properly invoke it. That was to illustrate the improper approach which it had taken in that case. 40. At all events, in this case, as we have seen, there clearly were errors of both fact and law which had affected the outcome of the hearing on 27 July. 41. Prosecuting counsel referred only to Iqbal which he had just been shown, and had not fully read, as he told the judge. The judgment in Iqbal occupies 5 pages and has 28 paragraphs. It was 13 years old at 27 July 2023 and it would be a reasonable enquiry first to take the necessary 15 minutes to read it, and then to establish whether it had been doubted or followed in the meantime. A search would quickly produce T, Johal and Guraj . The “tension” between Iqbal and Soneji referred to in Johal and developed in Guraj is the subject of this observation in Blackstone’s Criminal Practice at E19.69:- “Secondly, in Guraj [2016] UKSC 65, the Supreme Court agreed (at [37]) that 'the courts will not wish to see the intention of Parliament defeated by technical points taken to stave off meritorious confiscation orders'. The decision in Guraj itself followed Knights [2005] UKHL 50, where the House of Lords held that flaws in the postponement procedure under the CJA 1988 would not invalidate a subsequent confiscation order if the judge has acted in good faith (see also Ashton [2006] EWCA Crim 794). Subsequently, in Iqbal [2010] EWCA Crim 376, the Court of Appeal held that, where there had been an order for postponement but no return date set and the confiscation application was not then revived until after the expiry of the permitted two-year period, there was no jurisdiction to proceed. The decision in Iqbal was doubted in T [2010] EWCA Crim 2703 and does not survive the decision of the Supreme Court in Guraj .” 42. Unlike prosecuting counsel, the judge had an awareness of the authorities and says in his judgment of 15 September that he had considered Johal prior to the hearing on 27 July. He also consulted Archbold where there is no equivalent observation to that in Blackstone, cited above. But in paragraph [35] of Johal Irwin J notes that “it is possible that there is some tension between the approach taken in R v. Iqbal and the approach of their Lordships in Soneji .” The court then distinguishes Iqbal on the facts and does not apply the principle to be found in it to the facts of the case before it, citing T in support of that approach. In our judgment, the judge was aware that the legal position was not as simple as prosecuting counsel appeared to think, and it was apparent that prosecuting counsel was not fully aware of the law. There was a risk that the public interest would be damaged if he was allowed to proceed without properly considering the matter. That was a risk which the judge could have avoided by declining to permit the withdrawal of the proceedings and requiring full argument on the point after counsel had had time to research the law. 43. Prosecuting counsel was not only wrong about the law, he was also not fully informed about the facts. He correctly told the court at the hearing on 27 July that the permitted period had been extended to 27 July 2023, but was unable to substantiate this when the judge asked whether there had been an application. There does not appear to have been an application, but none is necessary. The court can postpone or extend a postponement of its own motion, see section 14(7)(c) of the 2002 Act. It may be done without a hearing: CrimPR 33.13(12)(c). The order made by Mr. Recorder Waldron KC on 4 November 2022 was, as the judge correctly held on the 15 September 2023, a valid postponement of the permitted period. Mr. Recorder Waldron did not appreciate that this was what he was doing, because he had been misinformed by a different prosecuting counsel about the date when the original permitted period was to expire. Nonetheless, he made an order fixing the hearing for a date after the expiry of the permitted period, and this can only have been a postponement, see Neish and Soneji at [18] and [19] above. He did that without considering whether there were exceptional circumstances, but that was remediable, see Johal, and not in any event a failure which would deprive the court of jurisdiction. The judge, unlike counsel, had seen the Xhibit note of the hearing of the 4 November 2022, in the absence of anything on the side bar in the DCS or any memorandum or other record of the order. He had some concerns about it, which he did not share with counsel on 27 July, but which he recorded in his judgment on 15 September 2023. The matter is rendered a little unclear in retrospect by counsel’s witness statement, but on the day of the hearing it appeared that the decision of prosecuting counsel to withdraw proceedings on 27 July was taken on the basis that there had in fact been no postponement to 27/28 July 2023. Again, the position was not as clear as this and the court should not have allowed proceedings to be “withdrawn” until it had been sorted out. 44. “Withdrawal” of proceedings by the prosecution does not bring them to an end. That only occurs when the court decides not to make a confiscation order. This is the plain meaning of section 6 of the 2002 Act, and is a consequence of the duty being placed on the court. Confiscation proceedings are not civil litigation brought for the benefit of the person making the claim. They are driven by the court, acting in the public interest further to its statutory duty under section 6. Once that duty arises, there is nothing in the Act which says that it ceases if the prosecution purports to withdraw the proceedings. Of course, the court will rely heavily on the prosecution in deciding whether to make a confiscation order and in what terms it should be made, but the final responsibility is that of the court. We do not accept that Crown Court judges face an impossible burden in discharging that responsibility. It will often be entirely reasonable to rely on the prosecution. If the prosecutor decides that the continuation of confiscation proceedings is no longer justified by the evidence or the public interest, they should be able to explain why that is so quite succinctly. Where the explanation reveals that proper thought has been given and the outcome is sensible, the court will act on it and will decide not to make a confiscation order. The decision not to make a confiscation order once the court has decided to act in accordance with section 6 is always one for the court. In this case, the judge did not make a confiscation order on 27 July because he wrongly held that the withdrawal of the proceedings by the prosecution, without more, brought them to an end. That is wrong as a matter of law. In the circumstances that misdirection was a decision not to make a confiscation order. 45. On the facts of this case, the explanation given by the prosecutor for the decision to withdraw the proceedings was manifestly flawed as a matter of fact and law as we have explained. The judge should have refused to act in accordance with it and heard submissions from all sides. If he was satisfied that the proceedings had been postponed on 4 November 2022 to a two day hearing starting on 27 July 2023 he should have established whether that order was challenged on the basis that the Recorder who made it had not decided whether there were exceptional circumstances to justify the postponement after the two year permitted period. He should then have decided whether it was arguable that this failure deprived the court of jurisdiction unless remedied. If so, the judge should have applied Johal and the broad view of “exceptional circumstances” required by Soneji , see the main judgment. The late arrival into already complex proceedings of two third parties whose fair trial rights had to be protected by the court when proceeding under section 10A of the 2002 Act was an exceptional circumstance. In fact, Mr. Recorder Waldron fixed the first date for the hearing which the court offered which was convenient to the parties. It is well known that waiting times in the Crown Court for 2 day fixtures where custody time limits do not apply are very long, given the exceptional circumstances which have contributed to the current backlog. As events were to show, the preparation for hearings of this kind takes longer than perhaps it should, see the respondent’s application for an extension of time made on 29 April 2023 at [5](xi) above. For all these reasons there clearly were exceptional circumstances which justified fixing the hearing for 27/28 July 2023 and granting the necessary extended postponement. The judge was plainly wrong to find otherwise. He was exercised by various failures by the prosecution, but none of these was the cause of the decision of the court in November 2022 to fix the hearing for 27 July 2023. 46. On 15 September the judge had knowledge of all relevant facts and significant assistance from new counsel to deal with the law. He should have concluded that his decision (for that is what it was) not to make a confiscation order on 27 July should be rescinded and he should have granted a further postponement to a fixed hearing date, and given any necessary directions. 47. However, the matter does not end quite there. This is a prosecutor’s appeal under section 31(2) of the 2002 Act. Such an appeal only lies against a decision not to make a confiscation order. That decision was taken on 27 July and not 15 September. We do not consider that section 31(2) gives the prosecutor a right of appeal against a decision under section 385 of the Sentencing Act 2020. Accordingly, the appeal as advanced cannot succeed. In a footnote to the Application for Permission to Appeal, the prosecution contemplated this possibility. They said:- “If the Court of Appeal concludes the Learned Judge erred, and had decided not to make a confiscation order on 27 July 2023 an application is made to extend the time permitted for the lodging of this application. The reason it has been served at this time is the Prosecution first invited the Court to reconsider the matter pursuant to section 385 SA 2020 (the “slip rule” ) as it considered that was the appropriate course where the reason no order was made was because the Court was in error as to whether there had been a valid extension of the period of postponement which could then be corrected by a finding of exceptional circumstances.” 48. The court floated in argument the possibility of allowing an amendment to the appeal to challenge the decision of 27 July 2023 and Mr. Perry KC said that he would seek to proceed that way if we decided in the way explained in this paragraph, and relied on this footnote. This would require an extension of time. It was common ground that he usual principles for the grant of such extensions apply. In this case, the appeal as so formulated has strong merits and allowing it to be advanced out of time would cause no prejudice to the respondent or the interested parties. The issues have been fully argued before us and no further delay is involved. Whether the judge took a decision on 27 July and, if so, whether that decision was obviously wrong, are questions which have been central to the appeal as formulated and we have received full submissions on them from both parties to the appeal. 49. It would not be in the interests of justice for the prosecution to fail in its appeal because of the way it formulated its challenge when the substance of that challenge is meritorious. A great deal of public time and money has been invested in these proceedings and it is in the public interest that they should be brought to a conclusion on the merits. 50. It would have been prudent for the prosecution to appeal against the decision of the 27 July as well as making its application under section 385. That application should, as we have held, succeeded and if so it would have rendered pursuit of the appeal unnecessary. If it had failed, as it did, then a further challenge could have been added to the appeal at that stage, if so advised. 51. Accordingly, we grant:- i) leave to amend the Notice of Appeal to challenge the decision not to make a confiscation order made on 27 July 2023; ii) the necessary extension of time; iii) leave to appeal in respect of the new challenge now permitted. 52. For the reasons which we have set out in full above, we are satisfied that the judge erred in principle and on the particular facts of the case in deciding that because the prosecution withdrew the proceedings he “had no decision to make”. This conclusion was a decision not to make a confiscation order and the appeal as now formulated is allowed. The Crown Court will be directed to proceed afresh, which in this case means that there should be a review hearing in which the court will proceed as the judge should have done on either 27 July or 15 September 2023. This must be fixed within 28 days of the handing down of this judgment. A hearing date will then be fixed, an extension of the permitted period will be granted to that date, and any further necessary directions will be given. Whether or not the circumstances of this case were exceptional before, they certainly are now. 53. We have no jurisdiction to set aside the statutory surcharge order made on 27 July 2023. The judge should have done that on 15 September but no appeal lies against that decision. There has been no appeal against the surcharge by the respondent. It ought not to have been made in the first place because of section 15(2)(ca) of the 2002 Act. Its continued existence does not obstruct the continuation of the confiscation proceedings. Blackstone at E19.68 deals with the matter in this way:- “….a postponed confiscation order is not invalidated simply by the making of such orders beforehand ( Guraj [2016] UKSC 65, and see Sachan [2018] EWCA Crim 2592, where the order erroneously imposed during the period of postponement was a compensation order which did not invalidate the subsequent confiscation order, and likewise Bristowe [2019] EWCA Crim 2005, which concerned a 'victim surcharge').” 54. The significance of the making of a financial order within section 15(2) of the 2002 Act before the confiscation order is made is that section 14(11) is disapplied by section 14(12) of the Act. The impact of that is explained by Guraj which on this issue is binding on us. A confiscation order made after the Crown Court proceeds afresh in compliance with the directions of this court will not be liable to be quashed because of any defect or omission in the procedure connected with the application for or the granting of a postponement.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/340/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/340

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[2023] EWCA Crim 778

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation No: [2023] EWCA Crim 778 CASE NO: 202300485/A2 Royal Courts of Justice Strand London WC2A 2LL Thursday 22 June 2023 Before: LORD JUSTICE LEWIS MR JUSTICE MORRIS SIR NIGEL DAVIS REX V ARTHUR McDONAGH __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MR S POULIER appeared on behalf of the Applicant _________ J U D G M E N T LORD JUSTICE LEWIS: 1. On 2 February 2023 in the Crown Court at Leicester, the applicant, Arthur McDonagh, who is now aged 37, pleaded guilty to an offence of using threatening and abusive words or behaviour with intent to cause fear of violence. He was sentenced to two months' imprisonment suspended for 12 months. 2. The facts can be stated briefly. The complainant, Mr Saeed Dizaei, is a gas engineer and has worked as an engineer since about 2009. On 28 November 2020, as arranged, Mr Dizaei went to the applicant's home and fitted a gas hob. The cost of the work had been agreed at £95. Mr Dizaei, having fitted the hob, was not paid by the applicant. The applicant asked him to come back later, which Mr Dizaei agreed to do. 3. Later on the victim received a text message from the applicant saying that the applicant would pay online and asking for Mr Dizaei's bank details. The payment never arrived. Mr Dizaei chased it on 29 November. The applicant said he would make payment but by the afternoon of 30 November nothing had been received and there was no response to text messages or telephone calls to the applicant. 4. As a result of that, shortly after 5.30 pm on 30 November Mr Dizaei went to the applicant's address to find out when he could expect to be paid for the work he had already done. The applicant signalled through the window that the victim should go round to the back of the property, which he did. There was at that stage two children present in the house looking out of the window. 5. The applicant opened the door and stood in the doorway. Mr Dizaei said that he had come because he had tried contacting the applicant and wanted to know what was happening about payment. The applicant initially said that his wife had already paid. The victim showed the applicant his bank account on his mobile phone and said no, he had not been paid. 6. The applicant then became aggressive. He called Mr Dizaei a fraud and accused him of not being a gas engineer. He told him to get out of his house -- although Mr Dizaei was not inside the house. The victim remained calm and handed the applicant his gas engineer safety card. The applicant threw it on the floor, telling him it was a fake. Mr Dizaei picked it up. The applicant picked up an axe. He shouted for Mr Dizaei to get off his property. Mr Dizaei ran from the garden to the road. The applicant came down the driveway behind him, waving the axe and threatening him with it. He then started to close the gate at the end of the driveway. 7. Mr Dizaei described himself as feeling petrified by the incident but he was able to take a couple of very short video clips of the applicant holding the axe. They showed Mr Dizaei asking about payment and the applicant telling Mr Dizaei to "fuck off" before turning back and walking up his driveway. Mr Dizaei called the police. 8. The applicant was arrested on 12 December 2020. The axe was seized from his garage. In interview the applicant denied any threatening behaviour, denied having the axe and he denied any abuse. He said that the argument occurred because Mr Dizaei had not done a good job. 9. The applicant was initially charged with an offence of racially aggravated behaviour with intent to cause fear of violence. On the day of the hearing in the Crown Court the applicant was re-arraigned and charged with the lesser offence of using threatening words or behaviour with intent to cause a fear of violence, contrary to section 4 of the Public Order Act 1986 . He pleaded guilty to that offence. 10. In his sentencing remarks, the judge said that the victim did the work in good faith and trusted the applicant to pay him. The applicant then produced an axe and chased him off the premises. That had an affect on the victim and affected his trust in people and caused him to be worried. The applicant had threatened violence to a person providing a service to the public. There were children in the house who would be able to watch the events. The judge considered that the custody threshold had been passed and imposed a sentence of two months' imprisonment. He considered however that could be suspended for 12 months. He ordered the applicant to pay £95 compensation and £600 costs. 11. Mr Poulier, in his written and oral submissions on behalf of the applicant, submitted that the judge had not referred to the relevant Sentencing Council guidelines for this offence and he had not sought assistance on the guidelines. Mr Poulier submitted that had the judge done so the offence would have been treated as Category A in terms of culpability because of the production of a weapon but it would be Category 2 in terms of harm. Mr Poulier submitted that no reference was made to any reduction for a guilty plea. In the circumstances, Mr Poulier submitted that a sentence of two months' imprisonment was manifestly excessive. 12. The sentencing judge's remarks were brief. It would have been preferable if he had referred specifically to the relevant guidelines and explained the sentence by reference to those guidelines. Further, it would have been preferable to identify the amount of reduction of the sentence for the guilty plea. It is right to note however that the judge stated specifically that the offence crossed the custody threshold. He identified relevant factors under the guidelines - the production of the weapon and the fact that the victim feared violence. He also identified two aggravating factors, namely that the victim was providing a service to the public and there were children present in the house. 13. In the circumstances, having regard to the guidelines, the sentence is not manifestly excessive. This was a Category A offence involving high culpability because of the production of a weapon, namely the axe. The harm was Category 1 within the guideline. The victim clearly feared serious violence. Indeed, given that the applicant was waving an axe at him, it is hard to see what else he could have feared. The starting point for such an offence is a high level community order and the range is up to 26 weeks' custody. Even if the harm had been categorised as Category 2 the range would be up to 12 weeks' custody. There was at least one aggravating factor - the fact that the victim was providing a service. There was in fact in our judgment a second aggravating factor as there were children present observing at least part of this event. But for present purposes we proceed on the purpose that there was one aggravating factor only, the fact that the victim was providing a service to the public. 14. The applicant has four previous convictions involving several offences, mainly for theft and the last was in 2015. Those convictions were not a matter which aggravated this offence materially but nor would it be right to treat him as a man with no previous convictions. 15. In all the circumstances, a sentence before the reduction for the guilty plea in the region of 10 to 12 weeks' custody would fall well within the range for a Category 1A offence and indeed it would be within the range for a Category 2 offence. Given that the applicant pleaded guilty on the day and had not previously indicated a willingness to plead guilty to this offence, he would only have been entitled to a reduction of 10 per cent. In those circumstances a sentence of two months' imprisonment suspended for 12 months is proportionate and justified. It is not arguably manifestly excessive. Indeed, given the circumstances of this offence, involving threatening a person with an axe, the appellant could not have complained if he had been subjected to a longer sentence and if he had been subjected to immediate custody. 16. In those circumstances, this application for leave to appeal against sentence is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2023_06_22-5719.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/778/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/778

b320bf0f4fe073004a1081ca2efa0d63b1ba451dc843ab374d647f65dc13399b

[2011] EWCA Crim 870

EWCA_Crim_870

supreme_court

Case No: 201003898 C2 Neutral Citation Number: [2011] EWCA Crim 870 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/04/2011 Before: LORD JUSTICE ELIAS MR JUSTICE MACKAY and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - MOHAMMED RAKIB - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Alison Scott-Jones on behalf of the Crown Stephen Leake o

Case No: 201003898 C2 Neutral Citation Number: [2011] EWCA Crim 870 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/04/2011 Before: LORD JUSTICE ELIAS MR JUSTICE MACKAY and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - MOHAMMED RAKIB - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Alison Scott-Jones on behalf of the Crown Stephen Leake on behalf of the Defendant Hearing date: 25 March 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Hickinbottom : The Facts 1. On a morning in late September or early October 2008, at about 8 o’clock, the complainant B, then aged 17 years, was walking to college along Broadway West, Walsall, when she heard music coming from an area of bushes by the footpath. Her attention drawn by the music, she turned and saw a man standing there, in the bushes, with his trousers and boxer shorts round his ankles. It was daylight, and she had an unobstructed view of him. She saw him masturbating his naked erect penis with his left hand. She turned away, and continued to walk to college. When she got home later that day, she told her mother what she had seen, but did not contact the police at that stage. 2. However, on 3 November 2008, at about the same time of day, she was again walking to college following the same route. She again heard music, and turned to see the same man, standing in the same location as before. She looked him in the face, before walking off. On this second occasion, she did not look towards his genitals: but, from the motion of his arm, which she did see, she said he was “doing the same thing”. She could see his left arm making motions as if he were masturbating. 3. Following the second incident, she made a complaint to the police, giving a description of the man and his clothing, which had been the same on both occasions. She assisted the police in compiling an e-fit image of the man, and the appellant Mohammed Rakib was arrested on 24 November 2008. The following day, the complainant attended a police identification procedure, and she identified the appellant as the man who had exposed himself to her. The day after that (26 November 2008), he appeared before the Walsall Magistrates, and was sent to the Crown Court for trial on two charges: one emanating from the first alleged exposure to B, and the second an unrelated charge of serious sexual assault of someone else. In relation to the first charge, the Crown relied upon evidence of the second alleged incident involving B in November 2008, but no separate charge was preferred in relation to that incident at that stage. No doubt due to the seriousness of the sexual assault charge, he was remanded in custody in relation to both charges until they came to be tried on 18 May 2009, a total of 173 days on remand. 4. However, on the first day of trial, the judge considered that the counts were misjoined, and that indictment was stayed. A new indictment was immediately preferred, restricted to the sexual assault. The appellant was tried on that, and acquitted. 5. A further indictment was also preferred, with two counts, in respect of both of which B was the complainant, the counts covering the September/October exposure and the November exposure respectively. At a trial in the Crown Court at Wolverhampton (His Honour Judge Walsh and jury) on 14 June 2010, the appellant was convicted of both counts that, contrary to section 66(1) of the Sexual Offences Act 2003 , he exposed his genitals intending that someone would see them and be caused alarm or distress. 6. On 6 July 2010, Judge Walsh sentenced him in respect of each conviction to a community order with a three year supervision requirement and a programme requirement to attend sex offending assessment, psychological testing and treatment, with the appropriate notification requirements. He was also required to pay prosecution costs in the sum of £2,800 at £500 per month. 7. Now, with the leave of the single judge, he appeals against conviction, sentence and the costs order. The Appeal against Conviction 8. In relation to conviction, the two grounds of appeal presented to us on behalf of the appellant by Mr Leake were admirably focused. 9. First, he submitted that the judge erred by ruling against his submission at the close of the prosecution case that the count relating to the second incident ought to be withdrawn from the jury, because there was no safe basis on which the jury could conclude that there was an exposure of the appellant’s penis on that occasion. The offence of course requires such exposure. The complainant, B, did not suggest that she actually saw his penis on the second occasion. In those circumstances, Mr Leake submitted that the jury could not safely conclude that his penis was exposed, merely because the complainant had said that his left hand was moving in the same way as the first occasion, as if he were masturbating. The appellant could, for example, he submitted, have been masturbating under his clothing without exposing his private parts, or may have simply been engaged in some preparatory acts without any exposure. Given that the hand movements which the complainant said she saw would be consistent with those possibilities, the jury could not safely conclude that the appellant had exposed himself on the second occasion: and the second count ought to have been withdrawn from the jury. 10. In his second ground, Mr Leake submitted that the judge was wrong to direct the jury to the effect that they were entitled to take into account that there had been exposure of the penis during the first incident when deciding whether they were sure that there had been exposure during the second. In substance, as Mr Leake accepted, this was really a recasting of ground one. 11. The correct approach to a submission of no case to answer is well-settled: the test is whether a reasonable jury, properly directed and after considering all the evidence with appropriate care and scrutiny, could properly convict. A case should not be withdrawn from a jury simply because another view of the evidence, consistent with innocence, might possibly be taken. It is for the jury to consider possible legitimate interpretations of the evidence and decide whether, on the evidence, they are satisfied so they are sure that all the elements of the relevant offence have been made good. 12. In this case, there was no serious suggestion that B was mistaken in saying that the man she saw on each of the two occasions was the same man: the appellant simply denied that that man was he. He denied presence on the occasion of either offence, and asserted that the complainant was mistaken in her identification of him as the offender. By their verdicts, the jury, properly directed as to identification, were clearly satisfied that the man in the bushes, on each occasion, was the appellant: and no challenge to the safety of the verdicts is made on that score. Indeed, the appellant now accepts that he was indeed that man. 13. The other primary issue for the jury to consider was whether they were sure that, on the second occasion, the appellant exposed himself, as the offence required. Particularly given his case of non-presence, that issue relied exclusively upon the evidence of the complainant B. The jury found the appellant guilty on count 1: and it is implicit in that verdict that they were satisfied that, on that first occasion, the appellant was masturbating his exposed penis, with music playing, with the intent that someone should be attracted to see him, and with the intent that alarm and/or distress should be caused thereby. That was patently relevant to the issue as to whether he was exposing himself on the second occasion. 14. With respect to Mr Leake, we do not consider this to be a Chopra case, in which the prosecution rely upon the evidence of various matters mutually to support each other ( Chopra [2006] EWCA Crim 2133 ; [2007] 1 Cr App R 16 ). This was a simpler case. If the jury were satisfied that the appellant exposed himself and committed the offence in count 1, then, clearly, that was a matter they could take into account when they considered whether they were satisfied that he exposed himself on the second occasion. The prosecution case was that, if the jury were satisfied on count 1, the circumstances and modus operandi of count 2 were so very similar – location, music to attract attention and hand movement – that they could be sure that he was doing the same as he was on the first occasion, including the exposure. 15. Whilst positive findings against the appellant as to exposure on count 1 may well have fallen within the definition of “bad character” within section 98 of the Criminal Justice Act 2003 , this was not a case in which any deep consideration or complex direction was necessary or indeed appropriate. Such evidence was patently admissible under section 101(1)(d): and it was for the judge to ensure that it was dealt with properly, fairly and economically. 16. Therefore, with regard to the first ground, it was, in our view, quite clearly open to the jury properly directed, on the basis of the similarity of arm movements that the complainant saw, in the similar circumstances in which she saw them, to be satisfied that, on the second occasion, the appellant was masturbating his naked penis. Simply because the circumstantial evidence was such that there may possibly have been another, innocent interpretation does not mean that the matter had to be withdrawn from the jury; and in our judgment it would have been plainly inappropriate for the judge to have withdrawn it. Whether the appellant was exposing himself was especially a matter for the jury to consider and decide, on all of the evidence. 17. Turning to the second ground, in that task, the jury were, in our judgment, properly directed. The judge made the burden and standard of proof clear, and was clear that the jury could not convict of count 2 unless they were sure that the appellant was exposing his penis at the relevant time (see, e.g. transcript page 4H-5A, and page 5D-E). 18. The jury were obviously sensitive to the fact that this issue was central to their consideration of count 2, and sent a note to the judge after they had retired, in the following terms: “Could you please clarify the legal position and implications for count 2, using the offence of exposure, intent to expose genitals? So do we need to give the benefit of the doubt and come to the conclusion of not guilty for count 2 due to [B] not clearly stating that she saw his genitals exposed?”. 19. With the jury out, there was the following exchange between the judge and Mr Leake (transcript page 18B-G): “Judge Walsh: It is implicit in the [jury] note that they are satisfied so that they are sure about the accuracy of identification. It seems to me that they must be directed that they are satisfied so that they are sure that there was exposure of the genitals. The fact that [B] did not see the genitals is a factor that they must bear in mind and consider and the question for them to consider is whether they are satisfied so that they are sure that the hand motions that they say they saw him perform were hand motions at a time when his genitals were exposed. It seems to me that they are entitled also, are they not, to take into account what view they form about count 1. Mr Leake: Yes. Well, perhaps Your Honour would remind them of course of it she only saw him – and her evidence in relation to that was that she looked into his eyes for one or two seconds. In relation to count 2 – Judge Walsh: Yes, but the point I am making is this; that if they were satisfied so that they were sure in respect of count 1, then his conduct, found by them to be conduct which he committed, is something that they can take into account in determining what he was doing on the second occasion. Mr Leake: Yes. Judge Walsh: But they must be satisfied so that they are sure that the genitals were exposed. Mr Leake: Yes…. ” 20. In that passage, Mr Leake appears to have been agreeing with the judge’s propositions and approach. Before us, he said he did not intend to assent, but was merely expressing understanding following the earlier rejection of the submission of no case to answer. Be that as it may, we consider the judge’s approach to how the jury could and should take into account any exposure they found in relation to count 1, when considering exposure in count 2, was unimpeachible. 21. The judge had already given a full direction in relation to the similarities between the two episodes, and how the jury could take into account findings in relation to the second occasion when they were considering the second incident (transcript page 4C and following). Following the discussion with Counsel to which we have referred, he gave the following further direction to the jury, in response to their query (transcript page 19F-20G): “… I am going to remind you of what the position is so far as count 2 is concerned. In order to convict of count 2 you would have to be satisfied that there was intentional exposure by the defendant of his genitals intending that someone, in this case the young complainant, would see them and be caused alarm or distress. So you would have to be satisfied, before you could convict of count 2, that there was an intentional and deliberate exposure of the genitals.” He then reminded the jury of the relevant evidence of B. He continued: “But the point was made by Mr Leake on behalf of the defendant during the course of his closing address that she had not seen his exposed genitals and that therefore there was doubt as to whether in fact the man who it was had his genitals exposed at that time. He might have been doing something other than exposing his genitals…. …[T]he point made by Mr Leake on behalf of the defendant during the course of his closing address [was] that she had not seen his exposed genitals and that therefore there was doubt as to whether in fact the man who it was had his genitals exposed at that time. He might have been doing something other than exposing his genitals. The Crown say using your common sense you can come to the conclusion that if it was the same man and he had been masturbating in the same spot on the first occasion when music was being played at that time, you can come to a common sense conclusion that exactly the same thing was happening on the second occasion because of the coincidence in time, location, the same person, music being played and the same hand motion being seen by the young girl. The Crown say you can come to the conclusion that the genitals were exposed on the same occasion. Whether you come to that conclusion is a matter entirely for you because it is your assessment of the evidence that counts in this particular case. ” 22. When taken with the other directions given by the judge in his summing up, we consider those directions to be, at the very least, adequate. They directed the jury to the precise point to which findings in relation to count 1 went in relation to count 2. The episodes were so similar that the jury were entitled to find that it would be beyond coincidence if the appellant was not doing what he was doing on the first occasion, i.e. masturbating his naked penis. No further, or more complex direction, was required. 23. For those reasons, in relation to conviction, we do not consider either ground made out, nor do we consider the verdicts are in any way unsafe. The Appeal against Sentence 24. Turning to sentence, we consider Mr Leake’s submissions had far more force, the appeal raising a common and important issue in relation to the proper approach of a sentencer where he considers the most appropriate sentence is a community order, but the offender has already spent time on remand pending his trial. 25. The issue arose in this case in the following way. In relation to recommendations for sentence, the pre-sentence report was refreshingly clear and unequivocal. The author considered that the appellant had considerable thinking and behaviour problems, particularly with regard to his attitude towards women: her view was that the appellant’s inappropriate behaviour would not stop, unless and until he had appropriate treatment. Such treatment would take three years, and therefore required an order involving supervision lasting at least three years with a requirement to attend the relevant testing, assessment and treatment courses. Without such treatment, the author of the report said that, in her opinion, the appellant “will continue to offend”. Although the report also accepted that these offences passed the custody threshold, with the benefit of that opinion it is obvious why the judge saw the wisdom of a three year community order, requiring the appellant to attend the treatment that he needs. Such an order would have considerable potential benefits for both the appellant, and the public at large. 26. However, prior to his trial, the appellant had spent 173 days on remand in custody, i.e. nearly 6 months. Mr Leake submitted that, given that in respect of any sentence of imprisonment an offender serves half in custody and the rest on licence, that period spent on remand is the equivalent of an 11-12 month prison sentence. Had the appellant been sentenced to an immediate term of imprisonment, he would have been entitled to a direction that the time he had served on remand would count as time spent by him in custody as part of that sentence ( section 240 of the Criminal Justice Act 2003) . In those circumstances, Mr Leake submitted that it was wrong in principle to have imposed on the appellant the three year community order that was imposed, or indeed any sentence with any further element of punishment. A community order of course does impose significant restrictions on an offender and, if he breaches the order, then he is liable to be punished for the breach. He submitted that, where an offender has served in custody the equivalent of a sentence of imprisonment greater than that which could properly be imposed for the particular offence in the circumstances in which that offender committed it, it is wrong in principle to impose any sentence with any further punitive element. 27. That submission was forcefully made. It was strongly reliant upon the mandatory wording of section 240 : by section 240(3) and (4)(b), a court must make a direction that days spent in remand for an offence will count towards a sentence of imprisonment imposed, unless the court considers it just in all the circumstances not to make a direction. 28. Mr Leake also relied upon the judgment of this court (Underhill and Griffith Williams JJ) in Hemmings [2007] EWCA Crim 2413 ; [2008] 1 Cr App R (S) 623. In that case, the appellant had spent 99 days on remand, and then pleaded guilty to offences of battery and criminal damage, to which he was sentenced to an 18 month community order with a requirement for attendance at a domestic violence programme. The days spent on remand were the equivalent to a 6 month sentence, and it was uncontentious that no longer term of imprisonment could possibly have been properly imposed for these offences. In those circumstances, it was submitted that it would be wrong in principle to impose any further punishment. The court agreed. Underhill J, giving the judgment of the court said this (at paragraph 6): “We understand, and to a considerable extent sympathise with, the judge’s reasoning. It was no doubt the case that both the appellant and the wider community were likely to benefit if [the appellant] had been obliged to undergo a period of supervision and take the course proposed. Nevertheless it seems to us that the order is wrong in principle. A sentence of a community order, and all the more so one coupled with requirements which have a real impact on the offender’s liberty, is a form of punishment. It does not seem to us to be right that the appellant should receive a substantial further punishment in circumstances where he has already received what was in practice the maximum punishment by way of imprisonment which the law could have imposed.” 29. The court considered that reasoning to be in line with the reasoning in cases such as McCabe (1988) 10 Cr App R (S) 134 and Peppard (1990) 12 Cr App R (S) 88 (to which now could be added Barrett [2010] EWCA Crim 365 ; [2010] Cr App R (S) 86), in which different constitutions of this court have deprecated the passing of a suspended sentence on an offender who has already served on remand a period equivalent to the suspended term. The court in Hemmings consequently felt obliged to allow the appeal, and substitute a conditional discharge expiring immediately for the community order imposed by the sentencing judge. 30. That submission is powerful, and supported by the authority to which we have referred. Although each case of course turns on its own facts, so far as relevant, Hemmings does appear to be substantially similar to the appeal before us. However, the result in that case appears to us (as it seems to have appeared to the constitution of this court which sat on Hemmings itself) to be somewhat counter-intuitive: and, in our view, the analysis is flawed, for the following reasons. 31. The foundation of any sentence is section 142(1) of the Criminal Justice Act 2003 , which sets out the purposes of sentencing, and an approach to sentencing that is mandated. It provides: “Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing – (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences. 32. This section makes clear that, whilst the punishment of an offender is one purpose of any sentence, it is not the only purpose. The rehabilitation of offenders and protection of the public are other purposes, to which any judge must have regard when considering any sentence. 33. Section 240 of the 2003 Act, despite its somewhat lengthy provisions, has behind it a straightforward and uncontentious principle, namely that where an offender is sentenced to a custodial term for an offence, then time already spent in custody in relation to that offence (or a related offence) should count towards that term. It sets off time spent in custody in respect of an offence against the time in custody that a court considers appropriate for a conviction in respect of that offence. Such set off is simple and, as we have said, usually an entitlement. 34. That principle is, of course, directly relevant when a court is considering imposing a sentence, and then suspending it. The purpose of such a suspension is to enable an offender, if he complies with the terms of the order and does not commit further offences, not to serve the custodial term that would otherwise be appropriate for the offence. If he has already served such a term on remand, the whole rationale of suspension vanishes. We respectfully agree with the principle in cases such as Barrett that, in those circumstances, it will usually be wrong to impose a suspended sentence at all. 35. That, it seems to us, is clear as a matter of principle, and from the provisions of the statutory scheme. Section 240(7) of and paragraph 8(2) of schedule 12 to the 2003 Act provide that, for the purposes of section 240 , a suspended sentence is to be treated as a sentence of imprisonment when activated, not imposed: in other words, a section 240 direction should be given at the time of activation not imposition. Unless it is unjust not to give a direction, then, as we have indicated, such credit must be given ( section 240(3) and (4)). If the direction would necessarily mean that, when activated, the entire sentence term would be swallowed up by such credited period on remand, then imposing such a suspended sentence becomes an empty exercise. We consequently agree that the imposition of a suspended sentence in those circumstances is usually to be deprecated. 36. However, in our judgment, when the court is considering a non-custodial sentence, the position is different. First, it is different as a matter of principle. Section 240 is dealing simply with the setting off different periods of custody for the same offence against one another. When a court is considering imposing a community order on an offender who has already served a period in custody on remand, it has to consider, not only the punishment of the offender (including, of course, the punishment he has already undergone by virtue of his period on remand), but also the rehabilitation of the offender and the protection of the public. That is a requirement of section 142 of the 2003 Act. What is therefore required is the weighing of any period spent on remand with the various elements of the potential community order being considered, including both punitive and rehabilitative elements of such an order – a far more difficult exercise than that envisaged by section 240 37. That is why, although the section 240 requirement to set periods of custody off against one another is in mandatory terms, where an offender has served a significant period on remand but, in the light of its duty under section 142 , a court considers a community order appropriate, the period spent on remand is not and cannot be (as Hemmings suggests) a necessarily determinative factor in deciding what the appropriate sentence is. Section 149 of the 2003 Act recognises that. It provides: “In determining the restrictions on liberty to be imposed by a community order or any youth community order in respect of an offence, the court may have regard to any period for which the offender has been remanded in custody in connection with the offence or any other offence the charge for which was founded on the same facts or evidence.” (emphasis added). Whilst the wording of section 149 is otherwise similar to that in section 240 , we do not consider that the difference in wording – section 149 giving the court a power, section 240 imposing an obligation to take periods of remand into account – is mere coincidence. In our judgment, it is a clear indication that, in line with the general requirements it imposes on sentencers in section 142 , Parliament intended there to be a different approach when, in respect of an offender who has served time on remand, a sentencing judge is considering a community order from when he is considering a sentence of imprisonment. 38. Although section 149 is in terms of “may have regard to” such periods on remand, we have no doubt that, when considering a community order, a sentencing judge should usually have regard to such periods. In some cases, the fact that an offender has served a significant time on remand may be sufficient for a court to consider that no further punishment is required, and nothing further (in terms of a community order, for example) would be appropriate. But, even when an offender has served time on remand at least equivalent to the maximum custodial term that could properly be imposed for that offence, in our view, the 2003 Act gives the sentencer a discretion to impose a community order, even if that order includes substantial restrictions. The value of such an order, in terms of the rehabilitation of the offender and/or protection of the public, may yet make such an order an appropriate sentence. That may particularly be so where there are great potential benefits for an offender himself, and for the public, in the offender obtaining the support, training or courses that may form part of a community order. 39. There is further support for our construction of the statutory provisions, in the guidelines issued by the Sentencing Guidelines Council. Whilst such guidelines do not of course have statutory effect, by section 172 of the 2003 Act, a court must have regard to definitive guidelines when it imposes any sentence. 40. Paragraph 1.1.38 of the Definitive Guideline on “Overarching Principles: Seriousness” indicates that a community order may be appropriate where a custodial sentence would involve immediate release: “Where an offender has spent a period of time in custody on remand, there will be occasions where a custodial sentence is warranted but the length of the sentence justified by the seriousness of the offence would mean that the offender would be released immediately. Under the present framework, it may be more appropriate to pass a community sentence since that will ensure supervision on release.” Annex 2 of that guideline recognises the difficulty in giving credit for time on remand in relation to the rehabilitative (as opposed to the punitive) elements of a community order, to which we have alluded, and says: “Where an offender has been kept on remand, one could take the view that this action was justified by the bail provisions and that the sentencer should not, therefore, feel obliged to adjust the terms of the community sentence. However, in principle, the Panel recommends that the court should seek to give credit for time spent on remand in all cases and should explain its reasons for not doing so when it considers either that this is not justified, would not be practical, or would not be in the best interests of the offender.” With those guidelines, we respectfully agree. They reflect the true construction of the statutory provisions, as we see it. 41. Section 149 does not appear to have been referred to the constitution of this court that heard Hemmings . We have no doubt that, had it been, that court would have approached that appeal differently. We have already noted the apparent reluctance with which the court allowed the appeal, and replaced an order with patent benefits for both the appellant and the public with one without any such benefits. 42. Applying what we believe to be the appropriate approach to this case, we note that, although the judge referred to the Sentencing Guidelines Council’s guidelines, he appears to have been referring to those relevant to the particular offence rather than the manner in which time spent on remand ought to be approached: and, of course, the judge did not expressly refer to the number of days that the appellant had spent on remand. Although we consider it would have been better, in terms of transparency, if the judge had expressly explained how he had approached and dealt with such time, under section 149, for the reasons we have given, he was not strictly bound to do so by the terms of the 2003 Act. In any event, given the obvious and substantial advantages in terms of the rehabilitation of the appellant and the protection of the public – helpfully, clearly and firmly set out in the pre-sentence report, which clearly informed the judge’s sentencing decision – we do not consider that the sentence he imposed is arguably wrong in principle or manifestly excessive. Indeed, we consider the sentence to have been principled and wise. We are comforted, but not surprised, that the statutory scheme allowed for such a sentence in the circumstances of this case, which cried out for a sentence of this supportive kind. 43. For those reasons, we dismiss the appeal against sentence. The Appeal against the Costs Order 44. Finally, we turn to costs. The appellant of course chose to defend the charges brought against him, in the Crown Court, on the basis that the complainant had identified the wrong man. He now, following conviction, accepts that he was the man who exposed himself to her. We understand that the appellant is in employment, and earns nearly £15,000 per year. He has no dependents. His housing costs and other financial commitments are relatively small. In those circumstances, usually, we would have had no difficulty in considering a costs order in the sum made (£2,800 at £500 per month) to be correct in principle, just and wholly reasonable. 45. However, although there is no necessary correlation between sentence and an order for costs, in this case we consider that it was incumbent upon the judge, when assessing whether a costs order was just and reasonable for the purposes of section 18(1) of the Prosecution of Offenders Act 1985, to take into account the time the appellant spent on remand, over and above his eventual community order. During that not inconsiderable period, he was of course unable to earn. The judge does not appear to have taken this factor into account when he made the costs order. 46. In all of the unusual circumstances of this case, we are persuaded that the order for costs was wrong in principle. We consequently allow the appeal in respect of the costs order, but only to that extent. Conclusion 47. For the reasons we have given, we dismiss the appeals against conviction and sentence, but allow the appeal against the costs order which we quash.

2011_04_01-2689.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/870/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/870

d3411ec2a00f51862c3bc5ce510e3e2fd11fbbd4df0e37e0ad44a0cf31a00b92

[2018] EWCA Crim 499

EWCA_Crim_499

crown_court

No: 201701826 A2 Neutral Citation Number: [2018] EWCA Crim 499 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 16 January 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE JULIAN KNOWLES SIR RODERICK EVANS - - - - - - - - - - - - - - - - - - R E G I N A v MALCOLM NIGEL HIGH - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 740

No: 201701826 A2 Neutral Citation Number: [2018] EWCA Crim 499 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 16 January 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE JULIAN KNOWLES SIR RODERICK EVANS - - - - - - - - - - - - - - - - - - R E G I N A v MALCOLM NIGEL HIGH - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. LORD JUSTICE SIMON: THIS IS NOT INTENTIONALLY LEFT BLANK 1. This appeal, for which leave was given by the single judge with an extension of time, involves a very short point. 2. The appellant had pleaded guilty at the Crown Court in Maidstone to two counts of distributing indecent photographs of children contrary to section 1(1)(b) of the Protection of Children Act 1978, and two counts of arranging or facilitating the commission of a child sex offence contrary to section 14(1) of the Sexual Offences Act 2003. 3. The issue relates to the two concurrent sentences passed in respect of the section 14 offences on 21 August 2015. The sentences were concurrent to each other and to terms of three years' imprisonment passed for the 1978 Act offences, in respect of which no issue arises. The extended sentence, on what were described as Counts 2-1 and 2-2 on the indictment, were made up of a custodial term of five years and six months and an extension period of four years' licence; an overall extended sentence of nine and a half years, pursuant to section 226A of the Criminal Justice Act 2003. 4. The appeal comes before the court because the judge made clear that his starting point for the custodial part of the sentence was a term of eight years, and he acknowledged that the appellant's pleas of guilty to the offences were prompt and that he was entitled to full credit. With a starting point of eight years and full credit of 33 per cent, the custodial element of the sentence should have been a term of five years and four months, and not the five years and six months passed by the judge. A simple arithmetical error was made, which the appellant somewhat belatedly has identified. The prosecution has accepted that an error was made and that the single ground is well founded. It appears that the error was not noticed by counsel on either side at the sentencing hearing. 5. In these circumstances, we quash the sentences on Counts 2-1 and 2-2 and substitute an extended sentence of nine years and four months, made up of a custodial sentence of five years and four months and a period of four years of extended licence. To that limited extent, the appeal is allowed. 6. It was in these circumstances, and at the invitation of the appellant's counsel, that we agreed that it was unnecessary for counsel to appear today.

2018_01_16-4141.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/499/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/499

5755dc0284b3bb55bddae8148ec58f4b6224efefb5066793adbb7b93b1fd7536

[2010] EWCA Crim 972

EWCA_Crim_972

crown_court

Neutral Citation Number: [2010] EWCA Crim 972 Case No: 200903318 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 22nd April 2010 B e f o r e : LORD JUSTICE STANLEY BURNTON MR JUSTICE TUGENDHAT RECORDER OF BRADFORD HIS HONOUR JUDGE STEWART QC (Sitting as a judge of the Court of Appeal Criminal Division) ------------------------------ R E G I N A v NADIA NATASHA PECCO ------------------------------ Computer Aided Transcript of the Stenogr

Neutral Citation Number: [2010] EWCA Crim 972 Case No: 200903318 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 22nd April 2010 B e f o r e : LORD JUSTICE STANLEY BURNTON MR JUSTICE TUGENDHAT RECORDER OF BRADFORD HIS HONOUR JUDGE STEWART QC (Sitting as a judge of the Court of Appeal Criminal Division) ------------------------------ R E G I N A v NADIA NATASHA PECCO ------------------------------ Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) ------------------------------ Mr P Marquis appeared on behalf of the Appellant Mr H French appeared on behalf of the Crown ------------------------------ J U D G M E N T 1. LORD JUSTICE STANLEY BURNTON: Nadia Natasha Pecco is a young lady aged 31. She was convicted of robbery at Snaresbrook Crown Court on 27th February 2009 before Her Honour Judge Kamill and a jury and was subsequently sentenced to four years' imprisonment. She appeals against her conviction by leave of the single judge. 2. It is unnecessary for the purposes of this appeal to describe in detail the robbery, which undoubtedly took place, although that evidence is in short compass. It took place on 2nd September 2008. The manageress of the shop in question was opening up the hairdressers’ shop where the robbery took place. A lady entered, produced a knife and demanded money and £400 was handed over. The woman left. A passer-by, Jacqueline Lee, gave chase, but the woman escaped on a bus. The knife was discarded and recovered. 3. The manageress, Miss Day, Miss Lee and another employee of the shop gave descriptions of the robber. The defendant, who lived locally and fitted the description given by Miss Lee, was arrested the same evening. She denied being the robber. She said she had been at home with her two children and a friend, who supported her alibi. 4. A video identification parade took place on the day after the robbery. The appellant was identified. Had that parade been properly conducted, there could have been no arguable ground of appeal in this case. However, in our judgment, unfortunately it was not conducted in accordance with the Code. Not only was it not conducted in accordance with the Code, but on any basis it was defective. It was defective for this reason. The appellant has two obvious tattoos, one on each side of the neck rather high up. One is a tattoo of a rose that is red and one is of a winged cross. The tattoos were noticed by both the manageress and Miss Lee. Miss Lee failed to identify anyone at the video parade which she attended. Miss Day did. As is required by the Code, and as is normal, there were eight other images of young women who more or less corresponded to her description, in that they were roughly of the same age and were black. 5. The purpose of the identity parade is to see whether a reliable identification can be made by a witness. If a suspected person has a very noticeable feature which can be seen easily on her and which is not present on any other of the persons shown in the video parade, the witness will be able to rule out the others. Equally, if she has a feature which is concealed but one can see from the other persons on the parade that they do not have that feature, inevitably the other persons are liable to be excluded. The value of the identification procedure in those circumstances is very substantially reduced. That is what occurred in this case, in that, having viewed the tattoos on the appellant and having viewed the images in the video parade, it is clear to us that all, or possibly all but one, of the other young women whose photographs are seen on the video parade could be excluded by reason of the fact it is clear they do not have the kind of tattoos that the appellant has. In those circumstances the value of the parade is insignificant. 6. There was no other significant evidence against the appellant. No clothes corresponding to the description of those worn by the robber were found. There was no fingerprint evidence against her, and no DNA evidence. It is true that she has a rose red tattoo as described by Miss Lee, but we do not know how many young women or young black women also have such tattoos. 7. In our judgment, in those circumstances the evidence of the identification in the identity parade should not have been put before the jury: its value was negligible. Having been allowed to go before the jury, it was important that a very clear direction was given to the jury to the effect that they had to consider the possibility that this appellant was identified because she was, by reason of the coverage of her neck, the only one who could be the robber in question. It is true that the witness said that she recognised the appellant by her face rather than by reference to any tattoo or absence of tattoo or coverage of a tattoo, but it is quite clear that she was an intelligent lady who appreciated that the absence of a tattoo excluded someone on the parade. 8. In our judgment, this conviction has to be quashed as unsafe, first, because the value of identification parade was minimal, and, secondly, because the direction of the judge in the summing-up was inadequate having regard to the very stark defect in the identification parade to which we have referred. Moreover, it is important that this Code is adhered to. Mistakes in identification leading to the conviction of innocent persons have been all too common in the past. The rules as to identification parades are intended to minimise that risk. This identification parade did not. In those circumstances, and for those reasons, we allow the appeal. The conviction will be quashed.

2010_04_22-2360.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/972/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/972

ba893433ebb5c75692556d422cee917974807783685d11d96aa9d3eff869b0f9

[2024] EWCA Crim 190

EWCA_Crim_190

crown_court

Neutral Citation Number: [2024] EWCA Crim 190 Case No: 202302624 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Liverpool Crown Court Mr Justice Goose T20237007 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/02/2024 Before: THE LADY CARR OF WALTON-ON-THE-HILL THE LADY CHIEF JUSTICE OF ENGLAND AND WALES MRS JUSTICE MAY DBE and MR JUSTICE FOXTON - - - - - - - - - - - - - - - - - - - - - Between: Connor William Chapman Appellant - and - Rex Respondent - - - - - - - - - - -

Neutral Citation Number: [2024] EWCA Crim 190 Case No: 202302624 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Liverpool Crown Court Mr Justice Goose T20237007 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/02/2024 Before: THE LADY CARR OF WALTON-ON-THE-HILL THE LADY CHIEF JUSTICE OF ENGLAND AND WALES MRS JUSTICE MAY DBE and MR JUSTICE FOXTON - - - - - - - - - - - - - - - - - - - - - Between: Connor William Chapman Appellant - and - Rex Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Mark Rhind KC & Mr Daniel Travers (instructed by Gibbons Law Ltd ) for the Appellant Mr Nigel Power KC & Ms Katy Appleton (instructed by The Crown Prosecution Service ) for The Crown/Respondent Hearing date: 29 February 2024 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down ex tempore on 29 February 2024 in Court 4. ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. The Lady Carr of Walton-on-the-Hill, LCJ: 1. This is a case in which reporting restriction orders have been made, both in the court below and in this court, under section 46 of the Youth Justice and Criminal Evidence Act 1999 and section 4(2) of the Contempt of Court Act 1981 . All orders are in place for the purpose of these proceedings, with the exception of three named persons in respect of whom reporting restrictions have been lifted. The reporting restriction orders do not prevent the public reporting of our judgment. Introduction 2. On 6 July 2023, following a trial in the Crown Court at Liverpool before Goose J and a jury, the applicant, Connor Chapman (aged 23 years) was convicted of the murder of Elle Edwards, the attempted murder of Kieran Salkeld and Jake Duffy, two counts of wounding with intent contrary to section 18 of the Offences against the Person Act 1861 and one count of assault contrary to section 47 of the Offences against the Person Act 1861 , and of the unlawful possession of a firearm and ammunition. He had pleaded guilty before trial to handling stolen goods, namely a stolen Mercedes A Class car used in the murder. 3. On 7 July 2023, the Judge sentenced the applicant to a mandatory sentence of imprisonment for life for the murder, with a minimum term of 48 years (less 176 days served on remand). This sentence was imposed on the basis that it reflected the totality of the applicant's offending. Thus, the Judge imposed concurrent custodial sentences on the remaining offences as follows: imprisonment for life, with a minimum term of 22 years on each of the two counts of attempted murder (counts 2 and 3); seven years' imprisonment for each of the section 18 offences (counts 4 and 5); 18 months' imprisonment for the section 47 offence (count 6); 15 years' imprisonment for each of the firearms offences (counts 7 and 8); and three years' imprisonment for the offence of handling stolen goods (count 9). 4. The applicant seeks leave to appeal, and his application has been referred by the Single Judge to the full court. In summary, it is contended that his sentence is manifestly excessive for two reasons: first, that in reaching the minimum term of 48 years, the Judge failed properly to assess the overall seriousness of this case, as against other exceptionally serious cases; and secondly, that the Judge failed sufficiently to reflect the applicant's age. The Facts in Summary 5. The background to the shocking events for which the applicant fell to be sentenced is the violent criminal rivalry between gangs connected to the Woodchurch and Ford Estates on the Wirral. The applicant was a very active member of the Woodchurch gang. Jake Duffy and Kieran Salkeld were leading members of the Ford gang. The rivalry between the two gangs manifested itself in a number of shootings in 2021 and 2022, which were a source of substantial anxiety for the people of Merseyside. 6. On 23 December 2022, one of the applicant's gang associates was attacked by Duffy and Salkeld in the street. Upon learning of this attack, the applicant decided to seek revenge through the murder of Duffy and Salkeld. 7. On the evening of Christmas Eve 2022, word reached the applicant that Duffy and Salkeld would be drinking at the Lighthouse public house in Wallasey village that evening. The applicant decided to drive to Wallasey to murder them there. He put false registration plates on a stolen Mercedes A Class car (which he also used for drug dealing), disguised himself with dark clothing, a mask, a hood and gloves, and sourced a Skorpion sub-machine gun with a loaded magazine carrying 12 bullets. Thus equipped, he set off from his home on the Woodchurch Estate, taking care to avoid security cameras on the way. 8. When he reached Wallasey, the applicant reconnoitred the area. He drove to six different places until he reached the car park close to the front door of the Lighthouse pub. He then hid in the car and waited for the opportune moment to carry out his attack. As midnight approached, the Lighthouse pub was busy, with revellers enjoying the festive season and looking forward to Christmas Day. At one point a number of individuals were standing outside the pub, including Duffy and Salkeld, and also Elle Edwards (aged 26 years), Harry Loughran, Liam Carr and Nicholas Speed. At some point the applicant moved from the Mercedes to a hiding place at the side of the building. At 11.52 pm he jumped out and emerged a few metres in front of the group outside the pub. He fired the sub-machine gun indiscriminately at the group, pulling the trigger 12 times in quick succession and in three separate bursts, emptying the magazine. The incident was captured on various CCTV footage, a compilation of which we have viewed. He fired his last few shots as he ran back to the Mercedes. In his obsession for revenge against Duffy and Salkeld, he was utterly indifferent to who else might be or would be killed or injured in the process. 9. Two bullets struck Elle Edwards in the back of her head, and she was killed instantly. Duffy and Salkeld sustained very serious injuries. Duffy sustained through and through injuries to both thighs. He was operated on and discharged from hospital on 27 December 2022. Salkeld was in an unstable condition on arrival at hospital and, following surgery, went into intensive care. He was discharged from hospital on 7 January 2023. Harry Loughran and Liam Carr were both wounded – Harry Loughran in the left forearm, and Liam Carr in the left shin. Nicholas Speed was also injured; he sustained a mark on his calf. Each of the other five could easily have been killed. 10. The applicant drove straight from the shooting to the home of his friend and co-defendant, Thomas Waring, to hide the stolen Mercedes car, the sub-machine gun. He left at least one of the gloves worn by him in the shooting (later found by the police). He then spent days after the attack attempting to remove or destroy evidence which would identify him as the gunman. This included washing the clothes worn by him during the attack, disposing of the clothing and his shoes, and destroying his mobile telephone. 11. On 30 December 2022, one of his friends had booked tickets for the two of them to travel to Spain. 12. The Mercedes car had been hidden close to where the applicant lived. Six days after the attack the applicant and Waring picked it up. The car was driven to a remote place in convoy with another Mercedes owned by another of the applicant's friends. The applicant and Waring set fire to the Mercedes to destroy. Waring and the other friend then returned in another Mercedes. 13. On 31 December 2022, a woman booked accommodation in Wales and hired a car for the applicant. The applicant drove that car to Wales, where he was arrested. A search of his house revealed clothing worn in the attack still in the washing machine. 14. The applicant provided a prepared statement in which he claimed to have been at home with his girlfriend at the time of the attack and declined to answer questions in interview. He pleaded not guilty. At his trial, he gave evidence over the course of three days. The Sentence 15. The Judge had before him not only all of the evidence adduced at trial, but additional material, including a community impact statement from Detective Inspector Mullen. That witness statement revealed, amongst other things, the following information relevant to deterrence: five firearm discharges in the Wirral in 2021, reducing to 9 in 2022, the index event being the last of those occasions. Since the applicant's arrest in 2023, there had been no firearms discharges in the Wirral. So far as the wider Merseyside area is concerned, in 2022 there had been 49 firearm discharges, five of which were fatal, and three of which were committed with Skorpion sub-machine guns. That figure had reduced in 2023 to 23, the lowest figure for firearm discharges in Merseyside for the past 20 years. 16. In sentencing, the Judge observed that the murder of Elle Edwards had caused profound and permanent grief to her family and indeed a great shock to the entire community. He referred to the exceptionally moving statements from Elle Edwards' family – from her father, her brother and her grandmother – which statements we have also read. 17. The Judge recorded that the sentence for murder is imprisonment for life, but that he had to decide whether the applicant should serve a whole life sentence or a minimum term. He indicated that he had considered carefully whether the applicant's offending was so exceptionally serious in the context of the gravest of murder offences that he should serve the whole of his life in custody. The Judge determined that the offending was on the borderline between a whole life order and a very long minimum term, and in those circumstances felt unable to conclude that a whole life term, as a sentence of last resort for the very gravest of murders, should be imposed. 18. Addressing the statutory starting points for murder set out in Schedule 21 to the Sentencing Act 2020 , the Judge identified the starting point for the minimum term which the applicant would have to serve in custody before seeking release as being 30 years. The case fell within paragraph 3 of Schedule 21, because the murder involved the use of a firearm. The Judge then noted that that starting point had to be adjusted for two sets of factors. First, were the factors increasing the seriousness of the murder. In this category the Judge identified the choice of weapon, which was exceptionally dangerous; the very public location of the offence, with many people present; the background of criminal gang violence; the "substantial" preparation and premeditation; the removal or destruction of important evidence; the fact that the applicant was the subject of criminal gang injunctions; and the dealing in Class A drugs. He noted that the only mitigating factor was the applicant's age (22 at the time of the offences and 23 at the time of sentence). He noted that whilst young age can be significant, in the circumstances of this offending it had very limited weight as a mitigating factor. 19. Taking these factors into account, the Judge stated that the minimum term would need to be increased to 36 years, before consideration was given to the other offences. We refer to this element of the increase from the 30-year starting point as "the initial uplift". 20. The Judge then turned to the two offences of attempted murder, the two offences of wounding with intent to cause grievous bodily harm, the section 47 assault, the two firearms offences, and the handling convictions. He stated that he would pass concurrent sentences for these offences, but that the seriousness of all of the offending had to be reflected in the minimum term imposed for the murder offence. On that basis he increased the minimum term to one of 48 years' custody. We describe this final uplift as "the further uplift". 21. The concurrent sentences imposed for the other offences were as follows: for the offences of attempted murder, the Judge concluded that the applicant was a dangerous offender and that discretionary sentences of imprisonment for life were appropriate under section 285 of the Sentencing Act 2020 . The Judge held that these offences fell into category A2 for the purpose of the Sentencing Council Guidelines on Attempted Murder, with a starting point of 30 years' custody for a single victim. The Judge raised the starting point to 33 years for aggravating features. The minimum term for the discretionary life sentences was accordingly set at two-thirds of that figure (22 years). The Judge held that the offences of section 18 wounding with intent fell within category A3 of the relevant Sentencing Council guideline, with high culpability and category 3 harm. Adjusting a starting point of five years' custody, he arrived at a sentence of seven years' imprisonment on each. He found that the section 47 assault fell within category A3 offending of the relevant Sentencing Council guideline, and he imposed a concurrent sentence of 18 months' imprisonment. The offences of the possession of the firearm and the possession of ammunition were found to be both category 1A offences of the relevant Sentencing Council guideline. Concurrent sentences of 15 years' imprisonment were imposed. Finally, the Judge imposed a concurrent term of three years' imprisonment for the handling offence, based on category 2A offending within the relevant Sentencing Council guideline. 22. In support of the overarching submission that the sentence was manifestly excessive, two grounds of appeal are advanced on the applicant's behalf by Mr Rhind KC. First, it is said that the Judge had failed properly to assess the overall seriousness of this case, as compared with other exceptionally serious cases, when determining the appropriate minimum term. The question for the Judge was, or should have been: where on the scale did the applicant's offending lie? Mr Rhind submits that, as bad as this offending was, there will always be more serious cases. The sentence imposed by the Judge in this case leaves no room for manoeuvre. 23. Secondly, it is said that the Judge failed sufficiently to reflect the applicant's age when determining the appropriate minimum term. It is emphasised that the applicant had no relevant previous convictions for violence. The applicant was only 22 at the time of offending; the ability of young people to analyse and understand the potential consequences of their actions does not mature fully until the age of 24 to 25. The applicant's age afforded a small, but nevertheless material, degree of mitigation which needed to be reflected in some way in the sentencing exercise. 24. Additionally, it is submitted: (1) That some of the factors relied upon in making the initial uplift, such as the removal and destruction of evidence, and the fact that the applicant was subject to a gang injunction, did not justify a significant adjustment to the minimum term and became almost insignificant in the context of the starting point of 30 years. (2) That there had been double counting, both in making the initial and further uplifts. The gang-related background of the offending and the breach of the interim gang injunction reflected essentially the same culpable conduct. The additional culpability in the use of the sub-machine gun and the firing of 12 separate shots was already reflected in the location and the timing of the offence and the fact that six people had been shot. 25. Expanding on the submission that the sentence here did not fit in with an approach based on a scale of offending, Mr Rhind took us to various previous appeals considered by this court, including R v Stewart and Others [2022] EWCA Crim 1063 ( Stewart ). He suggests that the minimum terms there deemed appropriate indicate that the 48 year minimum term here was too high. Reliance was placed, for example, on the minimum term of 48 years imposed on Monaghan following convictions for three murders and two attempted murders. 26. In addition, in terms of planning and premeditation, Mr Rhind emphasised that this was a single incident upon which the applicant must have decided to embark only hours before he committed the offence. The Judge was wrong to conclude that this offending involved a "substantial" degree of premeditation or planning within the meaning of Schedule 21 to the Sentencing Act 2020 . Mr Rhind drew a contrast between the degree of planning said to arise here with, for example, the planning by Monaghan. Monaghan had poisoned one of the victims over the course of a week. It was held that that did not amount to “substantial” premeditation or planning. 27. Mr Power KC for the respondent opened his submissions by emphasising that this court should be slow to interfere with the Judge's careful assessment of the facts, having heard all the evidence at trial. He also emphasises the element of deterrence as emphasised in the witness statement of Detective Inspector Mullen. As for age, Mr Power accepts that age is not irrelevant, but that fundamentally it is maturity that matters. The applicant gave evidence over three days and the Judge was well placed to assess his maturity. The minimum terms in Schedule 21 are themselves adapted for age. Further, the applicant's age has to be seen in the context of his criminal offending overall, which went well beyond his previous antecedents. 28. As for planning, Mr Power submits that there was clearly substantial planning and premeditation here, particularly when seen in the context of the applicant's overall criminal lifestyle, the background and build up to the precise offending in question, and the fact that the applicant was able, immediately upon hearing of his intended victims' location, to act in the manner in which he did. 29. Finally, as for the scale of offending, Mr Power says that the appropriate approach is to look at the facts of each case and to deal with the correct sentence on that basis, and that basis alone. In any event, Mr Power suggests that this sentence does leave sufficient room for more serious offending, and submits that whole life sentences are no longer the rare beast that they were once thought to be. The Legal Framework 30. Section 321 of the Sentencing Act 2020 sets out the circumstances in which a whole life order must be imposed. Schedule 21 to the Act (Schedule 21), which has effect by reason of section 322(3), provides for the circumstances in which the starting point is a whole life order (see paragraph 2): namely, that the court considers that the seriousness of the offence or the combination of the offence and associated offences, is "exceptionally high", and the offender was aged 21 or over when the offence was committed. 31. The relevant principles to be applied when determining whether or not to impose a whole life order were summarised in Stewart at [19]. Amongst other things, it was recognised (at [19(iii)]) that the facts of some cases will leave the judge in no doubt that the offender must be kept in prison for the rest of their life. If there is doubt, that may be an indication that a finite minimum term which "leaves open the possibility that the offender may be released for the final years of their life is the appropriate disposal" (citing R v Jones [2005] EWCA Crim 3115 at [10]). 32. If the judge concludes that a whole life order is not necessary, they are obliged to set a minimum term: see section 321(2) of the Sentencing Act 2020 . By section 322 , the minimum term must take into account the seriousness of the offence and any period spent on remand in custody. In considering the seriousness of the offence, the court must have regard both to the Schedule 21 and any sentencing guidelines relating to offences in general which are relevant to the case and not incompatible with the provisions of Schedule 21: see section 322(3) . The starting points identified in Schedule 21 are not to be applied mechanistically, but in a flexible way so as to achieve a just and proportionate result. 33. Paragraph 3 of Schedule 21 provides for the circumstances in which the starting point is a minimum term of 30 years; that is to say that the court considers the seriousness of the offence, or the combination of the offence and associated offences, to be "particularly high" and the offender was aged 18 or over at the time of the offending. Paragraph 3(3) identifies that a murder involving the use of a firearm will normally fall within paragraph 3. 34. Paragraphs 7 to 11 of Schedule 21 make provision for aggravating and mitigating factors. It is important not to double count by way of aggravation those features of the murder which give rise to a higher starting point, such as the use of a firearm, and features already inherent in the crime: see R v Stanciu [2022] EWCA Crim 1117 at [27] and [30]. 35. As to the approach to be adopted when sentencing for associated offences at the same time as imposing a mandatory life sentence, it is appropriate to reflect each of the offences for which sentence is being passed: see Attorney General's Reference (No 126 of 2010) [2011] EWCA Crim 725 at [47] and R v Thillainathan: Setting of Minimum Terms [2007] EWHC 1323 QB at [18]. 36. However, considerations of totality mean that the minimum term will not be the arithmetic total of that which would have been imposed for the offence of murder on a stand-alone basis. What is required is an exercise of judgment, applying the statutory criteria that the minimum term must reflect the seriousness of the criminality taken as a whole: see R v Soj [2022] EWCA Crim 1730 at [49]. Discussion 37. The Judge here concluded that this was not a case in which a whole life order was necessary. It was "on the cusp between a whole life and a very long minimum term". Thus, he was obliged to set a minimum term. There is no suggestion that the Judge erred in taking the 30 year minimum term in paragraph 3 of Schedule 21 as his starting point. The focus of the proposed appeal is the extent of the uplifts from that starting point. 38. We have considered the arguments advanced by reference to both the initial uplift and the further uplift although, of course, ultimately what matters is whether the minimum term of 48 years was manifestly excessive. 39. We note at the outset that there is no significant assistance to be gained from an examination of the outcomes in other cases, such as those in Stewart . We were also referred to R v Cashman [2023] EWCA Crim 1349 for general context. As the court observed in Stewart at [18(vi)] and Cashman at [23], comparisons with other cases are unlikely to be helpful. 40. Nor do we consider it helpful to consider whether the minimum term of 48 years is manifestly excessive by reference to a spectrum of possible alternative hypothetical offending, which may be more serious than the index offending. The structure of Schedule 21 itself identifies categories of seriousness. What is required is an assessment of whether or not a sentence is manifestly excessive by reference to what is a just and proportionate sentence reflecting the seriousness of the offending overall on the facts of each specific case. 41. We also note at the outset that this sentence was imposed by a highly experienced Judge who had presided over a lengthy trial. His crisp sentencing remarks reveal no error of principle. As for the facts, he was very well placed to assess the overall seriousness of the offending, including the applicant’s maturity and culpability. 42. The Judge was fully entitled to find that there were a number of serious aggravating factors in the murder of Elle Edwards which merited a significant increase in the starting point of 30 years for a murder with a firearm. First, there was the background to the offending in the form of criminal gang violence, including the breach of an anti-gang injunction and Class A drug dealing. 43. Secondly, there was premeditation and planning. The Judge, as we have indicated, had the full background to what was a substantial body of evidence relating to the build-up and criminal activity in the months leading up to and including December 2022. Further, it is important in this context to distinguish between two aspects. The applicant's planning on the night could only begin once he had been appraised of Duffy and Salkeld's movements that evening and the degree of planning and premeditation which was then brought to bear is obvious from the facts that we have outlined above. However, that does not mean that the applicant's intention to kill Duffy and Salkeld was only formed, as well as acted upon, that evening. The prosecution case was that, following the attack carried out by Duffy and Salkeld on 23 December 2022, itself the culmination of a long dispute between rival gangs, the applicant and Waring were in regular telephone contact. As we have noted, the applicant was then ready to act immediately upon learning of Duffy and Salkeld's location on Christmas Eve, with equipment and the firearm ready to go. Having heard all of the evidence in the case, the Judge observed on repeated occasions during the course of his sentencing remarks that this offending involved premeditated and carefully planned activity on the part of the applicant. We see no proper basis for interfering with that assessment. 44. Thirdly, there is the manner in which the murder was carried out. Even with the serious feature of a murder using a firearm, the use of a sub-machine gun represented an aggravating factor. The rapid and indiscriminate fire of which such weapons are capable generates an enhanced risk of death or serious injury, not simply to the intended victim, but to anyone in the vicinity. That risk was significantly enhanced here because of the location and timing of the attack: a public house on Christmas Eve in which it was clear that many bystanders were present celebrating the holiday season, alongside Duff and Salkeld. 45. Fourthly, there were concerted steps taken, in which the applicant involved a number of others, to conceal and destroy evidence which would have linked the applicant to the attack. 46. As to mitigation by reason of the applicant's age, the Judge considered this carefully. He concluded that it did have some, albeit very limited, effect in this case. We remind ourselves that the Judge had heard the applicant give evidence at trial. He was therefore well placed to assess maturity and therefore culpability. It was not suggested to him that a pre-sentence report was necessary, and we agree that one was not required. On the evidence, the applicant had a deeply embedded criminal lifestyle. He had acted on his own initiative, rather than under the direction or influence of anyone else in planning and implementing the attack, and then in attempting to cover it up. By the time of the murder the applicant had already accumulated 20 convictions for 45 offences over a period of six years. In addition, there was the evidence from the applicant himself of his embedded criminal lifestyle in the months before the murder. 47. Had the murder of Elle Edwards been the only offence for which the applicant fell to be sentenced, we would not have been persuaded that a minimum term of 36 years for a murder committed in these circumstances could be said to be manifestly excessive. 48. We turn to the further uplift made (from 36 years to 48 years) to reflect the other offences for which the applicant was to be sentenced. This is really the heart of the application. 49. We accept that it was important in this context to avoid double counting with the aggravating features of the murder offence. For example, the use of a firearm was reflected in the 30-year starting point already. The indiscriminate and highly dangerous nature of the weapon and the procuring of the weapon as part of the planning for the offence were all relied upon for the purpose of the initial uplift. We also accept that the features of the attack reflected in the matters set out above for the initial uplift - the nature of the weapon used with its inherent potential to cause indiscriminate injury, and the enhancement of those risks by the time and place of the location - can at some level be said to have manifested themselves in the other offences committed and the injuries caused to the other victims. 50. However, there are key elements of those additional offences which will not have been reflected in the initial uplift. 51. First, and most importantly, there is the fact that the applicant went to the Lighthouse pub and used the sub-machine gun with the intention of killing two people, albeit, as events turned out, he killed one person who was not his intended target. Secondly, in addition, whilst the circumstances of the murder were aggravated by the risks inherent in its means, location and timing, those risks materialised in the form of further criminal offences committed in each case with the necessary intent and each of which inflicted physical harm of varying degrees, but including, in some cases to a very serious degree, on additional victims. Those are matters which the Judge was required to reflect in the overall sentence. 52. The issue which arises in these circumstances is whether the further uplift of 12 years to reflect these factors and the totality of the offending can be said to be manifestly excessive, and, more fundamentally, whether that can be said of the minimum term of 48 years as a whole. As set out above, whilst it is not an arithmetical exercise and there must be no double counting, the additional associated offences merited very significant custodial sentences by themselves, with a minimum term of 22 years for each of the attempted murders alone. 53. Nevertheless, we consider it to be arguable that a minimum term of 48 years for a 22 year old with no relevant previous convictions, and where the factors justifying the starting point of 30 years and the uplift to 36 and then 48 years overlap to some extent, was manifestly excessive. 54. However, we remind ourselves that, as this Court recognised in Stewart , there are borderline cases in which the seriousness of the offending does not require a whole life order, but is nevertheless sufficiently serious to justify a finite minimum term, which leaves open the possibility that the offender may be released only for the final years of their life. The applicant here killed one person with murderous intent, and intended to kill two more. This was a case in which, in his obsessive determination to take those two lives, the applicant was willing to kill more and could so easily have done so. The additional offences merited very significant custodial sentences on their own. 55. It is important, in our judgment, that the Judge's assessment was that this was a case that fell on the cusp of offending which merited a whole life order. He gave the applicant the benefit of the doubt in imposing a finite minimum term. We are not persuaded that the Judge was wrong to conclude that this was a case where the applicant should not be considered eligible for release by the Parole Board until his 70th birthday, with the possibility of release only for the final years of his life. 56. The further uplift, which resulted in an overall minimum term of 48 years, was in our judgment severe but not manifestly excessive. This was violent gang offending which involved a firearm and multiple victims, one of whom died. Many more could well have done so. Conclusion 57. For these reasons we grant leave, but the appeal against sentence is dismissed. We confirm that the minimum term remains 48 years (less 176 days spent on remand), or 47 years and 189 days. __________________________________ 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: rcj@epiqglobal.co.uk _____________________________

2024_02_29-6078.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/190/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/190

b546cadd42d38253afc1681bb2e438abe196eed7278a198b3b38190958f0fd34

[2007] EWCA Crim 1471

EWCA_Crim_1471

supreme_court

Neutral Citation Number: [2007] EWCA Crim 1471 Case No: 200701598c5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM COURT MARTIAL AT HMS NELSON HIS HONOUR JUDGE BLACKETT JUDGE ADVOCATE GENERAL Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/06/2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE PITCHFORD and MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - Between : R - and - Phillip Coates - - - - - - - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 1471 Case No: 200701598c5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM COURT MARTIAL AT HMS NELSON HIS HONOUR JUDGE BLACKETT JUDGE ADVOCATE GENERAL Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/06/2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE PITCHFORD and MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - Between : R - and - Phillip Coates - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr A.M. Large for the Appellant Mr A Bright QC, Mr P Glenser and Commander J Pheasant RN for the Prosecution Hearing dates : 13 th June 2007 - - - - - - - - - - - - - - - - - - - - - Judgment President of the Queen's Bench Division : 1. On 9 March 2007 Phillip Coates was convicted of rape at a Court-Martial held at HMS Nelson (His Honour Judge Blackett, Judge Advocate General). We adjourned our decision at the close of the hearing to examine the transcripts of the evidence of the complainant and the appellant. This is our judgment on his appeal against conviction heard on 13 June. 2. The appellant is a senior naval rating. The complainant was a naval medical assistant. She worked aboard ship. 3. On 7 March 2006, the appellant and two other senior ratings joined the ship. During the period of his visit he worked closely with the complainant. There was no suggestion of any intimate contact. Their relationship appeared entirely professional. On 8 th March a barbeque was held on the quarter deck. Both the appellant and the complainant were present. Alcohol was on sale. During the course of the evening the complainant drank a bottle of rosé wine, two glasses of punch and a vodka. The appellant drank six cans of lager and a glass of wine. This event ended at about 22.30. Thereafter the complainant and two other females sought to enter the Senior Rates Mess. They were refused entry. The appellant was invited to the Junior Rates Mess. He took a bottle of rosé wine with him and presented it to the complainant. She gave him a brief kiss on the cheek. She did not drink any of this wine because she had had enough to drink. By now she was “tipsy”, but not drunk. Some entertainment by way of a DVD quiz game then took place. 4. At about midnight the appellant and complainant had sexual intercourse in the sick bay. The Crown’s case was that she was raped. His case was that after some familiarity which started on the quarter deck, they both went voluntarily to the sick bay where consensual intercourse took place. 5. To understand the issues in the appeal we must provide a short summary of the sequence of events after intercourse, before examining them in detail. The complainant made oral complaints to a number of individuals, and overnight, early on 9 March, she made a written statement. The complainant made a second written statement on 10 March. On 30 March she made a further written statement. After consultations and therapy with a doctor of clinical psychology, Dr McGowan, who was an accredited consultant in Eye Movement Desensitisation and Reprocessing (EMDR), on 19 May she made a fourth written statement. 6. The first witness who described the complainant after sexual intercourse had taken place, said that he saw her coming to the Junior Rates Mess between 0100 and 0130. She was crying. He tried to talk to her. She would not say what was wrong. She asked him to get hold of a LWEM Watts. Another witness who saw the complainant in the dining room said she was crying. It was “proper sobbing”. About 15 minutes later, after LWEM Watts arrived, she said “he raped me”. Another witness gave a similar description of the complainant’s condition. Twice she heard the complainant say, “it wasn’t my fault”, and also, “he tried to kiss me and I kissed him back, but I didn’t want to”. 7. When LWEM Watts arrived, the complainant had her head in her hands. She was very red in the face and sobbing. He could smell alcohol on her breath, but she did not seem inebriated. Her first words were “he tried to rape me”. She was not specific. He asked who was responsible. After a couple of attempts she said “it was a senior rate”, and shortly afterwards she identified the appellant. 8. LWEM Watts then woke Lt Wooller. She went to the dining hall. She saw the complainant who was extremely distressed and sobbing. She could not recall the exact words of the allegation made by the complainant. She went to inform the CO. 9. Thereafter the complainant was seen by Coxswain Cox. The complainant was very distressed, crying in a stuttering sob, gently rocking backwards and forwards. She was taken to the wardroom. She was very upset. She said, “why is it always me? My boyfriend is not going to love me”. Initially she appeared unable or unwilling to talk about the incident, but then she became quite forthright saying, “we had sex”. She said that she had tried to say “no”, but eventually she just gave up and thought “what’s the point, its going to happen”. She said that the appellant repulsed her and that he was repulsive. She said that it started with a kiss from him, and there was a kiss back, and it got out of hand. The kissing took place in the sick bay, and although sex had happened, she did not want it. Eventually Coxswain Cox was able to persuade the complainant to write down what she had said. She was still upset, and could not write it down straight away. Although she smelled of alcohol, she seemed capable of making the statement. Had she been drunk he would not have allowed her to do so. 10. The statement itself is brief. After describing how she and the appellant had been chatting, they went to the sick bay together, where it ended up with him kissing her. “We kissed for a little while then we ended up having sex on the sick bay bed. I had tried saying no but in the end gave up. Sex happened on the sick bay bed. I felt repulsed throughout the whole experience. When it was over he got dressed and left the sick bay. I left soon after….I tried at first to deny anything was wrong but soon they saw through that. They took me to the Dining hall…”. On this account she submitted to intercourse. 11. Coxswain Cox accepted, as the statement itself shows, that the word rape did not appear. He said that that word had not been used in his presence, otherwise it would have been recorded. If she had used the words “non consensual”, they too would have been recorded. Those words were not used by the complainant. 12. The complainant was medically examined early on the 9 th and in the afternoon of 9 March. Various marks on her were consistent with intercourse having taken place, but they were consistent with consensual intercourse as well as rape. 13. The appellant was arrested in the early hours of 9 March, and cautioned. When interviewed he admitted having intercourse with the complainant but denied the allegation of rape. 14. On 10 March a much more formal, service police witness statement was taken from the complainant. Among other observations the complainant said, “with regards to the alcohol, I said I had stopped drinking by the time I got into the Junior Rates mess but I didn’t feel any worse through alcohol and I remained as I described earlier in a “happy” and “tipsy” condition. I didn’t consider myself to be drunk or anything….. I can’t remember whether there was any contact between me and CPO Coates whilst we were sat in close proximity to each other.” However, her memory was disturbed. “Importantly I cannot even recall when I left the Junior Rates mess or who I left with or confirm where I went to. I have no distinct recollection of anything really until some time later that night when I remember being in the ships company dining hall. I was alone and remember being upset and distressed. I was crying and sat down and holding my hand across my face and sobbing. I remember now that in the state I was aware that CPO Coates had either tried or had had sex with me and that it had happened without me saying it could happen. I remember thinking this in a terribly distressed state but I don’t recall thinking about how or where it had happened and cannot remember these details. I just recall being absolutely distraught that something really bad had happened to me.” 15. In answer to a direct question she confirmed that she had “no distinct memory of what occurred between my being in the Jnr Rate Mess with the other people I mentioned to the point where I was alone and crying within ships company dining room”. 16. The statement continues by referring to individuals to whom she spoke, and her meeting with LWEM Watts, and the narrative then resumes, “within the dining room at that time I remember feeling more sober than I had earlier. I felt totally devastated and in shock and I remember things started to happen quite quickly then. At some point I recall making a quick written statement for the coxswain but I can’t remember what I wrote in it. I recall signing it as the coxswain asked me. I felt rushed to sign it and wasn’t sure whether I should have taken more time over it but I signed it anyway”. 17. Having read the statement over she added, “I can state that I do recall making the statement now but on reading it the content concerning the kissing and then having sex on the sick bay bed with CPO Coates doesn’t jog my memory at all. Although I can picture those events in my mind now that I have read the content of (the statement), I cannot remember the sex taking place or details of anything that may have been said during it….I have still no doubt however that sex in some form has occurred and this is based upon my emotional state after the incident and the physical way I felt inside my vagina after it”. She described her physical condition which in the past was associated with having had “rough or hurried sex”. She repeated that she could only vaguely picture having sex. She recalled “kissing and fumbling around and I vaguely recall being in the sick bay. The only way I can describe it is that I am unable to say whether these almost “flash” images are remembered from actual memories in my mind or whether I have assembled them as imagined pictures based upon perceptions of what I believe occurred”. 18. The statement addressed the issue of consent. “Even though I may be confused over what has occurred I believe that without doubt there is no way I would have consented to any kind of sexual activity taking place with CPO Coates and based upon my distressed state afterwards and the fact that I know I would never have consented to sex with CPO Coates, I believe that I was raped within the sick bay that night.” The statement ended by stating that the complainant was menstruating. She had last used a sanitary pad on the morning of 8 th March, and this pad was in place in her knickers at the time of her medical examination on the morning of 9 th March. 19. The statement on 30 March enabled the complainant to consider the response of the appellant to her allegations. She appreciated he was asserting that intercourse had been consensual. She maintained her determination to pursue her complaint because she was “adamant” that although she was “unable to recall events as they unfolded that night” she was sure that she would not have consented to intercourse with the appellant because she was “so upset about it afterwards”. She had no feelings for the appellant, intimate or otherwise, and certainly did not feel attracted to him. Collectively the facts left her “feeling adamant that she would not have consented to intercourse with the appellant under any circumstances”. Addressing the appellant’s assertion that they had kissed on the quarter deck before visiting the sick bay she responded that she had no recollection “whatsoever” of it. 20. Following her consultations with Dr McGowan, her fourth statement of 19 May asserted that she was now able to recall events between the time when she was in the Junior Rates Mess, and her later presence in the dining hall, in a distressed state. She remembered unlocking the sick bay and going into it. That could have been for a number of reasons. She went in alone. She did not invite anyone in. As soon as she entered the sick bay she realised that she had been followed by the appellant. Once in the room the appellant closed the door. She could not recall any conversation at this stage. She was quite sure that he or she did not lock the door, but she was not 100% sure of it. She then provided a description of the incident. As soon as the appellant was in the sick bay, he put his arm round her waist, attempting to kiss her and pulled her close to him so that they were face to face and their bodies touching. She leaned back to move away. He kept his arm round her pulling her close to him. He kissed her on her lips. She struggled to get away from him and to push him away. However there was not enough space for her to get away. 21. She confirmed in the statement, “From my actions in trying to push CPO Coates away, and struggling to get out with his arm around my waist, he should have realised that I did not want what was happening. I certainly did not consent to him kissing me.” She then described the clothes she was wearing, observing that her belt was easy to open. “CPO Coates managed to open my belt and get my trousers undone, and before I knew it, he had pulled them down to my knees. This was all done very fast, and I could not stop him doing it, even though I was still struggling and trying to back away. I can’t remember if CPO Coates used both hands to remove my trousers or one. I don’t remember anything being said at this point, nor did I scream, because I was just trying to get out of the situation. ….I was feeling sick in my stomach. Again, I did not want this to happen, and by my struggling and backing away, CPO Coates should have realised this.” 22. The statement continued by describing how the appellant started to try and lift her top, but went on that as he did so, “I was able to pull my trousers up and get the two metal fasteners together but I don’t think I managed to do up the zip fly. In bending slightly over to get my trousers I also stopped CPO Coates from lifting up my top”. 23. She then described her next recollection, when she was “lying on the bed within the sick bay”. She could not recall how she managed to end up on the bed, but most of her body was lying on the bottom end, while her legs, from the knees down, were hanging off the bed. “Events happened very fast, and before I knew it, CPO Coates had managed to undo my trousers and pull them down to my knees. At the same time, he pulled down my knickers to the same level”. She then described the appellant on top of her, trying to push her top up, asserting that while he was doing this “I was still struggling and trying to get away”. However she was unable to “get him off” her. At one point he grabbed hold of one of her arms to prevent her pushing him off. She believed that the only reason why the appellant “wasn’t fully able to have sex with me, was because I was continually fighting to get him off me. I struggled throughout the whole incident and at no time gave CPO Coates any indication that I wanted to have sex with him”. She described how she “finally managed to struggle free from CPO Coates and got off the bed”. 24. On this account there was no kissing at all, and rather than going together to the sick bay, with the appellant following her into it, he took her by surprise. In summary the account which followed describes resistance by her throughout, with the appellant forcing her to have intercourse by overcoming her struggles. 25. The complainant said that she did not want the appellant to realise that he had upset her, so she would not have appeared “outwardly distressed”. At that time she was not crying or upset, but “obviously” she would not have been acting in a friendly way towards him. After they were both dressed, they left the sick bay, and she followed him out. Immediately outside he asked if she was going to be “OK”, and she responded that she would. 26. The complainant added that when she was in the dining room she had telephoned her boyfriend. They had a brief conversation. She did not want to mention what had happened to her, as she did not want to tell him over the phone. 27. The problem with these four statements does not require any substantial analysis. In the first statement, made on the night in question, the essential allegation is that after kissing for a while the couple had intercourse on the sick bay bed because in the end she gave up trying to say “no”. The second and third statements suggest the absence of any memory of the circumstances in which intercourse took place. The fourth statement conveys that intercourse took place notwithstanding the complainant’s continuous struggling. Both the first and fourth statements involve allegations of rape, but there are significant differences in the circumstances in which it allegedly occurred. 28. From the outset the Crown’s case was that the appellant should be convicted on the basis of the account given in the fourth statement. In fact the conviction was based on the first statement. 29. We must analyse the trial process. A pre-trial hearing took place on 1 March 2007. It was submitted that the evidence of the complainant after her visits to Dr McGowan should be excluded under section 78 of the Police and Criminal Evidence Act 1984 . The Judge Advocate General addressed the circumstances in which the statement was prepared and obtained. He heard the evidence of Dr McGowan for the prosecution, then Dr Boakes for the defence, and then Dr Philip Dodgson for the prosecution. The details of the argument require no elaboration. Bad faith was not alleged. No criticism was made of the complainant herself. The essential submission was that the process undertaken by Dr McGowan resulted in the production of evidence which it would be unfair to admit. It was further suggested that if that application succeeded, the earlier evidence should be excluded on the basis that the original recollection by the complainant could not be properly tested in evidence. 30. In the course of the submission on the appellant’s behalf the Judge Advocate General observed that if he ruled that the fourth statement was inadmissible “then the whole evidence must go because she is tainted. You do not need to develop that further, it is clearly a sequital, it all stays or it all goes clearly.” Counsel for the appellant observed that all he was asking for at that time was a ruling that the post McGowan evidence should be excluded. If that ruling were made he hoped that everyone would agree that the case would come to a halt without the need to transform his submission into an abuse of process argument. Counsel for the Crown commented that if the evidence of the complainant were excluded the case would fall away. At the hearing before us there was some discussion about precisely what counsel had in mind. Although it is not clear that counsel was conceding that the exclusion of the fourth statement carried with it the consequence that the first and other statements should also be excluded, the language of the Judge Advocate General is unequivocal. Nevertheless he concluded that notwithstanding that the process undertaken by Dr McGowan had facilitated what was described as pre-memory recall in inappropriate circumstances, evidence based on the fourth statement should be admitted. Preparations were made for trial accordingly. 31. When the Court Martial convened, counsel for the Crown opened the case against the appellant by adopting the fourth statement as the basis for the Crown’s case. He referred to the first statement in somewhat opaque terms saying, “it may be that you will hear quite a bit about what she said in that first written statement”. 32. The complainant gave evidence, effectively repeating the account given in her fourth statement, explaining that it was after she had seen Dr McGowan that she remembered the events she described in her evidence. Inevitably she was cross examined on the basis of the inconsistencies between the fourth and the first statements. She ruled out consensual kissing at any time. She remembered resisting. She could not remember the events described in her first statement. She was also cross-examined about the absence of memory dealt with in her second and third statements. Effectively, she adhered to a memory of the incident described in the fourth statement. The first statement became an exhibit at the request of the defence. The only post intercourse complaint she could remember making was that she told LWEM Watts that a senior rate had tried to rape her. 33. The evidence of Dr McGowan, Dr Boakes, Dr Dodgson, and now of Dr Mason, a clinical psychiatrist, was called before the Board. The effect of the expert evidence was that, of the complainant’s versions of the incident, the first was the more likely to be accurate. None of the experts said, nor could it have been said, that the first version was in fact accurate. 34. At the end of the prosecution case it was submitted that the proceedings should be stayed as an abuse of process on the basis that a fair trial could not take place. It was not argued that there was no case to answer. In his ruling the Judge Advocate General concluded that it was agreed between the experts that the memories described in the fourth statement could be fact or fiction, and together with the evidence of the alcohol consumed by the complainant, he was persuaded that the fourth statement was unreliable “as is her testimony relating to it”. However he did not exclude it, nor indicate that he would direct the Board to ignore it. Neither he, nor counsel, reflected on the judicial observations during the pre-trial process that if the fourth statement were excluded, all the complainant’s statements would be excluded. That, of course, may be because the evidence based on the fourth statement was not in fact excluded. Nevertheless the finding of “unreliability” in relation to both the fourth statement and the complainant’s evidence is material to our decision. 35. The basis of the submission was that the defendant would have to persuade the Board to prefer the first statement to the fourth, when the first statement supported a charge of rape, which he would then have to suggest was wrong. The Judge Advocate General rejected the argument that the defendant was in an impossible position and concluded that counsel for the defendant could deal “simply” with the problems, by submitting that the fourth statement was too unreliable, and that the first statement was the product of an individual who consented to intercourse but immediately regretted it. He said that the fairness of the trial could be guaranteed by very careful directions, with particular emphasis on difficulties arising from the involvement of Dr McGowan with the complainant. We respectfully doubt whether the forensic problems facing counsel for the appellant were realistically described as simple, and the necessity for very careful directions was obvious. In the result, the evidence of her complaint as well as her first statement, together with all the expert evidence relating to the reliability of her post-therapy account, were left to the Board. 36. The appellant gave evidence. In essence, this was an act of consensual intercourse, in which the complainant took an active and encouraging part. In cross-examination this account was treated with some disdain, but the case put to the appellant was based at least in part on the complainant’s “unreliable” evidence to the Board. This, it was suggested to him, was that the complainant was raped while she was trying to keep her clothes on and scrabbling to keep her trousers about her body. In other words the Crown adhered to the case that the rape followed resistance, not submission, at least until counsel addressed the Board after all the evidence was completed, when we are told that both possibilities were put to it. 37. The Judge Advocate General directed the Board to “exercise caution before they acted on the unsupported memories of the complainant after the therapeutic session with Dr McGowan”. However he left open the possibility of a conviction for rape on that basis. He summarised the evidence of the experts in detail. He did not comment on the reliability, or otherwise, of the fourth statement, or the evidence based on it, or the consequences of the complainant’s therapy with Dr McGowan. He did not remind the Board that the overall effect of all the expert evidence was that of the complainant’s two versions of the incident, the first would be more likely to be accurate. He further directed that the oral complaints made by the complainant after intercourse could be taken into account as evidence of consistency, but directed that the complaints themselves did not prove that “what she said actually occurred”. Proper directions were given in relation to distress. He addressed the issue of drink in the context of the complainant’s capacity to consent to intercourse, pointing out that if through drink the complainant was so intoxicated that she lacked the capacity to consent, then there was no consent. 38. In due course the appellant was convicted. Unusually, and because this was a Court- Martial, we know the factual basis on which the conviction was returned. In his sentencing remarks the Judge Advocate said that the Board’s view was “that the most reliable account of what occurred came from the first statement and the complaint made by the victim immediately afterwards, as well as her extreme distress”. He further commented that the appellant’s account of how the complainant moaned with pleasure and shouted encouraging profanities was a complete fabrication. In the result therefore this appellant was convicted of rape on the basis of an account of the incident which, the complainant herself disavowed in her evidence, and which did not represent the Crown’s case against him. This is highly unusual. 39. A conviction for rape may, of course, be returned without the oral testimony of the complainant. As examples, after giving a detailed written statement of the incident, the complainant may suffer a justified fear of serious repercussions if she were to give evidence, or she may suffer an accident with head injury and loss of memory. The written statement would almost certainly be admitted. Again, the complainant may have been unconscious at the time of intercourse, or so inebriated as to have no memory of the precise circumstances, but others may have witnessed it. In other words a positive case may be mounted by the prosecution without the complainant giving oral evidence. 40. The present case is more problematic. The complainant was available to, and did give evidence. She effectively rejected her own first account of the incident. She advanced another, more serious scenario. In the final analysis the conviction was returned notwithstanding the Board’s unsurprising rejection of the complainant’s oral evidence. Two additional features should be highlighted. Her first statement would have left open the possibility of inebriated misunderstandings about the complainant’s attitude to sexual activity with the appellant, whereas the fourth statement and her evidence excluded the possibility that intercourse took place on the basis of some such misunderstanding. The second is that in the context of the first account, the alcohol consumed by the complainant may have had a possible impact on whether or not she may have consented to intercourse, and subsequently regretted it, whereas on the account she actually gave, the alcohol had no effect at all. However much she had consumed, she struggled, as best she could in the limited space, throughout the incident. These differences are not immaterial, and their significance is undiminished by the Board’s rejection of the appellant’s assertion of her enthusiastic participation. 41. In his careful submissions on behalf of the Crown Mr Bright QC sought to address the impact of section 119 and 120 of the Criminal Justice Act 2003 on the admissibility of the first statement, and indeed the account of the complaints made immediately after intercourse had taken place, suggesting that on one view the directions in relation to complaints were over-favourable to the appellant. The first statement was inconsistent with the complainant’s testimony. Accordingly it was not admissible under section 120(4)(b) of the 2003 Act . The complainant did not confirm it. Rather she disowned it. The same considerations applied to the accounts given by the complainant to others on the night of the incident. That left the possible admission of the first statement under section 119 (1) of the Act. This provides “If in criminal proceedings a person gives oral evidence and – (a) he admits making a previous inconsistent statement,… the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible”.” 42. On a strict application of the language of the section, the statutory conditions governing admissibility were fulfilled. However we emphasise that the overall discretion of the court under section 78 of the Police and Criminal Evidence Act 1984 in relation to the fairness of proceedings applies to evidence which falls within these statutory criteria. It is critical to the analysis that the complainant did not support any version of events which she had given before she saw Dr McGowan. Everything she said afterwards about the incident, whether in her statement or her testimony, was, as the judge found, “unreliable”, and should have been treated as such. Although the section 78 issue was not addressed after the pre-trial hearing, it seems to us that from the forensic point of view, once the complainant was allowed to give evidence along the lines of her fourth statement, counsel for the defendant had no choice but to cross-examine her by reference to the first statement. In short, although counsel introduced the first statement, this was a direct consequence of the Crown proceeding on the basis of the fourth statement. As counsel said it was indeed inevitable that the Board would hear about it. His case made it so. It would have been remiss for the defence to fail to use the first statement to help demonstrate the unreliability of the complainant’s oral testimony, and the danger of accepting the Crown’s case against him. In these circumstances, notwithstanding the provisions of section 119 , in our view, as a matter of discretion and overall fairness, the first statement should not have been treated as admissible evidence sufficient to form the basis for a conviction for rape disavowed by the complainant herself. 43. Apart from the pre trial hearing the Judge Advocate General was not invited to deal with the case on this basis. He was asked to consider an alleged abuse of process. In reality the application of section 119 of the Act, and the implications of section 78 of the 1984 Act were not fully addressed in argument before him. If they had he might well have withdrawn the case from the Board at the conclusion of the prosecution case, or if he considered that the case should be left to the Board to form its own view of the complainant’s oral testimony, he might then have directed the Board that the contents of the first statement did not provide admissible evidence. In other words, unless the Board accepted her oral testimony, the defendant should not be convicted. 44. There is a further problem with this conviction. Assuming that it was right for the trial to continue on the basis that the first statement provided admissible evidence, in our judgment what had to follow was a careful analysis of the different possibilities available to the Board. The Board had to consider whether to convict the appellant either on the basis of the complainant’s testimony or on the basis of her first statement. This required a careful analysis of the potential difficulties to the defence generated by what we shall describe as the McGowan process, and the deficiencies and unreliability of the evidence consequent upon it. We need not spend any time on this aspect of the case because, as we know, the Board rejected the post McGowan evidence. The Judge Advocate General, however, was also required to give extremely careful directions about the approach of the Board to the evidence, if they found, as they did, that the post McGowan evidence was unreliable. If the Board was allowed to treat the first statement as admissible evidence, it should have been directed that they had to be sure that the allegation in it was true notwithstanding the complainant’s own direct testimony that it was not, and that, in any event, just because it was a very different account (submission rather than resistance) that could very well bear on the question of the defendant’s state of mind, and it would also bring into question the complainant’s consumption of alcohol and the possibility that it may have led her to behave differently from the way she would have done if entirely sober. Without laying down any formalised straitjacket for the directions which the Board should have been given, the directions which were given were not as full and complete as, in the very unusual circumstances of this case, they required to be. 45. In our judgment this conviction is unsafe, and must be quashed.

2007_06_22-1146.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1471/data.xml

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[2004] EWCA Crim 3102

EWCA_Crim_3102

supreme_court

Neutral Citation Number: [2004] EWCA Crim 3102 Case No: 2004/03662/B3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CARDIFF CROWN COURT His Honour Judge Morris Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/12/2004 Before : LORD JUSTICE DYSON MR JUSTICE GRIGSON and THE RECORDER of MANCHESTER - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - DOROTHY GERTRUDE EVANS Appellant - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2004] EWCA Crim 3102 Case No: 2004/03662/B3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CARDIFF CROWN COURT His Honour Judge Morris Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/12/2004 Before : LORD JUSTICE DYSON MR JUSTICE GRIGSON and THE RECORDER of MANCHESTER - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - DOROTHY GERTRUDE EVANS Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Peter Davies (instructed by the Crown Prosecution Service ) for the Respondent Mr Huw Evans of Counsel (instructed by Messrs Hodson Parsons James and Vaux ) for the Appellant Hearing dates : 10 th November 2004 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Dyson (giving the judgment of the court): Introduction 1. On the 25 th May 2004 in the Crown Court at Cardiff the appellant was convicted of acting in breach of a restraining order contrary to section 5(5) of the Protection from Harassment Act 1997 (“ the 1997 Act ”). On the 6 th August, she was sentenced to pay a fine of £1000, or in default to serve 45 days imprisonment. She appeals against conviction by leave of the single judge. Section 5 of the Act, so far as material, provides: “(1) A court sentencing or otherwise dealing with a person (“the defendant”) convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section. (2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which – amounts to harassment, or will cause a fear of violence, prohibit the defendant from doing anything described in the order. … (4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order. (5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.” The facts 2. On the 8 th November 1999, the appellant was convicted at the Cwmbran Magistrates’ Court of three offences of harassment by threatening her neighbours, and a restraining order was made against her in these terms: “You shall not:- be abusive by words or actions towards Miss Margaret Jones, Mr Peter Kenyon, Mr Julian Edwards and their respective families. enter in any way onto the property of Miss Margaret Jones, Mr Peter Kenyon or Mr Julian Edwards. Cause any waste material to be deposited on the land of Miss Jones, Mr Kenyon or Mr Edwards.” 3. At all material times, the appellant (who is now 78 years of age) has lived at No. 93 Park Crescent, Abergavenny and Andrea Edwards has lived next door at No. 91. Mrs Edwards has at all material times been the wife of, and lived with, the Mr Edwards referred to in the restraining order. 4. The indictment contained 6 counts of acting in breach of the restraining order. The appellant was acquitted on counts 3 and 6 at the direction of the judge and acquitted by the jury on counts 2,4 and 5. The facts relevant to count 1 are as follows. On 4 th February 2003, Mr Falconer, a plumber, came to No. 91 to repair Mrs Edwards’ washing machine. He parked his van in the street hard up against the rear of Mrs Edwards’ car. As soon as he arrived, she became stressed because whenever she had visitors, the appellant would block their cars in with her car. So bad were relations between the neighbours that Mr and Mrs Edwards had fixed a CCTV camera on the outside of their house so that they could view the activities of the appellant. Shortly after the arrival of Mr Falconer, Mrs Edwards started to view the screen. She saw the appellant drive her car (which was already parked in the street) about 10 feet forward so as to be close up against the back of Mr Falconer’s van. The result was that his van was totally blocked between the rear of the car of Mrs Edwards and the front of the appellant’s car. Mrs Edwards went out to move her own car and drove round the block because she did not want the appellant to know that she had been inconvenienced. She was upset because this type of conduct had happened frequently. 5. At the close of the prosecution case, Mr Huw Evans submitted on behalf of the appellant that there was no case to answer. His principal submission was that, on a common sense and fair interpretation of the restraining order, parking the car too close to the van of Mr Falconer did not amount to “abusive action”. He also submitted that in the circumstances of the case, it was obvious that, even if what the appellant did amounted to “abusive action”, she had a reasonable excuse for doing it, and accordingly could not be guilty of the offence. In rejecting this submission, the judge ruled as follows: “However, in respect of counts one and four I fear that the submission must fail. The argument has been very interesting upon each. Although these are two separate car parking incidents where the same overall conduct is alleged, there are distinctions to be drawn between these two counts. Nonetheless, at the end there seems to me to be ample video and oral evidence, sufficient to raise a prima facie case that here was a lady acting in breach of the Restraining Order without reasonable excuse and where a clear inference arises that she was intending to misuse or illtreat the recipients in each case, Mrs Edwards and Miss Jones, by conduct which it would be open to the Jury, if they see so fit, to regard as abusive in the widest application of that term. Abuse here is not to be confined simply to the utterance of words but also is, as a derivative of the verb “to abuse”, capable of including illtreatment or mistreatment. It will be for the Jury to say whether it is fair and proper nowadays to regard such conduct as abusive . They may or they may not but that is their task and not mine. Thus, in those circumstances, and for those reasons, the submission must fail on count one and count four.” 6. The appellant did not give evidence. Her daughter, Barbara Thomas did give evidence, but she was unable to say anything about the alleged offence since she was not present at the time. She said that she had lived with the appellant for 2 years, and confirmed that relations between the appellant and her neighbours were not good. 7. In the course of his summing up, the judge directed the jury as to the ingredients of the offence of acting in breach of a restraining order in the following terms: “In order to establish the offence in respect of any of these four counts the Prosecution must make you sure of four essential elements. First, that the Defendant has committed an act or carried out a piece of conduct which can properly be regarded as abusive. Secondly, that if so, that it was such an act or conduct that was aimed at or was towards, perhaps, the particular named person, being one of the named persons stipulated by the Magistrates as requiring protection from harassment. That is, one of the named persons in the Restraining Order. Thirdly, that if there was an abusive act or conduct and it was conduct towards a named person, then that act or conduct was in breach of the terms of the Restraining Order. The third goes hand in glove with the first and second elements, you may consider. And, fourthly, that, in any event, such act or conduct as was committed by the Defendant was committed by her without any reasonable excuse. You will recall that I told you that Section 5(5) of the governing Act of Parliament contained the expression that if the person named as the subject of the Restraining Order committed any act or conduct without any reasonable excuse which amounted to the terms of the Order, that was an offence. So, it is necessary for the Prosecution to prove that there was no reasonable excuse for any proven act or piece of conduct which may have been abusive and aimed at or towards one of the named persons. As to what is meant by “abusive” is entirely now for you to say. You represent the standards of right-thinking decent folk nowadays and it is for you to apply what you consider to be the appropriate contemporary meaning in modern day usage of the English language of the term “abusive”. Nonetheless, obviously it is derived from the verb “to abuse”. That can include, you may think, conduct such as shouting or saying foul language and offensive names at a particular person but, equally, although it is for you to say, you may find that it can also include the physical ill-treatment of a person, for example such as by striking them, or ill-treatment by neglecting them, perhaps, in the case of a child or something of that kind. But, in turn, again, I stress it being entirely for you to say, you may find that in modern parlance it is also capable of including ill-treatment generally of a person or towards a person. As to what is meant by “towards”, again, it is entirely for you to say, applying contemporary meanings of that word but, in the context of a breach of a Restraining Order alleged, you may think that it must mean conduct aimed at, in the sense of towards. In that context it should be noted that it is not necessary for the Prosecution to establish necessarily, although it depends on your view of the facts, that any such conduct or act was directly aimed at the named person. It would be sufficient if, on the evidence, it was clear to your satisfaction so that you were sure about it, that it was conduct which was aimed ultimately at the named person even though in the first instance it may have affected a third party. Thus, in the case of the car parking count, for example, you may find although it depends upon your construction of the word “towards”, that although it may be concluded that the conduct directly affected the tradesman in the first instance, it is possible for you to consider whether or not ultimately it was directed at, and therefore was towards in the appropriate construction of that word, either named person in the Order, being in count one’s case Mrs Edwards and in count four’s case Miss Jones. That will be entirely for you to say but, as I say, you must decide for yourselves what happened and then, having done so, decide whether any act or conduct established against Mrs Evans the Defendant can properly be construed as being abusive in modern terminology and, if so, whether it was conduct towards any person named in the Order.” The grounds of appeal 8. There are two grounds of appeal: (i) the judge should have allowed the submission of no case to answer, since no reasonable jury, properly directed, could have found that the act of driving a car in the way that we have described was an abusive action within the meaning of the restraining order; and (ii) in his summing, the judge should have directed the jury that, in determining whether the appellant had a reasonable excuse for doing what she did, they should have regard to how she might reasonably have understood the terms of the restraining order. The first of these grounds raises issues of some general importance in relation to the enforcement of restraining orders under the 1997 Act and analogous anti-social behaviour legislation. The first ground of appeal 9. Mr Huw Evans submits that on a common sense interpretation of the restraining order, the act of parking a car too close to Mr Falconer’s van could not amount to an “abusive action” within the meaning of the order. Mrs Edwards could have allowed Mr Falconer to speak to the appellant when he needed to move his van. There was no suggestion that she had ever refused to move her car if requested to do so. She did no more than park her car up to the white line which was painted on the pavement and which, as a matter of convention, marked the parking boundary between the two neighbours. The phrase “abusive actions” is not clear and unambiguous, and should therefore be given a narrow interpretation. The first limb of the restraining order should in any event be given a narrow interpretation, since otherwise the second and third limbs are redundant. 10. We start with the uncontroversial proposition that no court should grant an injunction whose terms are not readily understandable. A restraining order is analogous to an injunction. So too is an anti-social behaviour order: as was said by this court in R v Parkin 3 February 2004 [2004] EWCA Crim 287 : “The terms of the order must be precise and capable of being understood by the offender”. But there was no appeal against the restraining order made against the appellant on the 8 th November 1999. In these circumstances, even if the phrase “abusive actions” were considered to be objectionably imprecise and even unintelligible, we do not see how that would afford a ground of appeal against the conviction. 11. Nevertheless, the question of interpretation remains: how should the judge and jury have approached the question of the meaning of the phrase “abusive actions” in the present case? We consider that the answer is provided by Cozens v Brutus [1973] AC 854 . The issue in that case was whether certain conduct of a person who attended a tennis match at Wimbledon was “insulting behaviour” whereby a breach of the peace was likely to be occasioned contrary to section 5 of the Public Order Act 1936 . Section 5 provided that: “Any person who…..uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace…..shall be guilty of an offence”. The justices held that his behaviour was not insulting and dismissed the information. The prosecutor’s appeal was allowed by the Divisional Court, who expressed their view as to the meaning of “insulting behaviour” and held that, on the provisional findings of the justices, the offence had been established. The appeal was allowed by the House of Lords. 12. In a famous passage at p 861C, Lord Reid said: “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.” 13. Later, when applying this approach to the facts of the case, Lord Reid said (p 862E): “Therefore vigorous and it may be distasteful or unmannerly speech or behaviour is permitted so long as it does not go beyond any one of three limits. It must not be threatening. It must not be abusive. It must not be insulting. I see no reason why any of these should be construed as having a specially wide or a specially narrow meaning. They are all limits easily recognisable by the ordinary man. Free speech is not impaired by ruling them out. But before a man can be convicted it must be clearly shown that one or more of them has been disregarded. We were referred to a number of dictionary meanings of “insult” such as treating with insolence or contempt or indignity or derision or dishonour or offensive disrespect. Many things otherwise unobjectionable may be said or done in an insulting way. There can be no definition. But an ordinary sensible man knows an insult when he sees or hears it.” 14. The dictum that the meaning of ordinary words is not a question of law was described as “well-known but ineffectual” by DW Elliott in an article entitled “Brutus v Cozens: Decline and Fall”: [1989] Crim L R 323. But it was recently endorsed and explained by the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR, [2003] UKHL 44 . The issue there was whether a social security claimant could “prepare a cooked meal for himself” within the meaning of the relevant statute. Having referred to the speech of Lord Reid in Brutus v Cozens , Lord Hoffmann said at para 23: “23. I think that these observations have been given a much wider meaning than the author intended. Lord Reid was in my opinion making two very pertinent points. First, he was drawing attention to a feature of language; namely, that many words or phrases are linguistically irreducible in the sense that any attempt to elucidate a sentence by replacing them with synonyms will change rather than explain its meaning. Lord Kilbrandon made the same point in his reference to Dr Johnson, at p 867. On the other hand, Lord Reid insisted that, whether the statute used simple words or difficult ones, its construction was a question of law. 24. Lord Reid was here making the well-known distinction between the meaning of a word, which depends upon conventions known to the ordinary speaker of English or ascertainable from a dictionary, and the meaning which the author of an utterance appears to have intended to convey by using that word in a sentence. The latter depends not only upon the conventional meanings of the words used but also upon syntax, context and background. The meaning of an English word is not a question of law because it does not in itself have any legal significance. It is the meaning to be ascribed to the intention of the notional legislator in using that word which is a statement of law. It is because of the nature of language that, in trying to ascertain the legislator’s meaning, it is seldom helpful to make additions or substitutions in the actual language he has used. 25. Lord Reid’s second point is made in the last sentence of the passage I have quoted, when he says that the question of whether the facts found by the tribunal count as “insulting” for the purposes of the statute is a question of fact. There is a good deal of high authority for saying that the question of whether the facts as found or admitted fall one side or the other of some conceptual line drawn by the law is a question of fact: see, for example, Edwards v Bairstow [1956] AC 14 and O’Kelly v Trusthouse Forte plc [1984] QB 90. What this means in practice is that an appellate court with jurisdiction to entertain appeals only on questions of law will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgment. “ 15. In our judgment, the observations by Lord Reid and Lord Hoffmann apply equally to the interpretation of a court order as they do to a statute. We can see no basis for drawing a distinction between them. In each case, the question whether a word or phrase is being used in its ordinary sense or in a special sense is a question of law. But if as a matter of law the word or phrase is being used in its ordinary sense, then it is for the tribunal of fact to apply that meaning to the facts as found. 16. It is inherent in this approach that the application of words which bear their ordinary meaning to the same set of facts by different tribunals can yield different results. In Cozens v Brutus , the Divisional Court took a different view from the justices as to whether the conduct of the appellant was “insulting behaviour”. But the phrase “insulting behaviour” bore its ordinary meaning, and despite the criminal law context, was not to be construed as having a specially wide or specially narrow meaning. Its limits were “easily recognisable by the ordinary man” (Lord Reid). The words “permit of ready comprehension” and “convey of themselves a meaning which the ordinary citizen can well understand” (Lord Morris of Borthy-Gest). For the purposes of the present appeal, it is a striking feature of that case that section 5 of the 1936 Act made it an offence to use “ abusive or insulting words or behaviour” (emphasis added). It is, therefore, reasonable to suppose that, if the defendant had been charged with abusive behaviour with intent to provoke a breach of the peace, the House of Lords would have adopted the same approach to the meaning of the phrase “abusive behaviour” as they did to the meaning of “insulting behaviour”. 17. Another example of the same approach to the meaning of ordinary words in a criminal context is to be found in R v Associated Octel Co Ltd [1996] 1 WLR 1543 . The defendant employer was convicted of failing to “conduct his undertaking in such a way as to ensure…that persons in his employment…are not ..exposed to risks to their health or safety”. The activity in question had been entrusted by the defendant to an independent contractor. The issue was whether the activity nevertheless was part of its undertaking. Various courts had attempted definitions of the phrase “conduct his undertaking”. Lord Hoffmann gave the leading speech and said (p 1548H) that it was wrong to try to find some formula to take the place of the simple words of the statute. Whether the activity which had caused the risk amounted to part of the conduct by the employer of his undertaking must in each case be a question of fact. There would be borderline cases. In the instant case, the question of whether the tank was part of the employer’s undertaking was one of fact which should have been left to the jury. 18. It is clear, therefore, that the criminal context is not a reason for giving a narrow or strained meaning to words which bear their ordinary meaning. The application of that meaning to the facts should be left to the fact-finding tribunal. It can make no difference that the offence in this case was being abusive by action contrary to the terms of a restraining order, rather than contrary to a statutory provision which specifically prohibits such conduct. Either way, the approach elucidated in cases such as Cozens and Octel should be applied. 19. In the light of the guidance provided by these authorities, we have no doubt that the judge was right not to accede to the submission of no case to answer. There is no basis for ascribing a special meaning to the phrase “abusive actions”. Mr Evans has suggested no such special meaning. There was no need to give this ordinary English phrase a specially narrow or strained meaning. The application of the phrase to the facts of the case was a question of fact. The judge was required to withdraw this issue from the jury only if he considered that no reasonable jury could have found as a fact that the act of parking the car in the way that we have described was an abusive action directed at Mrs Edwards. In our judgment, the judge was quite right not to withdraw the issue from the jury. They saw the video and would have been entitled to conclude that what the appellant did was done out of spite in order to annoy Mrs Edwards, and that, against the background of the history of the relationship between these neighbours, it was abusive action. There was no need to give the phrase a specially narrow or specially wide interpretation. 20. We do not consider that the phrase is ambiguous or so vague as to be beyond the understanding of the ordinary person. It is no more uncertain than “insulting behaviour”. As we have pointed out, it is implicit in the decisions to which we have referred that the inherent lack of precision in such concepts as insulting and abusive behaviour does not require them to be interpreted narrowly even though the context is that of the criminal law. If the terms of restraining orders were interpreted narrowly, there would be a real danger that the obvious aim of the 1997 Act would be subverted. It cannot have been the intention of Parliament that the phrase “prohibit the defendant from doing anything described in the order” requires the court to specify with great exactitude the precise conduct which is prohibited. Harassment can and does take many forms. A determined defendant who has been found guilty of harassment is prohibited from committing a particular kind of harassment is likely to find a different way of harassing the target of his or her conduct. In order to make this jurisdiction effective, it is necessary to give courts the power to prohibit conduct in reasonably general terms. 21. It is of some significance that a defendant who is alleged to have acted in breach of a restraining order contrary to section 5(5) of the 1997 Act has the protection that the prosecution must prove that he or she has acted “without reasonable excuse”. Thus, for example, there may be cases where there is room for legitimate differences of view as to the meaning of a restraining order. If in such a case the defendant raises the issue that he or she believed that the conduct of which complaint is made was permitted by the order, the prosecution will have to prove that he or she did not have reasonable excuse for the prohibited conduct. Acting under a reasonable misapprehension as to the scope and meaning of the order is capable of being a reasonable excuse for acting in a manner which is prohibited by the order. 22. Finally, we turn to Mr Evans’ argument based on the redundancy of the second and third limbs of the restraining order. The first answer to this point is that arguments based on redundancy attribute to the draftsman a skill, acuity and passion for precision and economy of language that is often unjustified. Those who draft court orders should not necessarily be treated as if they are parliamentary draftsmen. But even in relation to the latter, Lord Hoffmann said in Walker v Centaur Clothing Ltd [2000] 1 WLR 799 , 805D: “I seldom think that an argument from redundancy carries great weight, even in a Finance Act. It is not unusual for Parliament to say expressly what the courts would have inferred anyway.” But secondly and in any event, we are not persuaded that the second and third limbs of the restraining order are redundant if the first limb is given a reasonably broad interpretation. The second limb is precise and unequivocal. It prohibits the appellant from entering on the property of the specified persons for any reason whatsoever. Similarly, the third limb in relation to causing the depositing of waste material on their land. Not all such actions would necessarily be regarded by a jury as abusive. For example, entering on the land of a neighbour to deliver a misdirected letter might well not be regarded as abusive. Accordingly, we reject the argument based on redundancy. 23. It follows that the first ground of appeal fails. The second ground of appeal 24. It is accepted on behalf of the appellant that in his summing up the judge did direct the jury that they had to be sure that her conduct was without any reasonable excuse. This is clear from the passage we have cited at para 7 above. What he did not do, however, was to give them any guidance as to what was capable of amounting to a reasonable excuse or as to how they should approach this issue. In our judgment, this criticism of the summing up is without foundation. It was for the appellant to raise the evidential issue of reasonable excuse, and then for the prosecution to prove lack of reasonable excuse. If the appellant had raised the issue, for example by giving evidence that she believed that the restraining order permitted her to act as she did, then the prosecution would have had to satisfy the jury that this belief (if held) was not a reasonable excuse. In that event, it would have been incumbent on the judge to direct the jury as to how they should approach this part of the case. 25. But the appellant did not, either by giving evidence or in any other way, raise the issue of reasonable excuse. In these circumstances, it is difficult to see what the judge could have done other than to direct the jury that they must be satisfied that the prosecution had proved lack of reasonable excuse. And this he did. There was no material on which he could have founded a specific direction on this issue. 26. The second ground of appeal must be rejected. Conclusion 27. It follows that for the reasons that we have sought to give, the appeal must be dismissed.

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EWCA_Crim_1088

crown_court

Neutral Citation Number: [2022] EWCA Crim 1088 Case No: 202100853 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Bate T2014-7298 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/07/2022 Before: LORD JUSTICE HOLROYDE, THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) MR JUSTICE JOHNSON and MRS JUSTICE HILL - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - T'SHAI ENNIS Applicant - - - - - - -

Neutral Citation Number: [2022] EWCA Crim 1088 Case No: 202100853 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Bate T2014-7298 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/07/2022 Before: LORD JUSTICE HOLROYDE, THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) MR JUSTICE JOHNSON and MRS JUSTICE HILL - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - T'SHAI ENNIS Applicant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dr Felicity Gerry QC (instructed by G T Stewart Solicitors and Associates ) for the Appellant Hearing date: 14 July 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. Covid-19 Protocol: this judgment was handed down by the judge remotely by circulation to the parties’ representatives by email and release to The National Archives. The date and time of hand-down is 2.00pm on 29 July 2022 MRS JUSTICE HILL: 1. On 30 March 2015 at the Central Criminal Court the applicant (then aged 19) was unanimously convicted of murder (Count 1) and wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 (Count 2). His co-accused Idris Daud and Ayman Koshin were also convicted of both offences. On 23 April 2015 the applicant was sentenced to custody for life for the murder, with 20 years specified as the minimum term under section 269(2) of the Criminal Justice Act 2003. A concurrent sentence of 9 years’ detention was imposed for the wounding with intent. 2. The applicant renews his application for an extension of time (2,157 days, around 5 years 11 months) to seek leave to appeal against conviction, following a refusal by the single judge. He also seeks leave pursuant to section 23 of the Criminal Appeal Act 1968 to introduce several items of fresh evidence. 3. We have had the benefit of written and oral submissions from Dr Gerry QC on behalf of the applicant and a Respondent’s Notice drafted by Mr Tim Cray QC. He had been leading counsel for the prosecution at the trial. The applicant was represented at trial by Queens Counsel and a junior, but Dr Gerry QC was only instructed by him after the trial. The factual background 4. At approximately 12.33am on Sunday 29 June 2014, three men took a taxi from Wembley to Harlesden. Shortly after 1.00am, two of the men got out of the taxi and attacked Kamar Hewitt (aged 19), on Park Parade in Harlesden. Mr Hewitt and David Headlam (also aged 19) had been walking home after a night out. Mr Hewitt sustained a knife wound to his left thigh. Two of the males from the taxi then chased Mr Headlam on foot for around 400 metres. The two men cornered Mr Headlam in the front garden of a property on Drayton Road and fatally stabbed him in the right thigh, as the occupant of the house watched on. The two assailants left Mr Headlam on the floor and returned to the same taxi, which had followed them to Drayton Road, and left the scene. 5. The attack was captured on CCTV and lasted a little over 30 seconds from when the deceased was chased to when the assailants left the scene in the taxi. Mr Headlam suffered two wounds to his right thigh which pierced a major artery and a further stab wound to his left thigh. In addition, he had a number of incised wounds or cuts to his face and head. The arterial wounds led to rapid collapse through blood loss, and he was pronounced dead at 3.15 that morning. 6. The applicant and his two co-accused had known each other for a number of years. The applicant described Daud as his best friend. 7. The applicant was arrested on 4 July 2014. He provided a prepared statement in interview, in which he denied the allegations, and said he was not present when the attacks took place and was not with anyone else who was involved in the attack. He declined to answer any further questions in the interview. The trial 8. The prosecution case relied on witness evidence from Mr Hewitt, the taxi driver and people who had witnessed the attacks, the aftermath and the taxi leaving the scene; CCTV evidence; medical evidence as to the injuries to the deceased; and agreed facts including as to calls made to the taxi firms and a visit to Northwick Hospital by the applicant and Daud between 10.19pm and 11.33pm on the night of the murder. 9. A PC Clark also provided evidence of knives he had found on 26 June 2014 in some bushes by a tree at the back of some flats on Kings Drive, Wembley. One was wrapped in a purple paisley patterned bandana and the other in a blue patterned bandana. 10. The prosecution case was that this was a premediated joint enterprise knife attack and that the taxi was stopped minutes into the journey to retrieve weapons for that intended attack, from the location where PC Clark had found knives earlier in the week. It was said that the male who stayed in the taxi whilst the deceased was attacked was equally guilty because he was there to control the taxi and ensure that it could be used as the getaway vehicle. 11. The applicant accepted at trial that he had lied in the prepared statement he had given at the outset of his interview. His case at trial was that he was present in the taxi that went to Harlesden, but he denied playing a part in the assaults perpetrated by the other two passengers, who were Daud, and a male named Dills. He said he was the person who remained in the taxi throughout. He asked the taxi driver to stop on Drayton Road because he could see Daud and Dills in the front garden of a house kicking and punching. He denied being the person seen by one of the eyewitnesses as he was wearing a red t-shirt. 12. Daud’s case was that the third male in the taxi was Koshin. It was the applicant and Koshin who had left the taxi. He saw a male running and the applicant and Koshin running after him. He asked the taxi to turn round towards them. 13. Koshin denied presence and said he was at home in Wembley when the incident occurred. He said the third male was Dills, who had accidentally taken possession of his phone earlier in the evening. 14. It follows that the applicant advanced a “full cut-throat” defence with his friend Daud, with each blaming the other for being one of the two people who left the taxi and played a direct role in the attacks. He also supported his co-defendant Koshin as to his role, which Daud did not. 15. As to the earlier stop of the taxi, the applicant gave evidence that he got out of the taxi minutes into the journey to pick up some cannabis he had hidden. He did not go to where the knives had been found two days earlier and did not pick up knives, whether independently of anything that Daud was doing or otherwise. He texted Koshin’s girlfriend in the taxi pretending to be Koshin and used Koshin’s phone to call a person called Ahmed whilst he was out of the taxi walking towards the cannabis. 16. The applicant said he did not know how the events turned in to a fight. He was not trying to help Koshin with his evidence - he was more likely to try and help Daud. When they returned to Kings Drive after the incident, he and Dills had an argument about drawing attention to Daud, because Daud was on an electronic tag. Dills told him to calm down and said it was only a “punch up”. He then left and dropped Koshin’s phone back at Koshin’s house. He then returned to where Daud was, got a taxi to Ealing Broadway and then a train back home to Slough. The extension of time application 17. The applicant seeks an extension of time of approximately 5 years, 11 months. A chronology has been provided by the applicant’s solicitors in support of this application. This shows that the applicant’s current solicitors, who did not represent him at the trial, were first instructed by him from September to December 2015, five months after he was sentenced. An appeal file was opened following initial enquires with his trial solicitors. During 2016 a conference took place with the applicant and the relevant transcripts, education and medical records were obtained. 2017-2020 were spent securing funding from the Legal Aid Agency, obtaining the expert evidence from Dr Marriott and Dr Hulley and securing advice from counsel. The detailed application for leave to appeal the conviction out of time was lodged in March 2021. 18. In our view the timescales in this chronology pose a number of difficulties for the application to extend time. However, in fairness to the applicant we have focussed our attention on considering the merits of the grounds. Consideration of the merits is, in any event, an integral part of determining whether it is in the interests of justice to extend time. The fresh evidence applications 19. Under s ection 23(1)(c) of the Criminal Appeal Act 1968 this court may, if it thinks it necessary or expedient in the interests of justice, receive any evidence which was not adduced in the proceedings from which the appeal lies. Under section 23(2), the Court shall, in considering whether to receive any evidence, have regard in particular to (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. 20. The applicant seeks to admit by way of fresh evidence two reports from Dr Sinead Marriott, Consultant Clinical Psychologist, dated 18 December 2017 and 29 October 2021. 21. These expert reports are plainly capable of belief. They would, in principle, have been admissible in the original trial. On that basis the factors set out in sections 23(2)(a) and (c) would militate in favour of the reports evidence being admitted. 22. As to factor (d), t he applicant has provided McCook evidence from his junior counsel at trial, Christos Georgiou, Higher Court Advocate. He explains that he and the solicitor with conduct of the trial had represented the applicant in five other criminal matters before the trial, over at least a four-year period. During their large number of meetings with the applicant, he was consistently able to provide clear, coherent and detailed instructions and respond to challenges to his account with reference to the evidence. The applicant saw the court matron regularly during the trial, largely for stomach issues, and did not raise any difficulties with his comprehension or mental health during the trial. His mother, who regularly attended court and had close contact with the legal team, did not raise any concerns. They therefore had no reason to consider that it was necessary to have him examined by a psychologist. 23. The applicant has provided a Gogana affidavit from Julie Ann Boyle, his current solicitor. She indicates that her firm, unlike the applicant’s previous solicitors, considered that it was necessary to have the applicant assessed by a psychologist. She implicitly casts doubt on whether Mr Georgiou’s explanation is “reasonable” for the purposes of section 23(d). She states that the applicant’s educational and medical records, which showed a long history of learning difficulties and a diagnosis of ADHD, made it “apparent that the applicant should have been psychologically assessed as it was likely that he was disadvantaged during the trial process”. 24. The fact is that Mr Georgiou and his team did not take this step, and we do not consider it necessary to decide whether they should have done so. Rather, we have focussed our consideration on the applicability of factor (b) to Dr Marriott’s evidence, namely whether it appears to the Court that the evidence may afford any ground for allowing the appeal. 25. The applicant also seeks to admit as fresh evidence a report from Dr Susie Hulley and Dr Tara Young. This report provides some commentary on the applicant’s case, but the bulk of the report is evidence of wider contextual issues relating to joint enterprise, silence, the use of rap/drill/grime music and videos in criminal trials and race. While this report is capable of belief under section 28(2)(a), it is highly unlikely that it would have been admissible in full at the trial under section 28(2)(c). As to section 28(2)(d), Mr Georgiou’s evidence offers a partial explanation for why this evidence was not adduced at the trial , namely that the trial pre-dated the Supreme Court’s restatement of the principles relating to joint enterprise in R v Jogee [2016] UKSC 8; [2017] AC 387. This explanation does not embrace all the other topics covered by Dr Hulley and Dr Young, and we note that the issues around the admissibility of rap music in criminal trials are not new. However, we again consider it appropriate to concentrate on the applicability of factor (b) to this expert report. 26. The applicant has provided a series of published or draft academic articles on joint enterprise, silence, and the relevance of rap evidence. These do not constitute fresh ‘evidence’ for the purposes of section 23. The grounds of appeal and discussion Ground 1: The jury was wrongly directed with respect to joint enterprise 27. The grounds and written submissions on behalf of the applicant focussed on the argument that the jury had been wrongly directed on joint enterprise in light of Jogee . At the outset of the hearing Dr Gerry QC indicated that her primary position was that this was not in fact a “change in law” case. However, her submissions reiterated concerns over the trial judge’s approach to the issue of foresight, the central issue raised by Jogee , and so this was clearly her secondary position. 28. We deal first with the submissions that the judge’s directions to the jury were flawed based on the law as it was at the time of the trial. 29. First , it was argued that the directions to the jury were insufficiently clear as to the concept of joint enterprise in particular with respect to the prosecution case against the man in the taxi. We disagree. The jury was told that: “The essence of joint responsibility for the targeted crimes alleged here is that the Defendant whose case you are considering shared with one or more of his co-accused the intention to commit that offence or foresaw the risk of such harm and took some active part , underlined, so as to achieve that contemplated aim. One can lead and others can follow but mere presence at the scene without prior involvement in the criminal enterprise is insufficient” (see pages 16B-16C of the summing).” Further, there were only two people shown on the CCTV directly engaged in the stabbing of the deceased. The jury was directed that the prosecution case against the third man was that his role in the “common enterprise” was: “…helping control the taxi to ensure it arrived at the scene, giving directions within the scope of the joint enterprise so that it could be then a getaway vehicle” such that “there are a variety of ways…in which a third person in the context of this case can be involved without offering the physical violence directly to the victim” (page 16D-E of the summing up).” We are satisfied that those directions were correct in law and were sufficient in the circumstances of this case. 30. Second , it was argued that the judge did not direct the jury sufficiently clearly as to whether there was a plan between the defendants, what the nature of any such plan was, whether it was an intentional plan, what the applicant knew of the plan and whether he acted in accordance with it. 31. We cannot accept this. The judge referred to the following “key factual issues” for the jury in relation to each of the defendants who they found went to Harlesden that night: “1) Did he bring the knife in the taxi? 2) Did he know that either or both of the other passengers were carrying knives?” (page 17E of the summing up). 32. Further, the judge directed the jury as follows in the steps to verdict with respect to count 1: “ To convict any defendant of either murder as indicted on count 1 or the lesser alternative of manslaughter you must first be sure that the individual defendant whose case you are considering knew that one or more of the three passengers in the taxi was armed with a knife before these Harlesden assaults began. Of course, that knowledge could be in two ways: either because he was armed himself or because he knew one of his co-passengers was. If he was not there at all, of course, the issue does not arise. If you are not sure that was so, that he had that knowledge of his armed expedition, then you acquit the defendant of count 1. If you are sure he knew this fact, then part (b) is engaged, and you go next to it. Part (b) sets out in a similar structured way to count 2 the necessary elements: physical and mental. To convict the defendant whose case you’re considering of murder you must be sure that (1) he joined in the contemplated assault on David Headlam. In other words he was present and participated in the contemplated assault in the ways portrayed; and (2) at the time he did so, and then either of two things under (2), (i) he intended that David Headlam would be caused at least grievous, ie really serious bodily harm or (ii) he realised that one or more of the other assailants might intentionally do David Headlam a grievous injury; and (3) which is the final causation element, David Headlam thereafter sustained the stab wounds to his right thigh that caused his death” (page 19C-G of the summing up). 33. At times Dr Gerry QC appeared to suggest that “merely” staying in the taxi would be insufficient to render the applicant “criminally culpable”. However, this was not the prosecution case, which relied on the taxi driver’s evidence of the directions he was given by the person who remained in the vehicle, so as to facilitate the escape from the scene. 34. Third , criticism was made of the judge for initially directing the jury, erroneously, that it was not in dispute that this was a premeditated, armed attack. However, the judge later corrected this to make clear to the jury that the applicant and Daud did not accept this characterisation of the attack and invited the jury to amend their written directions to this effect (see the discussion with counsel, the correction and the summary of the applicant’s case at pages 64C-67B, 80E-F and 101G-102B of the summing up). It is unrealistic to suggest that the jury should have been discharged at this point rather than the correction made. We note that the experienced counsel who represented the applicant at the trial did not make any application to discharge the jury. 35. For these reasons we do not consider it arguable that the summing up was wrong, based on the law as it was before Jogee . The ground of appeal framed in this way crystallised during the trial and so it is also very substantially out of time, with no fresh evidence or good reason in support of an application to extend time. 36. We turn now to the submissions based on the change in law effected by Jogee . In that case, the Supreme Court rejected the principle that if two people set out to commit an offence and, in the course of it, one of them committed another offence, the second person is guilty as an accessory to the second crime if he foresaw its commission by the principal as a possibility, but neither intended it, nor agreed to it, expressly or tacitly, even on a conditional basis. The Court held that the correct approach to foresight is to treat it as evidence (albeit sometimes strong evidence) of intent to assist or encourage, but not as an inevitable yardstick of common purpose. 37. In dividuals affected by the restatement of the law of joint enterprise in Jogee are not automatically entitled to leave to appeal their conviction out of time. Rather they must demonstrate that a “substantial injustice” would be caused if the grant of exceptional leave was denied. This is a high threshold. In order to determine whether it has been met, the court will have regard to the strength of the case advanced that a change in the law would in fact have made a difference. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct: R v Johnson [2016] EWCA Crim 1613 and R v Crilly [2018] EWCA Crim 168. 38. Dr Gerry QC contended that the substantial injustice hurdle sets far too high a threshold, which has proved impossible to surmount in practice. It a mounts to a lack of access to justice and involves the surreptitious return of the proviso previously set out in section 2(1) of the Criminal Appeal Act 1968 which was repealed on 1 January 1996. Further, it is discriminatory. Dr Hulley and Dr Young’s work illustrates the over-representation of black and ethnic minority men in cohorts of people convicted under joint enterprise principles. She argued that the test also raises particular issues relating to the convictions of those with disabilities which may have complicated the approach to foresight. 39. However, the substantial injustice test is well established. It flows directly from the Supreme Court’s observations as to the rationale for it in Jogee . The approach to cases of this nature was clearly set out by this Court in Johnson . We do not consider that there is any basis for us to depart from it. It follows that to the extent that the applicant relies on the change of law since Jogee , in order to justify an exceptional grant of leave to appeal his conviction, he must show substantial injustice. 40. In our view the evidence against the applicant was strong. He had travelled from Slough to the Wembley area on the evening before the attack and had met with both his co-defendants by 9.30pm. He attended hospital with Daud, to assist in giving Daud a reason for being in breach of his curfew. There was the evidence that the taxi stopped minutes into the journey, which the jury could conclude was to retrieve the knives which PC Clark had in fact already seized. There was evidence that all three men had left the taxi when Mr Hewitt was stabbed before one returned to the taxi. There was evidence that the man who did so was controlling the taxi in the ways described above. The applicant was also found guilty of other, though less serious, criminal conduct. 41. More fundamentally, however, this was not a case that depended on foreseeability or events developing unexpectedly. Rather, there was strong evidence of a planned knife attack and it could therefore easily be inferred by the jury that all the defendants, including the applicant, shared the intent to do at least really serious harm. 42. As we have already set out, the directions (pages 16B-16F of the summing up) and the steps to verdict (pages 19C-19E) made clear to the jury that they had to be sure that this was a planned knife attack and that knowledge that a knife or knives were being taken to the scene was a necessary element of conviction. The judge later strengthened the initial directions by making clear that an accessory present at the scene had to have the same intent as the principal (page 102). 43. For these reasons we do not consider that the restatement in the law effected by Jogee would have made any difference in this case. The applicant therefore cannot meet the test set by Johnson and Crilly . It follows that we see no basis on which Ground 1 could be argued. Ground 2: The evidence relating to rap music and bandanas should not have been admitted 44. This ground relates to a rap video involving the applicant and Daud. The applicant wrote the lyrics in April 2013 and the lyrics included talk of the enemy being stabbed such as “He got cut so I know that he’s scheming; Fucking with my niggas that’s the reason; I’ll creep up on your yard, leave your brains on the ceilin’”. The video of it was made on 21 June 2014 on the Chalkhill Estate. Daud organised the video and the applicant was the main artist within it. The blue bandanas in the videos were said to be similar to those in which the knives had been found by PC Clark and to evidence a “sort of badge of association” between the Defendants based on photographs found on Koshin’s phone. 45. On 25 June 2014, Daud informed the person who made the video that the name of the track was “Chalkhill Catch You Slipping”. At 9.35pm on 28 June 2014 Daud sent a text message to that person asking if the video was going to be uploaded that night. Daud was told that it would be, and it was uploaded to YouTube the next day. On the evening of 29 June 2014, the applicant and Daud watched the video together. 46. The applicant gave evidence that the rap video had been made because he and Daud shared an interest in the same music. The lyrics were not an indication of past or future violence and were merely part of the genre of that type of music. He said that on the evening of 29 June 2014 Daud attended his house unexpectedly. They watched their rap video on YouTube. He had no idea what had happened in Harlesden apart from some messages of sympathy he saw on Facebook for the deceased. He did not connect it to the incident he had seen from the back of the taxi. 47. According to Mr Georgiou a computer expert was instructed on the applicant’s behalf and established that the lyrics had been written in 2013, which the prosecution accepted. It appears that leading counsel initially sought to argue that the video should not be played to the jury but then conceded that it was admissible because it was connected with the facts of the offence within the meaning of section 98(a) of the Criminal Justice Act 2003. It was not admitted as generic “bad character” evidence. 48. The judge directed the jury that the prosecution’s contention was that “from the lyrics and the attitude displayed on the video” the Defendants were “letting the world know they were not to be messed with” and that the “central message” was that “anybody who crossed them would wind up dead”. The judge also told the jury that the applicant and Daud emphatically denied this interpretation of the video and said that the video was simply an example of the rap genre and was not sinister (see pages 31A-E of the summing up). 49. At section 10 of their report, Dr Hulley and Dr Young refer to this passage in the summing up. They argue that there is a risk of police officers, prosecutors and juries misinterpreting rap lyrics; that presenting rap (and its derivatives, such as grime and drill) music and videos in court is embedded in racial biases; and that doing so presents a significant risk of disproportionate, prejudicial impact on black defendants. These broad themes are developed further in ‘The Irrelevance of Rap’ by Dr Abenaa Owusu-Bempah, Associate Professor or Law, London School of Economics (provided by the applicant to the Court in draft form in December 2021 but published in 2022 at Criminal Law Review [2022], 2, 130-151). Dr Gerry QC also argued that the type of clothing in question (bandanas) carries with it racial tropes. 50. The judge told the jury that the prosecution had accepted that “viewed alone” the video “could be regarded…as either harmless boasting or merely an expression of that particular genre of youthful musical activity” (page 36B-C of the summing up). 51. However, the evidence in this case relating to the rap video went well beyond potentially murderous lyrics, a fact that Dr Hulley and Dr Young do not engage with. The prosecution argued that there was a “chilling significance” to the timings, given that three hours before the knife attacks the three Defendants were together, not far from where PC Clark had recovered the knives two days before, and enquired whether the video would be uploaded to YouTube imminently (page 36C-E of the summing up). There was also the evidence as to when the video had been made (relatively shortly before the killing) and watched by the applicant and Daud (soon after it). We agree with the single judge that the evidence of the proximity in time to the killing at which the video was made, uploaded and viewed was evidence capable of establishing knowledge and planning. The bandanas also provided potential links between the video and the knives found by PC Clark and between the defendants. 52. In light of these factors the trial judge was entitled to conclude that the rap video evidence was “to do with the alleged facts of the offence with which the defendant is charged” under section 98(a) such that it was admissible. The inferences to be drawn from it, if any, were a matter for the jury. We reiterate that this material was not admitted as generic bad character evidence but rather had a specific relevance to the issues in the trial. 53. We also note that the judge gave the jury careful directions as to the relevance of the rap video evidence, summarising the inferences the prosecution drew from the video and the applicant’s evidence about it (see pages 29H-32F, 35G-37A and 110F-111C of the summing up). 54. For these reasons we do not consider it arguable that the fact that this evidence went before the jury renders the applicant’s conviction unsafe, even if the evidence contained in the report from Dr Hulley and Dr Young was admitted. Ground 3: The adverse inference direction in relation to silence should not have been given 55. Dr Gerry QC argued that the adverse inference direction on silence should not have been given by the judge for two reasons. 56. First , the fresh expert psychology evidence from Dr Marriott indicates that the applicant’s cognitive abilities fall between the Low (Borderline) to Low Average ability ranges and place him between 4-10 per cent of the population. He meets the criteria for diagnoses of ASD and ADHD. This evidence is directly relevant to how reasonable it was for him to decline to answer questions and should have been placed before the jury. 57. Second , Dr Hulley and Dr Young’s research suggests that for those convicted of serious violence using joint enterprise, the fear of legal risks was the most common explanation for silence in police interviews; and that the feeling of powerlessness which encouraged many young people to stay silent was particularly so for young black men. 58. As to Dr Marriott’s evidence, the mere fact of a subsequent diagnosis, after trial, of a mental disorder such as ASD or ADHD will not necessarily result in a successful appeal. The task of the Court is to identify the issues at trial to which the fresh evidence would have been relevant and to assess the likely evidence on those issues: R v Grant-Murray and others [2017] EWCA Crim 1228 at [53]. 59. This was a case where the applicant accepted that he lied in his prepared statement but said that he did so to protect himself and Daud from Dills because he feared what might happen if he was a ‘snitch’. He answered no questions in his police interview and provided no defence case statement. He then gave a detailed account in his evidence at trial that differed from that in his prepared statement. 60. In those circumstances, the judge was entitled to give the adverse inference direction based on the information available to him. The judge also gave a full Lucas direction, ensuring the jury were properly directed as to how to approach the question of why the applicant had lied in his prepared statement. It is unrealistic to suggest that the jury should not have been able to draw inferences from these facts. 61. In our view Dr Marriott’s evidence would not properly have resulted in the judge declining to give the adverse inference direction. Her evidence does not suggest that the applicant’s cognitive abilities necessarily impaired his decisions with respect to the various accounts he gave and did not give. Further, we do not accept the submission that even if her evidence had been provided to the jury it would “inevitably” have led to the conclusion that it was reasonable for the applicant to have remained silent in his interview. 62. As to the evidence of Dr Hulley and Dr Young, the decision as to whether to give an adverse inference direction and the details of it must be made on the basis of the facts in each case. We are not persuaded that the judge’s decision to give the direction in this case was wrong, or that further direction as to the reasons why the applicant may have stayed silent were required. 63. We therefore do not consider that this ground is arguable even if the evidence contained in the further reports relied on were admitted. Ground 4: The summing up contained inappropriate judicial comment 64. Dr Gerry QC confirmed in submissions that the only judicial comment on which she relied for the purposes of this ground was the judge’s initial comment that it was not in dispute that this was a premeditated, armed attack. We have considered this in detail under Ground 1 and do not consider it arguable that the conviction was unsafe for the reasons given there. This ground is also very substantially out of time. Ground 5: The circumstantial evidence direction was inadequate 65. It was argued that the circumstantial evidence direction given as part of the summing up (page 13D-G of the summing up) was inadequate and should have been clearer on eliminating other possibilities, in accordance with R v Kilbourne [1973] AC 729. It was submitted that the summing up was, overall, imbalanced. 66. We consider that the direction given was appropriate for the facts of the case, which did not rely solely on circumstantial evidence, not least as the a pplicant admitted presence at the scene. Other than his complicity in the attacks, the only other realistic possibility was that the a pplicant remained in the taxi unaware of what the other two men were doing. The jury was well aware that this was his case. We consider that the summing up was overall fair. 67. We therefore do not consider this ground arguable, and again it faces significant time limits difficulties. Ground 6: The fresh evidence of the applicant’s disabilities was relevant to the issues the jury had to consider and indicates procedural unfairness 68. Dr Gerry QC argued that the jury should have received evidence relating to the applicant’s cognitive disabilities, as these would have affected his ability to plan a common purpose or be complicit with others. 69. Dr Marriott’s evidence suggests that the applicant’s low IQ, ADHD autism, suggestibility and compliance would have impacted significantly on his ability to foresee the risk of an offence happening. However, these cognitive difficulties are not at a level that would have afforded the applicant a defence to the charges against him. We agree with the prosecution’s interpretation of the reports that they do not suggest that the applicant was incapable of forming the requisite intent. Further, as explained above in the context of Ground 1, this was not a case that relied on foreseeability or events developing unexpectedly. 70. In terms of procedural fairness, the applicant’s grounds argued that knowledge of the applicant’s conditions would have allowed for a more relaxed court environment and a lower likelihood that the trial judge would treat his evidence as “anecdotal”. 71. While Dr Marriott’s evidence is that the applicant may have masked some of his difficulties, neither his legal team who had known him for some time, nor his mother, identified any concerns about his ability to follow proceedings or about him giving evidence or, nor did he raise any himself. He was able to give evidence and advance a complex cut-throat defence. For example, in cross-examination he advanced his case by responding to the prosecution’s suggestions about the rap lyrics, explained how he had used Koshin’s phone and responded to the case put on behalf of Daud (see pages 31D, 60G-61B, 85D-F and 95H-96C of the summing up). The judge referred to the “anecdotal” details of his account in evidence. However, this was not a general comment about the applicant’s demeanour but an observation that he, and his co-defendants, had provided many more details in evidence at trial than when questioned by the police. 72. We therefore do not consider this ground arguable, even if Dr Marriott’s evidence were admitted. Conclusion 73. For these reasons we are satisfied, despite the detailed submissions of Dr Gerry QC, that none of the grounds of appeal are arguable. It follows that no purpose would be served by our granting an extension of time, even if the applicant were able to overcome the difficulties he faces in that regard, because an appeal would have no prospect of success. This renewed application is therefore refused.

2022_07_29-5410.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1088/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1088

2cfa6396762dfb1cf3e19f9f2fcf4ce64f886266f9226e975531619139cec780

[2013] EWCA Crim 115

EWCA_Crim_115

crown_court

Neutral Citation Number: [2013] EWCA Crim 115 Case No: 2012/5837/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday 16 January 2013 B e f o r e : LORD JUSTICE TREACY MR JUSTICE SAUNDERS SIR DAVID CLARKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v PERRY FLACK - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Str

Neutral Citation Number: [2013] EWCA Crim 115 Case No: 2012/5837/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday 16 January 2013 B e f o r e : LORD JUSTICE TREACY MR JUSTICE SAUNDERS SIR DAVID CLARKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v PERRY FLACK - - - - - - - - - - - - - - - - - - - - - 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 Stradling appeared on behalf of the Appellant Miss C Schutzer-Weissmann appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE SAUNDERS: This appellant appeals against a sentence of 29 months' imprisonment imposed for an offence of burglary of a dwelling-house at Snaresbrook Crown Court on 17th September 2012. He appeals by leave of the single judge. He had previously pleaded guilty on 10th September but the case had been adjourned for the trial of the issue as to whether or not the premises broken into by the appellant was indeed a dwelling. The judge concluded that it was. One of the grounds of appeal in this case is that the judge's decision to have a Newton hearing was wrong. 2. The issue as to whether the property was a dwelling-house was important as if proved against the appellant that it was and he did not dispute entering the property and stealing from there, he became subject to the minimum sentence provisions of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 . If the provisions would come into effect on conviction, then the offence was indictable only and had to be sent to the Crown Court by the magistrates. 3. The issue as to whether the property was a dwelling was raised before the magistrates but on our present view once the charge included the averment that the property was a dwelling, which it did, the magistrates did not have jurisdiction and they properly sent the case to the Crown Court. We emphasise that this matter has not been fully argued before us and the prosecution has suggested that the magistrates may have some power to inquire into the matter, but as we say for the present we are doubtful as to whether such a power exists. In any event, the matter was sent as an indictable only offence to the Crown Court. At the Crown Court the appellant pleaded guilty to a charge including the averment that the burglary was of a dwelling, but the case was put off for trial of an issue which ultimately took place. 4. We say at once that in our judgment it was wrong to have a trial of an issue. If it was not admitted that the burglary was of a dwelling-house, that should have been determined by a jury. Under section 9(3) of the Theft Act the maximum sentence for burglary of a dwelling-house is 14 years, whereas for any other offence of burglary it is 10 years. Applying the decision of the House of Lords in Courtie [1984] AC 463 to that situation, a count alleging burglary of a dwelling-house should significantly aver that the property was a dwelling-house and that allegation should be on a separate count on the indictment to a non-dwelling-house burglary. That principle has been applied to cases concerning dwelling-house burglaries by this court in the case of R v Gary miller [2010] EWCA Crim. 809. If the appellant did not admit that the building was a dwelling then the defendant should have entered a not guilty plea, there should have been two alternative counts on the indictment, one of which included the averment that the property was a dwelling-house and one of which did not, and the jury would have to decide. As we have already said, that did not happen in this case. The Crown thought the appellant pleaded guilty to burglary of a dwelling-house and accordingly that is what he had to be sentenced for. 5. The result of the Newton hearing was that the judge did conclude that the property was a dwelling-house. Any other finding would have contradicted the plea the appellant had entered and as we have already said a Newton hearing was not the way in which this issue should have been resolved. 6. The background to how this issue arose can be readily identified by a brief recital of the facts. The burglary was of a property at 26 Northwood Gardens, Barkingside. This building was clearly designed as, and normally was used as a dwelling-house. We have seen, as did the judge, a photograph of the dwelling. It looks like an ordinary domestic property with net curtains on all the windows, save for the fact that there is a skip outside the front door, in which case there is a large amount of material, that it perhaps not a surprising thing to find. There is no evidence before the court and was no evidence before the court as to what, if any, furniture was in it, whether anyone was actually living there at the time or had temporarily moved out for repairs, or whether the property was being done up for the purposes of being let. The evidence as to that was non-existent. We do know that the owner at the time was living elsewhere. At the time the appellant broke in, which was about 2 o'clock in the afternoon on 29th June 2012, the only person inside was a builder who was laying flooring in the bathroom and at that time the house was having a new bathroom and kitchen fitted. 7. The appellant having got into the premises took an iPhone belonging to the builder from the porch and ran off with it. He was pursued by the builder. The builder informed a passing police officer and the appellant was arrested and the iPhone was recovered from nearby. 8. In interview the appellant said that the property was not a dwelling but was a building site. We have been invited to give guidance as to how the issue of whether a property as a dwelling-house should be approached, when and where and if it is in dispute. This is not a suitable case in which to do that. In an appropriate case it would be a matter for a jury to determine and the directions given by the judge could, if appropriate, be considered by this court. It is however largely a question of fact in each individual case which the jury would have to decide. 9. It would be open when a defendant is committed to the Crown Court on a dwelling-house burglary on the three strikes principle for an application to be made by the defence to the Crown Court to dismiss the charge if they contend there was not sufficient evidence on the papers to support the allegation that the property was a dwelling-house. 10. The plea of guilty having been entered to the burglary of a dwelling, that is the basis on which the sentencing judge should have proceeded and on which we must proceed. It is common ground that as a result of this offence the appellant was liable to be sentenced to a minimum term of three years' custody for it, unless there were particular circumstances relating either to the appellant or the offences which would make it unjust in all the circumstances to impose such a sentence. Credit for a plea of guilty in those circumstances would be limited to 20 per cent. 11. A number of matters have been referred to us which it is suggested mean that this should be taken out of the qualifying for section 111 and that it would be unjust in all the circumstances to impose such a minimum sentence. Those matters are that the appellant was only just 16 at the time he committed the first qualifying offence of burglary, that on the facts of this particular burglary it was the opportunistic taking of a phone which was left accessible to a thief and it may well be that access to the premises was more easily made because the premises were being renovated. It is argued that it lacks many of the harmful features of a normal domestic burglary. There was no evidence that the owner had left property in the premises and there was no evidence that there was an invasion of a home, which is one of the most harmful features of a domestic burglary. The other two qualifying burglaries were burglaries of entry with intent and no property had been taken on those occasions. Another of the burglaries related to premises which were undergoing repair at the time the burglary took place. As to whether anyone was actually living in the premises at the time we simply do not know; it was repairs taking place to the roof. 12. Combining all those matters together, we do come to the conclusion that it would be unjust to impose a minimum sentence of three years in those circumstances. We take the view, having considered all those matters, that in our judgment the appropriate starting point to have been taken by the judge was one of two years' imprisonment. Clearly the fact that it is the third burglary is of significance in increasing the starting point and this appellant is a man, as can be seen, who has a record in the past for similar sorts of offences. Also we do not regard it in any way as being a trivial offence and the theft of an iPhone can be an extremely serious matter for the loser. 13. In all those circumstances, we consider that the appropriate starting point is one of two years' imprisonment. As we are not applying the minimum sentence provisions the restriction on credit for plea to 20 per cent does not apply - see Darling [2010] 1 Cr.App.R (S) 63. On the other hand, the appellant was caught red-handed and we therefore think that the appropriate discount in all those circumstances to allow for the early plea of guilty is one of 25 per cent. Accordingly, the original sentence is quashed and reduced to a sentence of 18 months' imprisonment. The time spent in custody serving the other sentence will count towards that sentence. To that extent the appeal is allowed.

2013_01_16-3102.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/115/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/115

90b14669900464087f13ca988c6b7f4ccee3984820538939fd013b7e67fee2dc

[2017] EWCA Crim 618

EWCA_Crim_618

crown_court

Neutral Citation Number: [2017] EWCA Crim 618 Case No: 201604109 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/04/2017 Before : LORD JUSTICE TREACY MR JUSTICE GREEN MR JUSTICE PICKEN - - - - - - - - - - - - - - - - - - - - - Between : R Crown - and - Jason Leon Billington Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms A Earnshaw appeared on behalf of the Appellant Mr P O’Shea appeared on beh

Neutral Citation Number: [2017] EWCA Crim 618 Case No: 201604109 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/04/2017 Before : LORD JUSTICE TREACY MR JUSTICE GREEN MR JUSTICE PICKEN - - - - - - - - - - - - - - - - - - - - - Between : R Crown - and - Jason Leon Billington Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms A Earnshaw appeared on behalf of the Appellant Mr P O’Shea appeared on behalf of the Crown Hearing dates: 12 th April 2017 - - - - - - - - - - - - - - - - - - - - - Approved Judgment ............................. MR JUSTICE GREEN MR JUSTICE GREEN: A. Introduction 1. The appellant pleaded guilty to two counts of making a threat to kill and assault occasioning actual bodily harm. 2. On 26 August 2016, the appellant was sentenced to an extended sentence of 6 years pursuant to section 226 A of the Criminal Justice Act 2003 made up of a custodial term of 4 years and an extension period of 2 years. He was subject to a victim surcharge order. B. The Facts 3. In December 2015, the appellant was released upon licence from prison. In February 2016, he met with the complainant in Barnsley town centre on a night out. It was the first time they had seen each other for approximately three and a half years. Towards the end of February 2016, the appellant and the complainant entered into a relationship but from the outset the appellant showed signs of controlling behaviour. He would, for instance, frequently check the complainant's mobile telephone and Facebook account. 4. The complainant planned a night out with friends. For a few days prior to this the appellant was up tight and unhappy. He objected to the clothes the complainant was intending to wear. On 8 April, he was in a bad mood and upon checking the complainant's telephone he was concerned that she had received a telephone call from a male friend. At all events, at 9.15 pm the complainant left home to meet friends in the town centre. The appellant remained in the property. During the evening he sent a series of abusive text messages to her. 5. She returned home at about 2.30 am to find the appellant awake. She made her way upstairs in order to use the lavatory. The appellant followed her with a glass of water in his hand which he then poured over the complainant's head. He refilled the glass and poured it once again over her. He was shouting at her, saying that she had left him on his own and failed to contact him all night. The complainant made her way into the bedroom. The appellant followed her and swept several perfume bottles from a dresser top onto the floor. He went downstairs and he obtained a long kitchen knife and returned upstairs. He held the knife to the complainant's throat, pressing it against her skin. 6. Shortly afterwards, however, he removed the knife and they both went downstairs. But over the course of the next 3 hours, the appellant angrily inflicted violence upon the complainant. He blamed her for his temper. He told her that she had "fucked his head up". On a number of occasions he placed his hands around her throat, applying considerable pressure to the point where the complainant felt unable to breath. She was genuinely in fear that he would kill her. The appellant at one point dragged her off the sofa by her legs onto the floor. He threatened to hit her over the head with an empty wine bottle but she managed to take that away from him. He picked up a DVD player and threw it at the complainant twice, on one occasion hitting her upon the head. He punched her around the head and body. He bit her nose, lip and arm. 7. Eventually, the complainant managed to break free and she ran from the front door but the appellant grabbed her as she reached the end of the driveway and pulled her back inside by her hair. Once inside he locked the door. He had knives in his possession. He told her that she was going to go nowhere, that he was going to kill her and spend the rest of his life in prison. The complainant attempted to calm the appellant down; she hugged him and told him that she loved him. 8. At about 5.30 am, the appellant went upstairs to collect his phone. The complainant opened the downstairs living room window and she jumped through it head first, landing on some broken draws in the garden. The appellant followed her through the window and he jumped upon her preventing her escape. But she managed to convince him to go back inside without her and then she fled to the address of a neighbour, where the police were alerted. 9. The injuries sustained by the complainant were photographed by the police and they were shown to the judge as part of the sentencing exercise. 10. The appellant was arrested and indicated that he was prepared to admit everything except holding a knife to the complainant's throat or false imprisonment. However, once the questioning commenced he gave no comment responses to questions in interview and he became extremely agitated. He stood up clenching his fists and he demanded to leave the interview room. 11. In a victim impact statement the complainant explained that she had suffered from domestic violence before and that she had recovered and endeavoured to rebuild her life. She said that she would do the same again but she had never been so frightened in all of her life and she genuinely feared that the appellant was going to kill her. She was frightened that when the appellant was released he would come looking for her and that her future and that of her son would be uncertain due to his behaviour. The complainant supported the prosecution. 12. Subsequently, the complainant issued a statement in which she said that she was reconciled with the appellant. She did not believe that prison was the right place for him. She stated that the appellant had not asked her to drop the charges and she had not been coerced into the making of the statement by any third party. She did not, however, retract the allegations against him. 13. The appellant has a lengthy list of 12 convictions for 19 offences. These spanned the period 2008 onwards. On 14 June 2013, at Sheffield Crown Court, the appellant was imprisoned for 5 years for burglary and assault occasioning actual bodily harm upon a previous partner. He was subjected to a restraining order protecting the partner from harassment and to a further order. He was released on licence in December 2015 just shortly prior to the events which have given rise to the present case. C. The Sentence 14. The appellant came to be sentenced on 26 August 2016. At the hearing, the Recorder indicated that he would furnish the appellant and his lawyers with written reasons for the sentence that he intended to impose. He then imposed the sentence which is the subject matter of the present appeal. 15. On 29 August 2016, the Recorder issued reasons for the sentence. The reasons are detailed, lengthy and carefully crafted. He recited the relevant facts, including the appellant's history of previous convictions. He observed that the most recent of the offences included an offence of assault occasioning actually bodily harm which resulted in the appellant being subject to a restraining order made in perpetuity. The Recorder cited from the pre-sentence report, which included the conclusion that the appellant sought to justify his actions by playing down the seriousness of the charges and blaming his mental health rather than accepting responsibility for his conduct. 16. The Recorder noted that the assessment was based upon an assumption that the offending was unconnected to drugs or alcohol. However, the Recorder rejected this conclusion in the light of a report from a psychiatrist noting that the appellant claimed to have consumed 4 litres of lager and 2 litres of wine on the evening of the offence and the evidence of the arresting officer was that he was drunk when arrested. 17. The Recorder was influenced by the fact that the appellant was on licence for a similar offence committed against his former partner when the present offence was committed. In this connection, the Recorder noted the observations of the author of the pre-sentence report that the current offence reflected an escalation in seriousness and that there was therefore a high risk of re-offending in a violent manner if the appellant failed to engage with mental health services and failed to understand the triggers for his violent conduct. The appellant was assessed as a high risk of committing serious harm. 18. The Recorder set out a detailed analysis of the conditions precedent for an extended sentence under section 226 A and under section 229 CJA 2003 in relation to dangerousness. In relation to the latter, the judge considered the circumstances of the index offences and whether that contributed to an emerging pattern of behaviour. He assessed the psychiatric evidence submitted to the court from a Dr Pawar dated 18 May 2016 which set out the appellant's long history of anger lapses from schooldays onwards. The judge concluded that the appellant was a needy individual prone to jealousy and insecurity whilst at the same time capable of over possessiveness and controlling behaviour. He set out his reasons for this conclusion and he endorsed the views set out in the pre sentence report that the appellant was a serious risk to the public. D. Grounds of Challenge to the Sentence 19. It is now argued before us that the sentence was manifestly excessive. The following facts and matters are relied upon in this regard. First, there is the fact that the appellant pleaded guilty and it is said that there is no reason why full credit should not have been granted for the guilty plea instead of the reduced 20 per cent accorded by the judge. 20. Second, it is said that in the light of case law it was wrong to reach a sentence of 4 years for the offence of threats to kill. There was no other justification for an extended sentence of the sort imposed given that the appellant did not have relevant previous convictions. The case did not reflect a pattern of violent repeat offending. The offence had been committed following the appellant resorting to alcohol and drugs to cope with the grieving process following the death of his father. The appellant was engaging with mental health services and he had the ability to change. The appellant showed remorse. 21. In granting leave, the single judge observed that it was most unusual and contrary to current sentencing practices for a judge to fail to give reasons in public and only to supply reasons privately to the appellant's lawyers. It is said that given the retraction on the part of the complainant and the mitigation advanced on the appellant's behalf it was arguable that the custodial term of 4 years after a reduction for the guilty plea was manifestly excessive. E. Discussion: Sentence 22. We turn now to consider the issues arising in the appeal. We start with the sentence imposed. There are two preliminary points to make. First, there is a degree of confusion as to the starting point taken by the judge and whether this was 6 or 5 years. In the written sentencing remarks both are mentioned. It would appear, in light of the fact that credit of 20 per cent was accorded for the guilty plea to threats to kill, that the Recorder had a starting point of 5 years in mind. This is consonant with the custodial term being one of 4 years. The second preliminary point is that there is no criticism made by the appellant of the analysis performed by the Recorder of the conditions for the imposition of an extended sentence pursuant to 226A CJA 2003 . The issue arising is one of the exercise by the Recorder of his sentencing judgment and discretion. 23. In our judgment, the Recorder imposed a lawful sentence. The following facts are, in our view, relevant. 24. First, the present offence was committed literally weeks after the appellant was released from prison for offences which included domestic violence and whilst he was on licence. The present offence was both a repeat and an escalation of previous domestic violence. The offence involved sustained and significant violence over a period of hours involving the use of a knife and strangling and threats to kill, which in the circumstances were credible and which were advanced with serious intent. The violence involved multiple sites of injury. The outburst of violence was also the combination of longer term controlling behaviour. 25. Second, it appears from the evidence that the offence was fuelled by alcohol in the same way as the earlier incidents of domestic violence had been. There is no evidence before the court to suggest that the appellant can control his temper or refrain from use of alcohol and attempts to assist the appellant in this regard in the past have failed. 26. Third, we reject any submission, insofar as it is maintained, that the appellant cooperated with police. He was unresponsive and essentially belligerent. He did not admit the full extent of the alleged criminality. 27. Fourth, we can find no error in approach for assessment of dangerousness by the judge. The judge's conclusions were consistent with the findings arrived at by the psychiatrist and by the author of the PSR. On the evidence before the court, the judge was entitled to conclude that the appellant reflected a high risk of reoffending in a violent manner and that he was and remained a high risk of serious harm towards adults and with children who witnessed incidents of domestic violence. 28. Fifth, the judge granted a 20 per cent discount for the late tendering of the plea. We see no material or significant error in the approach adopted. 29. Sixth, we would observe that the complainant's statement, to which we have referred, carries little weight. She did not retract the allegations which were made and it is ultimately for the court to determine the appropriate sentence. 30. In these circumstances, we conclude that the sentence imposed was a lawful one for the judge to impose and we reject the appeal against sentence. F. The Importance of Delivering Sentencing Remarks in Public 31. We turn finally to an issue which has troubled both the Registrar of Criminal Appeals and the Crown in their written submissions to this Court, which is the failure of the Recorder to issue his sentencing remarks in public. 32. We commend the judge for reducing his remarks to writing and for the care that he adopted in their preparation. We recognise that sentencing can frequently be complex and technical and the analysis which must occur in relation to an extended sentence might well be a good illustration of the sort of sentence where a judge feels the need to adjourn to consider carefully either sentence or how it should be explained. But where this happens it is crucial that the articulation of the reasoning takes place orally in public. This is to ensure that the public at large, which includes the press who might cover a sentencing exercise, are made fully aware of the reasons for the sentence passed. Transparency in the working of the justice system is integral to the maintenance of public confidence in that system. Transparency is equally critical in ensuring that the defendant knows exactly why the sentence has been passed and it facilitates consideration of possible grounds of appeal. For similar reasons it enables the Crown to know whether they should oppose an appeal and, if so, upon what basis and even whether they would wish to challenge a sentence as unduly lenient. We would draw attention to section 174(2) Criminal Justice Act 2003 which when referring to the duty to give reasons for sentences stipulates that such reasons must be given in “ open court ” and using “ … ordinary language and in general terms ”. This is for the salutary reasons of policy that we have identified. 33. None of this, of course, prevents the increasingly common practice of the judge handing out printed copies of the sentencing remarks to those in court once they have been delivered. In the present case, we are told that the sentencing remarks were neither read out in public nor sent to the Crown. Indeed, we are informed by the Crown that they obtained copies of the judge's remarks only in the course of preparing for this appeal. 34. With respect to the Recorder, who otherwise clearly devoted considerable care and attention to the preparation of his remarks, this was a serious failure in good practice.

2017_04_12-3973.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/618/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/618

52846c0c221c1c451dfd30a365260317bb9d7b49c0f581dde7f1eebe04f70f2f

[2010] EWCA Crim 1327

EWCA_Crim_1327

crown_court

Neutral Citation Number: [2010] EWCA Crim 1327 Case No: 200902336D2/200902335D2/200902333D2 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HHJ GULLICK T20087130/T20087097 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/06/2010 Before : LORD JUSTICE PITCHFORD MRS JUSTICE RAFFERTY and HHJ GOLDSTONE QC - - - - - - - - - - - - - - - - - - - - - Between : ASHIQ HUSSAIN, MOHAMMED KAMRAN & MOHAMMED SHABRAN Appellants - and - Regina Respondent - - - - - - - - - - - - -

Neutral Citation Number: [2010] EWCA Crim 1327 Case No: 200902336D2/200902335D2/200902333D2 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HHJ GULLICK T20087130/T20087097 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/06/2010 Before : LORD JUSTICE PITCHFORD MRS JUSTICE RAFFERTY and HHJ GOLDSTONE QC - - - - - - - - - - - - - - - - - - - - - Between : ASHIQ HUSSAIN, MOHAMMED KAMRAN & MOHAMMED SHABRAN Appellants - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Malcolm Bishop QC and Charnjit Singh Jutla (instructed by Javid Arshad & Co - Solicitors) for the Appellant Hussain Mr James Hill QC (instructed by Javid Arshad & Co - Solicitors) for the Appellant Kamran Mr David Nathan QC and Shufqat Mahmood Khan (instructed by Altaf - Solicitors) for the Appellant Shabran Mr Andrew Kershaw (instructed by CPS - Bradford ) for the Respondent Hearing date: 19th May 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. Ashiq Hussain (‘Ashiq’) appeals his conviction with the leave of the single judge. Mohammed Shabran (‘Shabran’) and Mohammed Kamran (‘Kamran’) renew their applications for an extension of time for leave to appeal against their convictions. We granted the extension of time and leave to appeal and proceeded to hear their appeals. 2. The appellants, with others, appeared at Bradford Crown Court on 22 January 2009 for trial upon an indictment containing five counts. Count 1 charged them that between 22 and 25 October 2007 they conspired to commit murder. Count 3, in the alternative, charged them with conspiracy to cause grievous bodily harm with intent. Count 2 charged Mohammed Shabran and Mohammed Kamran with having a firearm with intent to commit murder. Count 4, in the alternative, charged them with having a firearm with intent to cause grievous bodily harm with intent. Count 5 charged Ashiq, Shabran and Kamran with conspiracy to pervert the course of justice. 3. Following a trial before HHJ Gullick, the Recorder of Bradford, and a jury which lasted some ten weeks, on 3 April 2006 Ashiq was convicted unanimously by eleven remaining jurors upon count 3. Shabran and Kamran were unanimously convicted of counts 3 and 4. Each of them was found not guilty upon counts 1, 2 and 5. 4. These convictions arose from serious incidents of violence in Bishop Street, Bradford on 23 and 24 October 2007. Two families had fallen out, probably over the failed marriage between Shabran and a female member of the complainants’ family. 5. Ashiq was the owner of a hand car wash company called Motorwise, with premises at Toller Lane, Bradford. Shabran and Kamran are his nephews. They worked for Motorwise as did Ibrar Hussain, Ashiq’s younger brother, and Amar Hussain, a friend of Shabran. Nazim Hussain, a taxi driver, lived at the same address as Shabran. 6. Ibrar Hussain, Amar Hussain and Nazim Hussain were found not guilty of counts 1 and 3 upon the direction of the judge at the close of the prosecution case. Ibrar Hussain was also found not guilty on the judges’ direction of count 5. During the course of his summing up the judge directed a verdict of not guilty in relation to Nazim Hussain upon count 5 and he was discharged. The jury returned a not guilty verdict upon count 5 in the case of Amar Hussain. Ashiq, Shabran and Kamran were each sentenced to 12 years imprisonment. 7. Turning to the complainants’ family, Abid Hussain owned a taxi firm called Fast Cars at Stanningley Road, Pudsey. Shafique Hussain is his son. Abid has three brothers, Sajid Hussain, Mohammed Razaq and Adalat Hussain. 8. The appellants’ family lived or worked in the Bingley Road area of Bradford. The complainants lived in the Bishop Street area. These districts were both situated in the north west of Bradford but separated by the suburb of Heaton. 9. The prosecution case was that at about 10 pm on 23 October 2007 a confrontation occurred between two groups at the BP petrol station on Howarth Road, also in the north west of Bradford, not far from Motorwise. Shamran, Amar and Ansar Hussain arrived in a Volkswagen Golf. Shafique Hussain, Zakar Khan and a friend, Jameel Sodhigar, were in Shafique’s father’s blue Mercedes. Threats were exchanged. It was the prosecution case that Shabran threatened to shoot Shafique and that CCTV evidence showed him making a gesture with two fingers to indicate a pistol or other hand gun aimed in Shafique’s direction. It was further alleged that Shabran telephoned his brother Kamran in the presence of the others, telling him to shoot the blue Mercedes next time he saw it. At 10.12 pm Shabran telephoned his uncle Ashiq. Cell site evidence placed Ashiq in the Keighley area. He returned to Bradford. 10. Shafique returned to his father’s taxi base in Stanningley Road, Pudsey. He spoke to Abid and then returned with Zakar Khan and Jameel Sodhigar to Bishop Street, where he lived. On their way, Shafique and Zakar Khan saw a waiting party with vehicles stationary on North Park Road. Ashiq Hussain, with his distinctive red Mercedes car, was among them. Jameel Sodhigar had supported this account in his witness statement but resiled from it in evidence. The prosecution was given leave to treat him as hostile. 11. According to Shafique, he was followed to Bishop Street by Ashiq and his followers. On arrival, Shafique, Zakar Khan and Jameel ran into the house. By now, other members of the complainants’ faction were in Bishop Street. Shortly afterwards, Ashiq’s red Mercedes, was attacked by unknown members of the appellants’ faction and set on fire. There was evidence that the driver of the red Mercedes was also attacked but managed to make his escape. There was a live issue at trial whether the driver of the red Mercedes was Ashiq. Ashiq claimed that he was not driving the car. There was evidence from defence witnesses that the driver was a chubby, bald man which did not match Ashiq’s description. He maintained that the driver must have been a friend of his called Saj, who had disappeared and from whom he had never heard again. The prosecution contended that Saj was a convenient invention. Mohammed Razaq gave evidence that Nazim Hussain pulled up outside 17 Bishop Street in his Mondeo taxi. He got out of the vehicle and smashed the windscreen of the blue Mercedes. Deprived of his car, it was the prosecution case that Ashiq climbed into Nazim Hussain’s taxi from where he co-ordinated following events in revenge for the destruction of his car. Abid Hussain claimed in evidence that Ashiq telephoned him with a threat that his son Shafique was going to be attacked. Ashiq was identified by witnesses who claimed either that he was the driver of or a passenger in Nazim’s taxi from which he issued threats towards Shafique and his group that he would be returning to shoot him. 12. At 1.05 am, two men wearing balaclavas ran into Bishop Street. One of them fired two shots injuring Sajid Hussain in the groin. The gunshots also wounded Wajid Hussain and Mohammed Shabid. It is probable that at least some of the injuries were caused by ricochet from the road surface. Shafique himself was unhurt. Witnesses identified the gunman as Shabran from his voice. Immediately after the shooting Shabran ran with the second man to a waiting car followed by Nisar Ahmed and Mohammed Razaq, both of whom identified Kamran as the getaway driver. 13. Count 5 charged the appellants with co-ordinated attempts, by attacks on property and telephone threats, to prevent witnesses giving evidence. We are informed by Mr Kershaw, counsel for the prosecution at trial, that there were difficulties with identification of those involved. 14. There were significant and material inconsistencies in the evidence between witnesses for the prosecution. There were further internal inconsistencies in the evidence of individual witnesses. In particular, the complainants’ faction was unprepared to accept any responsibility for the attack on Ashiq’s red Mercedes. As the learned judge observed during his ruling at the close of the prosecution case (page 9/13 Ruling): “All the prosecution witnesses to the principal events, with the possible exception of three, are related and can be said to be within the Bishop Street faction. It is said that all have demonstrably told lies, that they have all contradicted themselves and that they are all mutually contradictory. The lack of truly independent evidence is highlighted, and it is submitted that the overall picture is one of a large number of family members with scores to settle, colluding and perjuring themselves in order to seek the conviction of some or all of these defendants on serious criminal charges.” 15. Later, (page 12/3 Ruling) the judge continued: “Jameel Sadhagar, who was ultimately treated as a hostile witness, said in his evidence in chief that it was the Bishop Street faction who attacked the car with hockey sticks, snooker cues and so on, and that it was in fact Zakar Khan who set it on fire. He is the only witness who gives that account. All the other Bishop Street witnesses deny that they had anything to do with the attack on Ashiq Hussain’s red Mercedes.” 16. In the case of Amar Hussain, the judge concluded that there was no evidence of participation and he directed the jury to return verdicts of not guilty upon counts 1 and 3. The judge identified the following evidence in the case of Nazim Hussain, the taxi driver, as material to counts 1 and 3: i) He was identified as smashing the front windscreen of the Mercedes; ii) Witnesses identified him either as a driver or passenger in the taxi from which Ashiq Hussain made threats to shoot Shafique’s group; iii) There was telephone traffic between Nazim and other defendants before and after the shooting. Nevertheless the judge concluded that an inference that Nazim was implicated in the conspiracy to carry out a shooting was not properly available to the jury and he directed not guilty verdicts in Nazim’s case upon counts 1 and 3. This may be seen as a generous conclusion in favour of Nazim and one relevant to later events to which we shall need to refer. 17. As to count 5 in Nazim’s case, Nazim’s taxi was identified at traffic lights at the junction of Bingley Road and Howarth Road, close to the home of Nisar Ahmed, at or about the time when two vehicles had been set alight. Its position was consistent with involvement in those incidents. The judge, therefore, rejected a submission of no case to answer on count 5. Ashiq Hussain’s Grounds of Appeal 18. The Recorder commenced his summing up on 2 April 2009. At the luncheon adjournment on that day the judge was informed that a female member of the jury intended to take no further part in the trial. She had become disenchanted with the length of the trial and needed to find work. She was persuaded by a jury bailiff to remain in order to communicate her intention to the judge. She did this in the form of a letter. The judge had himself formed the view that the juror had become detached from the proceedings and seemed to be taking a token interest in his summing up. He took the view that, despite the defendants’ wishes to be tried by twelve jurors, the safer course was to discharge the juror. This ground of appeal was faintly advanced and we conclude that there is no justifiable criticism of the judge’s decision. 19. On the afternoon of 3 April the Recorder commenced a round up of the evidence in the case of each of the appellants in turn. At the close of the court’s sitting on that day he had almost completed his summary of the evidence in the case of Ashiq Hussain. Overnight, the judge clearly reviewed the evidence concerning Nazim Hussain upon count 5. He concluded that contrary to the view he had taken at the close of the prosecution case, the jury could not properly convict Nazim on count 5 and so directed them. A verdict of not guilty was returned and Nazim was discharged. 20. Counsel were asked by the judge (transcript of summing up, page 115/26) whether there was any material knock-on effect. In the temporary absence of Mr Malcolm Bishop QC, leading counsel for Ashiq Hussain, both at the trial and in the appeal, junior counsel, Mr Jutla, raised the possibility that Nazim might be called to give evidence on Ashiq’s behalf. Nazim had elected to give no evidence in his own defence. Mr Jutla submitted that if Nazim had been discharged at the close of the prosecution case he would have been a compellable witness on behalf of Ashiq. Mr Jutla sought an adjournment for the purpose of taking instructions and consulting Mr Bishop on the question whether an application should be made to re-open Ashiq’s case for the purpose of calling Nazim to give evidence. The judge replied (transcript page 116/1), “No, I am not going to allow you to. If you want to pursue it elsewhere you can.” 21. Mr Bishop submitted on Ashiq’s behalf that this created an unfairness to Ashiq Hussain which went to the safety of the verdict. 22. Mr Bishop accepted and averred that until Nazim was discharged on the second day of the summing up, he was not a compellable witness to whom Ashiq could have had access. As soon as Nazim was discharged, he became a compellable and relevant witness in Ashiq’s defence. Article 6(3)(b) ECHR provides: “(3) Everyone charged with a criminal offence has the following minimum rights: …….. (b) To have adequate time and facilities for the preparation of his defence. ….. (d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” 23. Mr Bishop relied upon the statement of Lord Steyn in R v A (2) [2001] UKHL 25 , [2002] 1 AC 45 , at paragraph 38, concerning the compatibility of section 41 Youth Justice and Criminal Evidence Act 1999 (limitations upon cross examination of complainants in sexual cases) with the fair trial of a defendant under Article 6. Lord Steyn said: “38. It is well established that the guarantee of fair trial under Article 6 is absolute: a conviction obtained in breach of it cannot stand, R v Forbes [2001] 2 WLR 1 , 13, para 24. The only balancing permitted is in respect of what the concept of a fair trial entails: here, account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play. The criteria for determining the test for proportionality have been analysed in similar terms in the case law of the European Court of Justice and the European Court of Human Rights. It is not necessary for us to reinvent the wheel. In Defreitas v Permanent Secretary of Ministry of Agriculture, Fishery, Lands and Housing [1999] 1 AC 69 Lord Clyde adopted a precise and concrete analysis of the criteria. In determining whether a limitation is arbritory or excessive a court should ask itself: “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.” The critical matter is the third criterion. Given the centrality of the right of a fair trial in the scheme of the convention, and giving due weight to the important legislative goal of countering the twin myths, the question is whether section 41 makes an excessive inroad into the guarantee of a fair trial.” 24. Lord Steyn was dealing with the concept of the fair trial in a very different context. Nevertheless, we accept Mr Bishop’s submission that it is axiomatic that when the trial judge has the discretion to grant an application in favour of a defendant who wishes to call a witness, the interests of justice including the fairness of the trial are of the first importance in the judgement as to how that discretion should be the exercised. 25. Under the common law of England and Wales it is well established that the trial judge enjoys the discretion whether to permit a defendant to re-open his case at any moment before the jury retires to consider its verdict, for the purpose of adducing further evidence. In Morrison [1911] 6 Cr App R 159 , the defence was permitted to adduce further evidence which had only just come to light following counsel’s closing speech. In Sanderson [1953] 1 WLR 392 the defendant was permitted to call a witness at the close of the summing up. In the present case the learned judge undoubtedly had the power to grant the application if he concluded that it was in the interests of justice to do so. The judge did not give reasons for his decision but it is not difficult to anticipate what they were. This trial had already overrun. One juror had been discharged. There was a risk that if the adjournment was permitted its length would be prolonged by the need for consultation between Mr Bishop and the accused, the need to take a witness statement from Nazim Hussain, and the need for the defence to make its decision whether Nazim should be called. That decision would almost certainly have required consultation with the other defence teams. If Nazim gave evidence, it was capable of having the effect not only of prolonging the trial but also, for reasons which will appear below, of requiring the judge to re-cast his directions to the jury in respect of Ashiq, Shabran and Kamran. The judge had heard the evidence implicating Nazim in the violent events taking place in Bishop Street. Nazim had elected not to give evidence in his own defence. It is not a surprise to us that the judge declined to open the door to further delay based upon such uncertainty. 26. It may be that the judge formed the instantaneous view that the prospect of Ashiq electing to call Nazim in his defence was minimal. While Nazim had been discharged from further consideration of counts 1, 3 and 5, that decision was made on the basis that, taking the prosecution case at its highest, namely Nazim’s involvement in events in Bishop Street (see paragraph 16 above and paragraph 36 below), the jury could not properly conclude that he was implicated in the conspiracies alleged. However, it is our view that, the defence having been asked whether the decision to discharge Nazim had an effect upon other defence cases and having been informed by Mr Jutla that there was such a possibility, the learned judge was somewhat peremptory in dismissing his application. The first step should have been, we consider, an inquiry as to what steps were required before Mr Jutla was in a position to indicate to the court whether an application would be made to re-open the defence case. Those inquiries would have been unlikely to take a prolonged period of time, and it may be that in consequence of the allowance of modest further time the prospect of an application would have been abandoned or, if maintained, granted without excessive disruption of the trial. In the absence of any explanation from the judge for his decision to refuse further time it seems to us at least arguable that the decision was unfair to the appellant Ashiq. That finding alone does not resolve his appeal, however. The decision for this court is whether, in the result, the judge’s decision had such an effect upon the fairness of Ashiq’s trial that the safety of the jury’s verdict is in question. There are, it seems to us, two issues which arise. The first is whether there was any reasonable prospect that, having considered his position, Ashiq would have instructed Mr Bishop or Mr Jutla to apply to re-open his case for the purpose of calling Nazim. The second is whether, if Nazim had been called to give evidence, his evidence could have had such an effect upon the jury’s consideration of Ashiq’s case that their verdict of guilty upon count 3 is arguably unsafe. It was common ground that Nazim’s evidence was relevant but was not, in view of the events which unfolded during the judge’s summing up, available to Ashiq at his trial. The issue for this court is whether Nazim’s evidence was capable of belief. For this purpose the court concluded that Nazim’s evidence should be received on appeal with a view to its admission under section 23 Criminal Appeal Act 1968 . For the purpose of making this assessment we were provided with copies of Nazim’s summary of interviews, with his defence case statement and with copies of the witness statement he made on 29 April 2009, three weeks or so after Ashiq’s conviction. 27. Nazim Hussain was interviewed under caution between 1.05 and 10.41 pm on 7 November 2007, that is, 14 days after the events he was then purporting to recall. In his first interview, he gave a detailed account to the effect that he had finished work at about 11 pm before picking up a takeaway from Mahmoud’s on Leeds Road, Bradford. He then drove to the Shell garage, also on Leeds Road, to eat his food. There, by chance, he had met Shabran and Amar at approx 11.30 pm. This would have been just over an hour after the confrontation between Shabran and Shafique at the BP garage. They chatted for about 10 – 15 minutes about a problem with Shabran’s car. As a result, Shabran decided to leave his car overnight at the garage and Nazim Hussain took both men to his and Shabran’s home at 15 Wensleydale Road. They arrived there at approximately midnight. There was no suggestion that the meeting at the Shell garage was pre-arranged. Nazim denied having received any prior telephone calls from Shabran. There is, however, incontrovertible telephone and cellsite evidence showing three calls from Shabran’s phone to Nazim Hussain’s phone at approximately 9.30 pm and a further three calls from Shabran to Nazim Hussain between 9.10 pm and 11.29 pm while Shabran was ‘on the move’ from Leeds to Bradford. Further, at 11.51 pm, Shabran’s phone made a call which was picked up by the server nearest to the Shell garage. As to the circumstances of the meeting at the garage, the defence statement is silent both as to whether or not it was planned and as to the presence of Amar. 28. Only in his witness statement made on 29 April 2009 (see paragraph 35 below) did Nazim mention receiving a call from Shabran at about 11 pm. We have no doubt that this change of account was made to accommodate the telephone evidence. The overwhelming inference to be drawn is that the meeting at the Shell garage was in fact pre-arranged and not an unlucky coincidence. Its significance for the jury would have been the availability of the further inference that Nazim was, in interview, consciously distancing himself from the occasion when he was informed by Shabran of earlier events at the BP garage in Haworth Road and plans to take the attack to Shafique and his family in Bishop Street. 29. As to the time at which he finished work, in his defence statement and witness statement, Nazim maintained, contrary to his account in interview, that he had finished work at approx 6.00 pm. 30. In his second interview, Nazim said he remembered being at the BP garage on Haworth Road at around 2.00 am because he had seen the police there. After that, he and ‘J’, his girlfriend who he had collected at about 12.30 am, had driven around until he dropped her off at around 2.45 am. He claimed to remember being at home before 4.00 am “for sure”. 31. In the third interview, he stated that he had heard on the evening of 24 October about the firing of the Mercedes car the night before. It follows that when he was being interviewed, he was well aware that the night about which he was being asked was the night before he had heard this news. 32. In the fourth interview, allegations of sightings and overt acts were put to him and denied. He suggested that he had been ‘fitted up’ but agreed that none of the witnesses had, to his knowledge, any grudge against him. 33. In the fifth interview, the sighting of his car at 4.14 am at the BP garage on Haworth Road was put to him (see paragraph 37 below). He accepted that he must have been there but still did not remember it. 34. In the sixth interview, 3½ hours after the conclusion of the fifth, Nazim was confronted with his girlfriend Jodie’s account of the events of 23 October 2007. Nazim had refused to give any contact details for her, maintaining initially that he did not know her surname despite, on his account, having been her boyfriend for several months. When he was told that any delay in giving information about her might lead to the inference that he had ‘primed her’, he said that he could not get her involved as her mother had been locked up. In our view, it is no coincidence that when the police did make contact with Jodie she undermined beyond recovery Nazim’s alibi for the night of 23/24 October. Her account was that on the night of 23 October, she and Nazim had a row on the phone and had ‘called things off’; as a result they had not gone out that night and had not made up until later the following day. Furthermore, it is our opinion that these events provided Nazim with a second reason for remembering with precision the night about which he was being questioned, namely the night he and Jodie had a row and split up. When confronted with her account he said “I don’t really know”, and when the interviewing officer commented, “You don’t seem to know a lot really, do you?” he replied, “I know, that’s true. I don’t know a lot do I? I don’t know.” Nevertheless, he was still maintaining his account and asserting that Jodie was ‘probably mixed up’. At no stage prior to service of his defence statement did Nazim refer to Fayaz Ali. In his defence statement he did not identify Fayaz as his companion that night, but merely named him as a defence witness. 35. Nazim Hussain told the court during examination by Mr Bishop QC that he was born on 18 December 1984 and lived at 15 Wensleydale Road in Bradford, the address at which he had been living with Shabran at the time of the events of 23/24 October 2007. We were told by counsel that Wensleydale Road is some 2 to 3 miles from Bishop Street. Nazim was at the time of these events of good character. He worked for Arrow Taxis and drove a Ford Mondeo. He confirmed that upon his discharge he would have been prepared to give evidence in Ashiq’s case. Asked how well he knew Ashiq, he said he was not a blood relative, did not know him too well but he knew him. He confirmed that he recalled some of the events of 23 October 2007 but when asked whether he could remember what time he finished work he said that he needed to see his statement. He was shown without objection the statement he had made on 29 April 2009. Having consulted the statement in which he said he had finished work at 6 pm, he said thought he had finished work at about 7 to 8 pm. Then he had driven around Bradford with his friend, Fayaz Ali, in whose company he remained until 4-5 am on 24 October 2007. At about 11 pm he received a telephone call from Mohammed Shabran asking him to collect him from the Shell Petrol Station on Leeds Road. When he arrived he found that Shabran was drunk. Amar, who was with him, was pretty sober. He took them to 15 Wensleydale Road where he left them. It was Shabran’s alibi at trial that he and Amar slept in an attic room on the top floor of that property where they remained overnight. Upon Nazim’s present account that alibi could have been supported by Fayaz Ali and Nazim Hussain. Nazim Hussain told Mr Bishop that he spent the rest of the night ‘joyriding’ in his taxi. With two exceptions he did not know where he drove, save that he drove around Bradford. At about 1.30 am he went to Motorwise whose offices were at the junction between Toller Lane and Bingley Road. He did not explain why he went there. Because he noticed a car outside he drove in and there saw a police vehicle. After a brief stay he drove away again and continued his joyride around Bradford. At 4 am he recalled visiting the BP petrol station and purchasing a soft drink. Asked why he went to the BP garage, he said he was thirsty. He returned Fayaz to his home at 4-5 am before returning home himself to 15 Wensleydale Road. Nazim maintained that at no stage during the night of 23 and 24 October did Ashiq Hussain enter his taxi. He did not see him that night, he did not go to the Bishop Street area, he did not see a red Mercedes on fire and had no knowledge of events in and around Bishop Street until after his arrest. 36. At the close of the prosecution case the trial judge summarised the evidence concerning Nazim Hussain during the night of 23/24 October 2007 as follows: (a) Nazim Hussain was seen smashing the front window of the blue Mercedes in Bishop Street; (b) Witnesses identified Nazim driving his taxi from which Ashiq Hussain made gun gestures and threats to a number of people on Bishop Street; (c) Nazim was seen in his taxi at traffic lights at the junction of Bingley Road and Howarth Road shortly after the shooting when vehicles outside Nisar Ahmed’s house nearby had been attacked; (d) There was cell site evidence of Nazim’s presence in the north west Bradford area at the relevant time; (e) There was telephone traffic between Nazim and other alleged co-conspirators before and after the shooting; (f) Nazim’s taxi was seen at the premises of Motorwise with a number of men half an hour after the shooting; (g) Nazim was present at the BP garage at about 4 am when men were seen to transfer between vehicles. Nazim drove off at high speed. 37. Nazim Hussain was cross examined by Mr Kershaw. Asked by Mr Kershaw whether he was in the North Leeds area at 11 pm, Nazim replied that he was not sure. He agreed that two of the witnesses who identified him smashing the window of the blue Mercedes, Wajid Hussain and Adelat Hussain, were known to him. When it was pointed out to him that contrary to his evidence the cell site analysis showed that he was in the Bishop Street area that night, Nazim Hussain responded, “Does it?” It was pointed out to him that while there were a number of calls to and from his mobile phone there were no calls around the time of the shooting. Nazim replied that he did not know. He could not remember that later his car was at traffic lights in the immediate vicinity of fire attacks on nearby vehicles. He claimed not to remember at what time in the morning he had been at the premises of Motorwise. As to his visit to the BP Petrol Station at 4 am, the evidence had been that someone had jumped out of his taxi and transferred to a white Peugeot before Nazim sped away. In evidence Nazim said he could not recall any men transferring from one vehicle to another. He denied that he had driven off at high speed. Nazim was reminded that during his interview he told the police that he had been driving around Bradford with his girlfriend, Jodie Tait. Nazim said he did not know. He was reminded that the police traced Jodie who did not support his alibi. He responded that he could not remember claiming to have been with Jodie. He was reminded that he had submitted a signed defence statement to the Crown Court in which he had admitted not telling the truth in interview about his alibi. Nazim provided the court with no explanation for this concession. 38. While he had not in his defence statement specifically identified Fayaz Ali as his companion that night he had named him as a witness in his defence. Nazim Hussain claimed not to remember. He confirmed that Fayaz Ali was alive and well at the time of the trial and that Nazim and Ashiq shared the same solicitor. It followed from Nazim’s evidence that if Fayaz Ali could support Nazim’s alibi then so could he have supported Ashiq’s denial that he entered Nazim’s taxi that night. It was Shabran’s evidence at trial that any telephone calls made from his mobile after his return to 15 Wensleydale Road were not attributable to him because he had left his mobile phone in Nazim’s car. One of those calls, after the shootings, was to Shabran’s girlfriend. Asked by Mr Kershaw whether he had any knowledge of Shabran’s girlfriend’s telephone number, Nazim replied that he did not. When asked whether Shabran had left his telephone in his taxi he said he could not remember. Asked whether either he or Fayaz called Shabran’s girlfriend from the taxi he again replied that he could not remember. Asked whether he returned Shabran’s mobile phone to him he replied that he did not know. Asked whether he could recall a phone ringing in his car he said he could not remember. 39. Mr Bishop QC submitted that this was plainly not a witness who had been coached to give evidence. The vagueness of his account had the ring of truth about it. He is a witness on whose account the defence may well have relied had it been available to them at the time of trial. On the contrary, this court has no hesitation in concluding that Nazim Hussain was not a witness of truth. We are quite satisfied that he knew the purpose of his giving evidence in Ashiq’s appeal and that he was well aware of relevant evidence affecting both him and Ashiq. We make due allowance for the lapse of time since trial but simply cannot accept Nazim’s claims not to remember important events which featured large at his trial. Unchallenged cell site evidence demonstrated the improbability of his claim not to have been in the vicinity of Bishop Street on the night of the shooting. He admitted in his defence statement that the alibi given in interview had been untrue. Shabran gave evidence at trial of being collected by Nazim from the Shell garage. He claimed to have left his mobile phone in Nazim’s taxi. On Nazim’s present account Fayaz Ali was with him in his taxi and could have supported Shabran’s alibi. No mention of Fayaz Ali was made in the course of Shabran’s evidence. It seems obvious to us that if Nazim Hussain had given evidence he would have faced questioning upon the issue of Shabran’s phone. If he was unable to explain the telephone call to Shabran’s girlfriend made on Shabran’s telephone the detrimental effect to Shabran’s case was obvious. The cell site analysis was consistent with a journey by Shabran’s telephone from the Shell garage from which Shabran was collected by Nazim shortly before midnight; a journey from the Shell garage to the Bishop Street area by about 12.15 am; a journey from the Bishop Street area to the Bingley Road area, where Motorwise was situated, and a return to Bishop Street by 12.29 am. No call was made from Shabran’s mobile phone between 12.29 and 12.57am. At 12.57am the call to Shabran’s girlfriend was made from a cell site serving the Bingley Road, Motorwise and BP petrol station areas. Cell site evidence was consistent with the movement of Shabran’s phone towards Bishop Street just before the shooting. Had Nazim been exposed to cross examination on behalf of the prosecution at trial, the improbability of his account that he was never in the Bishop Street area would have been exposed. The eye-witness evidence of Shafique Hussain, Sajid Hussain, Wajid Hussain and Adalat Hussain to the effect that Nazim Hussain’s taxi was in Bishop Street at the material times was consistent with the cell site evidence of calls made by Nazim’s phone. In order to accept the evidence of Nazim, the jury would have been required to contemplate the possibility, not only that these witnesses had lied about seeing Ashiq in the vehicle in Bishop Street, but about the fact that the vehicle was there at all. Despite his evidence to this court, we regard it as highly improbable that Nazim would have agreed to give evidence on behalf of Ashiq and, thereby, expose Shabran’s position or that those acting for Ashiq would have taken the risk of calling him in a re-opened defence case. Much more probable, in our opinion, would have been a judgement that Ashiq’s position was better protected by the absence of Nazim from the trial altogether. However, we are in the present context not concerned with probabilities. If there is a workable possibility that Nazim would have been called in a re-opened defence case then we must finally consider the impact of his evidence on Ashiq’s trial. 40. For the reasons we have given, we have no doubt that Ashiq’s position could not have been improved in the eyes of the jury and, in all probability, would have been made much worse. Nazim’s first alibi was admittedly false; his second alibi was unsupported by evidence from Fayaz Ali notwithstanding Fayaz Ali’s availability; Nazim’s evidence was vague and inconsistent upon matters which incriminated him in relevant events; making due allowance for the defence case of bias by prosecution witnesses towards Ashiq and his family, there was powerful evidence from witnesses, whom Nazim said had no axe to grind with him, that he was in Bishop Street at the time the violence erupted. Desirable though it would have been for the judge to permit time for consultation and reflection, we are quite satisfied that in the result no unfairness capable of affecting the safety of the verdict in Ashiq’s case took place. 41. Mr Bishop QC pursued a further application to adduce fresh evidence from the Orange mobile telephone network provider. The application was deficient since it was unsupported by evidence explaining why the evidence was not available at trial. Secondly, we were invited to admit the evidence in the form of a letter from an employee of Orange to the effect that on 24 October 2007 Ashiq Hussain secured an upgrade by means of a SIM card swap and a new handset. The letter confirms that the handset was provided with a new international mobile equipment identifier (IMEI). However, the evidence which this ‘fresh’ material was intended to rebut was to the effect that calls continued to be made on Ashiq’s old handset after the shootings had taken place. Ashiq wished to establish that the call records may have recorded inaccurately the IMEI number of the handset on which he made calls made after his car was set on fire. The fresh evidence simply did not have the effect claimed. Furthermore, on Ashiq’s account his old mobile phone should have been destroyed in the fire which consumed the red Mercedes. We refuse leave to admit the ‘evidence’ from Orange. 42. In conclusion, we have no reason to doubt the safety of the verdict in Ashiq’s case and his appeal is dismissed. Mohammed Shabran’s Grounds of Appeal 43. It was submitted on behalf of Mohammed Shabran by Mr Nathan QC that the judge should have acceded to a submission of no case to answer at the close of the prosecution case, alternatively at the close of the evidence, and alternatively that the state of the evidence renders Shabran’s conviction unsafe. Mr Nathan’s submissions concentrated upon the voice recognition evidence upon which the prosecution relied to identify Shabran as the gunman. Mr Nathan adduced the evidence of a leading expert in voice analysis, Professor Peter French, in order to provide the jury with some assistance as to the limitations of the evidence they had heard of voice recognition. Professor French gave evidence that if he were analysing a sample of voice he would require substantially more speech from the “suspect” voice than the words spoken by the gunman at the scene in order to make a meaningful comparison. He would need fewer words if the speaker had a distinctive voice. In his view, the fact that the words were shouted made voice comparison more difficult. 44. The nature of the evidence being considered by the jury can be summarised as follows. Adalat, Sajid and Wajit Hussain all claimed to have heard the gunman shout the word “Oi!”. Zakar Khan heard the gunman shout “You mother fuckers”. Nisar Ahmed heard the gunman shout “Kill them, you mother fuckers”. Zakar Khan said he had heard Shabran using similar words during the earlier incident at the BP Petrol Station. While there was evidence that Shabran had on other occasions used the word “Oi”, we accept the submission that the evidence of Adalat, Sajid and Wajit was of little or no value to the jury. The evidence of Zakar Khan and Nisar Ahmed was, we accept, at the borderline of admissibility. 45. The attention of the judge was drawn to the decision of this court in R v Flynn and St John [2008] 2 Cr App R 20 in which the court highlighted the dangers inherent in voice recognition. At paragraph 16 Gage LJ, giving the judgment of the court, observed that in general terms the expert evidence before the court demonstrated (1) identification of a suspect by voice recognition is more difficult than visual identification; (2) identification by voice recognition is likely to be more reliable when carried out by experts using acoustic and spectrographic techniques as well as sophisticated auditory techniques, than when made by the lay listener; (3) the ability of a lay listener correctly to identify voices is subject to a number of variables. There is at present little research about the effect of variability but factors which are relevant include: i) The quality of the “suspect” voice; ii) The gap in time between the listener hearing the known voice and his attempt to recognise the disputed voice; iii) The ability of the individual lay listener to identify voices in general; iv) The nature and duration of the “suspect speech”. Some voices are more distinctive than others and the longer the sample of speech the better the prospect of identification; v) The greater the familiarity of the listener with the known voice the better the chance of an accurate identification of the disputed voice. 46. In Flynn , the court was concerned with the quality of a covert recording and recognition subsequently made, not with spontaneous recognition at the scene of an alleged crime. The court concluded that the evidence should not have been admitted since the covert recording was of insufficient quality for voice recognition to be made by non-expert witnesses. In this case both sides and the judge agreed that the quality of the evidence was in the nature of a “fleeting glimpse”. The judge took the view, having heard the evidence of the witnesses, and before hearing the evidence of Dr French, that the voice recognition evidence should be considered by the jury subject to explicit warnings. The judge reached this conclusion since, applying the principles in Turnbull [1976] 63 Cr App R 132 , the jury was entitled to consider not merely the quality of recognition but also any evidence capable of supporting it. That evidence included threats to kill uttered by Shabran to Shafique Hussain at the BP petrol station not long before the shooting, the request made to his brother Kamran during his mobile telephone call from the BP petrol station, the presence of his mobile telephone within the area of Bishop Street at the material time, and, if the jury so concluded, the falsity of his alibi. In our judgment the learned judge’s decision cannot be faulted. 47. As we have observed, explicit directions to the jury as to the caution required were needed. In a passage of his summing up commencing at page 39 the learned judge gave those directions. He pointed out to the jury that the principal defence case was that the identifying witnesses were lying, not that they had made a mistake. Nevertheless the jury had to be alert to the possibility of mistake. The judge proceeded to give the jury assistance as to their approach to the defence case. We add in parenthesis that it was a curious fact, if the witnesses were motivated by malice, that they did not purport to make a more specific visual identification of Shabran notwithstanding that the gunman was wearing a balaclava. The judge proceeded, however, to provide the jury with directions as to the reliability of the evidence only on the assumption that the jury concluded that “a particular witnesses’ evidence is truthful, accurate and reliable”. He warned them of the special need for caution before convicting Shabran upon any of the evidence of voice recognition despite the fact that they concluded the evidence was honest, truthful, accurate and reliable. He provided the jury with a modified Turnbull direction. He pointed out that having regard to the incident at the petrol station the witnesses may have been expecting Shabran to turn up in Bishop Street with a gun. There was a risk that their purported recognition was prompted by prior knowledge. The jury was reminded that contamination by talk in the street after the event was a danger against which they should guard. The evidence of Dr French, pointing out the advantages of scientific analysis of voice samples over “lay listener voice recognition”, was summarised. The judge explained the difference between an exercise of voice analysis carried out by an expert and the judgement of witnesses claiming to recognise a voice in the street. He explained that the lay listener has no expertise and is unable to analyse in hindsight the reasons for the recognition claimed. The judge particularly directed the jury’s attention to the limitations of voice recognition evidence created by the limited number of words upon which any of the witnesses relied. He concluded by saying that even the most competent recognition of a voice by a lay listener may nevertheless be wrong. In our judgment the judge gave the firm directions which were promised at the close of the prosecution case. We consider that the judge was right to permit the jury to consider this evidence in the light of his warnings. We have no reason to doubt the safety of the resulting verdict. Mohammed Kamran’s Grounds of Appeal 48. It was also submitted on behalf of Kamran by Mr Hill QC that the case against him should have been withdrawn at the close of the prosecution case. The principal evidence in Kamran’s case was the identification evidence of Nisar Ahmed and Mohammed Razaq. It was submitted to the judge that while the reliability of a witnesses’ identification was a matter for the jury there was in the instant case the underlying assertion of a conspiracy by the complainants to pervert the course of justice. If Nisar Ahmed and Mohammed Razaq were demonstrably lying about key events and seeking to conceal evidence relating to the central issues then their evidence could not properly support a verdict of guilty. 49. Mr Hill identified several matters of importance. It was submitted that they lied about their presence at the attack on the red Mercedes. They knew or should have known the identity of the getaway driver. Not until ten days after the event did the witnesses reveal Kamran as the alleged getaway driver. Adalat Hussain gave evidence which cast doubt upon Razaq’s assertion that he was anywhere near a point at which he could have made the identification he claimed. Nisar Ahmed, it was asserted, had lied to the jury about his identification of Kamran damaging his car on 12 December 2007. 50. We are not persuaded by these submissions. Matters of credibility are for the jury. In his preamble to the consideration of the cases against each accused at trial the learned judge demonstrated his complete grasp of the basis for the defence allegation that the evidence for the prosecution was riddled with collusion. Nevertheless, these were matters for the jury. The judge correctly identified evidence which was capable of providing some support for the correctness of the identification. In particular, Kamran lied in interview when claiming that he was unable to drive a car. He had a previous conviction which demonstrated the untruth of that assertion. 51. Mr Hill points out to us that there may, in the minds of the jury, have been an interlocking effect between the cases of Ashiq, Shabran and Kamran. If Ashiq and/or Shabran were not present in Bishop Street at the material times, that made it the less likely that Kamran was the getaway driver. We recognise that there is sense in Mr Hill’s assertion but, in the end, the jury had to make a decision whether they were sure the person driving away the gunman was, as the witnesses said, Mohammed Kamran. Furthermore we have decided that the verdicts in the case of Ashiq and Shabran were safe. 52. We conclude that the appeal of each of these men should be dismissed. The appeals of Shabran and Kamran were privately funded. Ashiq’s appeal was publicly funded but limited to junior counsel only. We think it was desirable, in the particular circumstances of his case for reasons which appear in this judgment, that leading counsel at the trial should present his appeal and the representation order in Ashiq’s case is extended to Mr Bishop’s presence at the appeal. 53. We were invited in the cases of Ashiq and Kamran to consider the sentences imposed notwithstanding the refusal of leave by the single judge. We have reconsidered counsel’s advice and grounds. We agree with the conclusion of the single judge that the commission of the offence of conspiracy with intent to cause grievous bodily harm by means of a firearm which was in fact discharged so as to cause injury renders the sentence upon each of the appellants manifestly justified. In our view it is not arguable that the judge should have distinguished between the appellants, nor that the sentences were excessive.

2010_06_16-2417.xml

conviction

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1327/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1327

518c7854f65dbc71d17ed83176573344fa859ce782d3d2a717f97b79a6fc869d

[2010] EWCA Crim 1980

EWCA_Crim_1980

crown_court

Case No: 200903248/C4 IB Neutral Citation Number: [2010] EWCA Crim 1980 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LUTON CROWN COURT HIS HONOUR JUDGE BEVAN QC T2008 7339 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/08/2010 Before : LORD JUSTICE HUGHES MRS JUSTICE RAFFERTY DBE and MR JUSTICE MADDISON - - - - - - - - - - - - - - - - - - - - - Between : Oral Seaton Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 200903248/C4 IB Neutral Citation Number: [2010] EWCA Crim 1980 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LUTON CROWN COURT HIS HONOUR JUDGE BEVAN QC T2008 7339 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/08/2010 Before : LORD JUSTICE HUGHES MRS JUSTICE RAFFERTY DBE and MR JUSTICE MADDISON - - - - - - - - - - - - - - - - - - - - - Between : Oral Seaton Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Latham QC for the Respondent Mr R Carey-Hughes QC for the Appellant Hearing dates: 22 nd July 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes : 1. This appeal relates to comment made by the Crown on the omission of the defendant to call his solicitor. The case was one in which the defendant was accused of recent fabrication of his evidence on the grounds that he had said something significantly different in the police station. On his behalf, Mr Carey-Hughes QC contends that the comment made amounted to an infringement of legal professional privilege. In part the question raised is confined to the particular facts of this case and the course which the defendant’s evidence took. Mr Carey-Hughes, however, raises a number of questions about the import of the decision of this court in R v Wilmot (1989) 89 Cr App R 341 , which has appeared in the textbooks for many years, when considered together with other decisions upon privilege as applied to the defendant in a criminal trial. 2. The facts of the case do not need detailed rehearsal. The defendant was charged with murder. The Crown case was that he had arrived home from Germany on the evening of Wed 24 Sep 2008, had visited his friend the deceased at the latter's home in Luton, and there had murdered him by multiple stabbing with a kitchen knife, a carving fork and perhaps a machete or similar, no doubt as a result of some altercation or dispute. There was some evidence of a possible source of dispute over money borrowed by the defendant to buy a property in Turkey. 3. The defendant's case at trial was that he was not there when his friend was killed. He had visited, but had left his friend alive and well and, after catching a nap in his car a few streets away, had gone home to Woolhampton in Berkshire, where he lived and worked at a public house called the Angel. 4. This had not been the defendant’s initial account. It had always been known and accepted that he arrived home from Germany late that evening, landing at Stansted not long before midnight and then being met by some friends and driven by them to collect his own car from their home in Romford. However, first thing the next morning he had told a friend of his at work that he had come straight home from collecting his car, but had been very delayed by motorway accidents. His route from Romford to Woolhampton would not take him to, or anywhere near, Luton. He was also interviewed by the police as a witness the day after the body was found. He told them the same. 5. By the time of the trial it was indisputable that the defendant had indeed been to Luton. There was evidence of sightings of his car where it would not have been if he had gone straight home but where it would have been if he had been to Luton. There was telephone evidence to the same effect. Cellsite evidence had put one of the deceased’s mobile telephones in the near vicinity of the defendant’s place of work well after the deceased had been killed and the defendant in due course admitted that he had been in possession of it. And most of all, the defendant's freshly spilled blood had been found in the deceased's flat. 6. At trial the defendant's case was that he had indeed visited the deceased, but had left him alive and well. The Crown asserted that the change of account was forced on him by the finding of evidence which put him in the deceased's flat. He said no; he had lied because he had been delivering a package of drugs and did not want to have to admit it. 7. A good deal of the defendant's blood had also been found in his own car. The Crown's case was that it derived from injuries to his hands, which he must have sustained in the course of using one or more knives to kill the deceased. He, by contrast, said that he had cut his hands innocently on various occasions, but particularly that he had cut one hand before he visited the deceased. So it was that his account of sustaining the injury to his hand assumed significance at the trial. 8. The injuries to the defendant’s hand had been observed when he was arrested about three days after the murder. In police interviews he was asked about them. He had a solicitor with him throughout. He elected to answer none of the many detailed questions which were put to him by the police, and it was apparent on the face of the transcript and thus in evidence that this was on the advice of the solicitor. Although he answered no questions, he did present the police, through his solicitor, with two prepared statements, one in the third interview and one in the fourth. They had plainly been prepared at the police station during consultations which had taken place between interviews. Of all the topics covered in the interviews, the only one on which he volunteered information in these prepared statements was that of injuries to his hands. 9. Each of his two prepared statements began with the following signed declaration: “The statement below is my statement. My solicitor has gone through my statement with me and I agree its contents. No one has told me what to say.” 10. In the first prepared statement he said that he had cut his hand at Stansted airport at baggage reclaim when, as he tried to remove his bag from the carousel, a woman passenger had accidentally dropped her own bag on his hand. 11. At trial he said this was wrong. It had been at Lubeck airport on departure that he had cut his hand, not at Stansted on arrival. And it followed that it had not been at the carousel, but rather when a fellow passenger had dropped a sharp piece of luggage onto his hand as he was going through security. 12. In his second prepared statement the defendant gave further information about other injuries to his hand seen at the time of his arrest. One, he said, had been sustained sweeping away broken glass in the pub after returning there, thus a day or so after the murder. This second statement came during the fourth interview, and it had clearly been prepared during a consultation with his solicitor of about half an hour between the third interview (at which the first statement had been delivered) and this one. Although this second prepared statement dealt also with injuries, it was silent as to the matter of airport injury; in particular it did not correct what the defendant now told the jury was an accidental misstatement in the first statement. 13. The Crown case was that this was a further example of the defendant altering his evidence to meet the indisputable facts. They said he had altered his account in the face of evidence that (1) there was a lot of blood in his own car which must have come from his cut hand but (2) none in the car in which his friends had taken him from Stansted back to Romford. Moreover those friends recalled no sign of any cut, nor reference to one. That meant, said the Crown, that the original assertion that the cut had been sustained just before getting into the friends’ car, and some little time before getting into his own, could not be correct. Counsel for the Crown had other examples of changes in the defendant’s account to explore, not least the earlier denial of going to Luton at all, and the jury would have to decide whether the defendant’s explanation might be truthful or not. But it is clear that counsel for the Crown took the stance, in due course, that this particular change in the defendant’s story was one for which there was no plausible explanation, and that it was, for that reason, a good touchstone as to his truthfulness. 14. The defendant’s evidence at trial on this topic proceeded as follows. First, he was asked about it by his own counsel in chief. He gave evidence that he had been advised not to answer the policemen’s questions, but did not adduce the terms or contents of that advice. He was asked directly whether the assertion in the first statement that the accident to his hand had occurred at Stansted was correct. He said it was not. The questioning proceeded: “Q: Who wrote out whatever it was that was said? A: My legal representative. Q: We know that your signature appears on it, along with a declaration that you have read it and it is correct. A: Yes Q: Did you read it? A: I didn’t, no. Q: Why not? A: Erm, I should’ve done – in hindsight. Erm, but to tell you the truth I was so tired, erm…I’d obviously been in the police station. I didn’t sleep. Erm, and with that and my medication made me even worse – I actually went to the hospital that Monday as well. So, I didn’t feel too well – too well. Q: Anyway, you did sign it without reading it. A: Yeah Q: It was read out during the course of the interview A: Yes Q: When it was read out, did you appreciate that it said that you had injured your hand at Stansted Airport, picking up luggage off a carousel? A: Yes Q: Was that correct? A: No, it wasn’t. Q: Did you realise…. A: I did at the time Q: …that it was wrong? And did think about correcting it? A: I did, but then I thought, erm… Q: I do not mean during the interview but at any time immediately after the interview A: Yeah. After. Q: I just want you to say ‘yes’ or ‘no’ to this, please: did you discuss the possibility of correcting it with your solicitor? Just yes or no please. A: Yes Q: In the light of whatever discussion you had with your solicitor did you come to a decision about whether you change it there and then, as it were? A: Yeah, but I decided not to change it at the time.” The defendant went on to say that he had reached that decision because he thought the information irrelevant, and hoped shortly to be released, but felt that if he changed the statement the police might not believe him. Inferentially at least it appears that he was saying that he thought it might delay his release to alter the statement. 15. In cross examination, counsel for the Crown established that this meant that the defendant was saying that the responsibility for the (as he now said) error in the first prepared statement was that of his solicitor, who had made a mistake. Counsel made it clear to the defendant that his conversations with his solicitor were privileged and that he could not and did not ask to see her notes. The reference to privilege troubled Mr Carey-Hughes, who raised with the judge, in the absence of the jury, the issue of how far cross examination could go. In the event, after discussion, it did not go beyond underlining the suggested improbability that the error should not be corrected when the obvious opportunity afforded by the second prepared statement presented itself immediately after the error had been noticed by the defendant. However, in discussion with counsel both then and later during the trial the judge ruled that counsel for the Crown was entitled to comment to the jury on the absence of the solicitor from the witness box. Counsel for the Crown did make that comment, with some force. He did so in the context of a speech in which the change of account in relation to the injury was treated as a good touchstone for the truthfulness of the defendant and for what was suggested to be the manner in which he had altered his account in several respects in order to tailor it to the indisputable evidence. It is that comment which Mr Carey-Hughes contends was impermissible, and which forms the basis of his appeal to this court. R v Wilmot (1989) 89 Cr App R 341 16. This question arose unexpectedly. The only authority to which the judge was referred was Archbold and in particular to a reference to R v Wilmot . The report was not available immediately, though it may have been consulted as the trial proceeded. There has been debate before us as to what proposition Wilmot is properly authority for. As will be seen, it makes in the end no difference to the result of the present case which it is. Having had the benefit of argument, however, we think that we should set out our analysis of Wilmot because it appears that it may have been assumed without argument in subsequent cases to have said something which it is not at all clear that it did say. 17. Wilmot was charged with a series of six predatory rapes, committed by picking up women, some prostitutes, in one or other of two cars. On appeal, the principal issue was the cross admissibility of the evidence of the several complainants and whether it had been proper to try the counts together. That depended on the law of similar fact evidence as it stood before DPP v P [1991] 2 AC 447 and long before the bad character rules now contained in the Criminal Justice Act 2003 . The appeal on that point failed. It is the second point which concerns us. 18. The second point related to the defendant’s change of account. When first arrested he had said he had had nothing to do with any of the complainants. When told of the possibility of scientific evidence, he confessed to the rapes. But in interview the following morning, attended by a solicitor, he reverted to his original denial of any connection with any of the complainants. He retracted the confession, saying that he made it to ensure the release from the police station of his girlfriend. At trial, however, his evidence was that he had had sexual intercourse with each of the complainants, but that it had been consensual, followed by a dispute. Whatever else he had previously said, he had never said this. The Crown’s case was that this was a recent fabrication, designed to accommodate evidence which clearly put him in the company of the complainants – there was fingerprint evidence, semen analysis and the finding of property belonging to one of them which made a strong case that he had been present. 19. Counsel for the Crown had cross examined the defendant by suggesting that this was recent fabrication. There was nothing arguably wrong with that. But he had also asked the defendant: “Did you tell your solicitor the truth?” The defendant declined to answer the question. In due course counsel for the Crown commented on the absence of the solicitor from the witness box and the judge told the jury this, dealing with the allegation of recent fabrication: “When that sort of suggestion is made, the law is this. Until such a suggestion is made, nothing that an accused has said privately to his solicitor or his counsel or his Mum or his Dad about the case is admissible. But the minute it is suggested that it is a cook-up, a fairly fresh invention, an accused is entitled to give and to call evidence in proof of the fact that he had indeed said what he is now saying to you at a much earlier date. ……That suggestion…entitles an accused both to give and call evidence that the suggestion of recent invention is all rubbish, that privately and at a much earlier date he had said it to his solicitor, and his solicitor is entitled to come in to the witness box and say the same thing. You have heard no such evidence and therefore you are entitled to ask the question “Are we sure [that he is speaking the truth]?” 20. It is to be noticed that the question asked by counsel for the Crown came at a time when the defendant had said nothing whatever about his solicitor, or any discussions with him, or indeed anything at all about when his present account of matters had first seen the light of day. Counsel’s question went directly to a privileged occasion. There had been nothing which could arguably have constituted a waiver by the defendant of his privilege, and when asked the question, the defendant had declined to answer. 21. The court dismissed the appeal. One view of this case is that it is authority for the proposition that no question either of privilege or waiver arose in the circumstances of that case. The relevant part of the headnote in the Criminal Appeal Reports certainly begins: “(2) The case did not raise a question of breach of privilege at all. The privilege prevented the prosecution from calling the solicitor to give evidence but the appellant was entitled to call him, just like any other witness, to rebut the allegation of recent fabrication.” The second sentence is obviously correct. The appellant was entitled to call his solicitor, just as he could call any other witness. The first sentence makes a broader statement altogether, namely that no breach of privilege arose anywhere in the case . It is certainly possible to see how this has been extracted from the judgment, but it is by no means clear that it is what the court meant to say. 22. The court set out the submissions of Crown counsel which were in effect twofold: i) This was not a matter of privilege at all. The solicitor, if called would simply be giving evidence as the recipient of an account given by the defendant at an earlier stage, as might in other circumstances be given by anyone else, such as the defendant’s mother or father. ii) Privilege prevented the prosecution calling the solicitor but did not prevent the defendant calling him, once he needed to rebut the suggestion of recent fabrication. Having recited those submissions, the court concluded “With that comment we agree.” The question which needs to be confronted, however, is whether it was agreeing with both propositions, or only with the one immediately preceding the assent. 23. Next, the court went on to hold that there had been a very strong case of recent fabrication, and that to suggest it was completely justified. It added “We emphasise that in our view it is not a question of breach of privilege at all.” That might mean that there was no breach of privilege anywhere in the case, or it might mean that if the defendant had called his solicitor that would not have amounted to a breach of privilege. 24. Since the court went on to point out that the Crown could not call the solicitor, and only the defence could have done so, that is some indication that it meant no more than that there would have been no breach of privilege had the defendant called him. More significantly, the court went on specifically, and emphatically, to hold that the question asked by Crown counsel in cross examination (“Did you tell your solicitor the truth”) ought never to be asked. The court expressly said that such a question put the defendant into “an impossible position”. The only basis on which that question was wrong was that it intruded upon legal professional privilege at a time when the defendant had himself done nothing which could even arguably amount to waiver of his privilege. The reason why it put the defendant in an impossible position was, plainly, that it wrongly forced him either to waive privilege or to suffer the criticism that he must be untruthful because he had not. In other words, the court was recognising that privilege indeed existed, and that Crown counsel’s question had intruded onto it. 25. The true reason for the decision of the court, on this secondary ground of appeal, appears from what follows its unequivocal rejection of the propriety of counsel’s question. It held that in the context of an overwhelming case against the defendant, the asking of one improper question “cannot be thought to have made an appreciable difference of any kind to the conclusion which the jury reached which was amply justified by the evidence.” 26. It appears that it may be that in some subsequent cases, Wilmot (perhaps on the basis of its headnote) has been taken (without detailed analysis) to mean that a defendant faced with an allegation of recent fabrication can call his solicitor without that constituting any element of waiver of his privilege. Before considering those cases, it needs to be recorded that nowhere in the judgment in Wilmot is there any discussion whatever of waiver. That is unsurprising, since Wilmot had not done anything approaching waiver: see paragraph 19 above; what he had done by refusing to answer his cross-examiner’s question was not to waive, but rather to claim, privilege. At most, the court spoke of whether there had been breach of privilege, and as to that, as we have seen, the better view is that it was saying no more than that the defendant himself could not be in breach of his own privilege. 27. For the reasons which we have given, it seems to us that the court in Wilmot was not holding that no privilege existed at all; plainly it did. It cannot have been expressing the view that counsel’s question did not intrude on privilege, for if it did not, it could not have been roundly criticised, as it was. If the court was expressing the view that no breach of privilege would have been involved if the defendant had opted to call his solicitor on this point, that was obviously correct, for the privilege is that of the defendant and he can rely on it or not at his election; he cannot be in breach of it. Subsequent cases 28. The four subsequent cases which we need to examine were all concerned with section 34 Criminal Justice and Public Order Act 1994 , which of course did not exist at the time of Wilmot. 29. R v Condron and Condron [1997] 1 Cr App R 185 was the first case in which this court gave general guidance on the approach to the new section 34 . The defendants were charged with the supply of heroin. They had declined to answer police questions and it was on the record that their solicitor had advised them not to do so, on the grounds that he considered them unfit because they were displaying withdrawal symptoms; the doctor who examined them had disagreed. The principal decision of this court was that where it was in evidence that the defendant had been given legal advice not to answer questions that did not mean that no adverse inference under section 34 could ever be drawn, but that a direction based upon the one appropriate to failure to give evidence (as explained in R v Cowan [1996] 1 Cr App R 1) ought to be given. However, on the facts of the case, although the direction had not been as complete as the court now explained it should have been, the convictions were entirely safe. 30. The court went on to give general guidance on the conduct of cases where section 34 arose, dealing with matters which are now uncontroversial, such as the extent to which the Crown should adduce the fact of a ‘no-comment’ interview, the scope of cross examination upon failure to mention matters now relied upon, and the questions which should be posed to the jury. It also made (at 197A-G) some general observations upon legal professional privilege. 31. Those observations contained the following propositions: i) Communications between an accused and his solicitor at the police station are privileged. ii) The defendant can waive the privilege but his solicitor cannot do so without his authority. iii) If an accused gives as a reason for not answering questions that his solicitor advised him not to do so, “that advice, in our judgment, does not amount to a waiver of privilege.” iv) But if, as will often happen, the defendant wishes to put in evidence not merely the fact that he has received such advice but the reasons for it, that (although the point was not fully argued) “may well amount to a waiver of privilege”. The court went on to hold that the solicitor in that case could not claim privilege when cross examined about the ability of the defendants to explain themselves to him at the time when he was contending that they were unfit to answer questions; the privilege had been waived by the defendant calling him to give evidence of the reasons for his advice. v) Where a defendant is accused of subsequent fabrication of the explanation he is now advancing at trial, “it is always open to a party to attempt to rebut this inference by showing that the relevant facts were communicated to a third person, usually the solicitor, at about the time of the interview (see Wilmot ). This does not involve waiver of privilege if it is the solicitor to whom the fact is communicated; the solicitor is, for this purpose, in the same position as anyone else.” 32. It will be seen that the last proposition (v) contains two statements. The first, that a defendant is free to call anyone he likes to prove that he gave the disputed explanation at some previous time, is wholly uncontroversial, and it is this which is said to be based on Wilmot . It is also, as we have shown, what Wilmot said. The second statement, in the final sentence, is an addition. It looks as if it was thought to be derived from Wilmot , because of the statement that the solicitor is in the same position as anyone else, which may well derive from the submission of Crown counsel in Wilmot . But in fact Wilmot had said nothing at all about waiver, as we have shown. 33. Propositions (ii) and (iii) from Condron were re-affirmed in R v Bowden [1999] 2 Cr App R 176. The defendant was charged with robbing a McDonald’s restaurant. He had refused to answer questions when interviewed on arrest, and his solicitor had put on record that this was on the grounds that the solicitor did not think the evidence strong enough. At the trial, the defendant adduced the terms of that advice. The questions which he had declined to answer included enquiries into an apparent sudden increase in wealth, without obvious source, shortly after the robbery, and about his having taken a holiday immediately afterwards in Gran Canaria where he had been photographed in celebratory pose outside the local branch of McDonalds. At his trial he gave detailed explanations both for his spending and for wishing to photograph the McDonalds restaurant. Accordingly the question arose whether an adverse section 34 inference was open to the jury or not. 34. This court confronted directly the issue whether section 34 had altered the law of legal professional privilege. It held that it had not. It re-affirmed the fundamental nature of the privilege, relying inter alia on the well known decision in R v Derby Magistrates ex p B [1996] 1 Cr App R 385 , then comparatively recently decided. The court confirmed the distinction drawn in Condron between adducing merely the fact of legal advice to remain silent and adducing the content or terms (i.e. the reason) for that advice. The first does not waive privilege; the second does. 35. The decision in the case was accordingly that this was a case of the second sort. Privilege had been waived. It was open to the Crown to question the defendant about what he had told his solicitor and, when he said he could not remember what he had told him about the money and the photograph, that could be taken into account by the jury in deciding whether or not the real reason for not giving the police the explanation now advanced was that it was a recent invention, rather than the reason given by the solicitor for the advice. 36. The difficulty arises in relation to the following general observation at 182C, which followed endorsement of the general rule of privilege, but was not integral to the issue or the decision in the case: “It is well established that the privilege is that of the client. It is waivable, but only by or on behalf of the client. A waiver ordinarily occurs when a client chooses, for whatever reason, to reveal the effect of a communication protected by the privilege; he cannot claim privilege for that which he has voluntarily revealed. It makes no difference whether the revelation is made by the client or by the legal adviser acting within the scope of his authority as agent on behalf of the client. Nor does it matter when the disclosure is made. When a defendant at trial deposes to facts which he has not mentioned at an earlier stage and it is suggested to him that these facts are an invention or fabrication after the event, the defendant may rebut that accusation by asserting and calling evidence to show that he mentioned the facts to another person at that earlier stage, and no waiver of privilege is involved even if evidence is given (by him or his legal adviser) that this disclosure was made to his legal adviser. Such an accusation was made against the defendant in Wilmot …. ” The emphasis is ours. The emphasised words were clearly said to be based on Wilmot . The judgment appears to have treated the court in Wilmot as having approved the whole of Crown counsel’s submission (summarised at paragraph 22 above). The court went on to derive the same proposition from Condron , which it treated as having in turn derived it from Wilmot . 37. In R v Wishart [2005] EWCA Crim 1337 the Crown submitted that the distinction made in Condron and Bowden between adducing the fact of legal advice to remain silent and adducing the contents of the advice was wrong, and that there was a waiver of privilege implied in either type of case. That contention was plainly barred on the authority of both Condron and Bowden , the latter of which was directly binding on this court on the point, and it was duly rejected. In that case, the Crown had gone a great deal further than in any other reported case. The defendant had relied on an alibi not advanced in police interviews. He had put in evidence the fact that he had had legal advice not to answer questions but had not adduced any evidence of the contents of or reasons for that advice, so that this was a case of the first type identified in Condron and Bowden . Accordingly he had done nothing to waive privilege. Nevertheless, in cross examination counsel for the Crown had asked exactly the same question as had been roundly disapproved in Wilmot , viz whether the defendant had told any of his legal advisers what he was now saying. No-one told the defendant that he did not have to answer that question. The defendant had said that he thought he had told his solicitor. The judge had then directed the solicitor to disclose the whole of his records of the consultation at the police station (i.e. upon any topic whatever). Unsurprisingly, that procedure was held to be wrong. 38. In referring to Wilmot , Condron and Bowden this court cited the passages from the latter two cases which we have set out above at paragraphs 31(v) and 36. It made this comment: “16. It could be argued that in such circumstances what a defendant says to his solicitor is a privileged communication and that he waives privilege in that communication by volunteering that he has made it. But that is not what this court has said in the three cases to which we have referred which have not been doubted in any more recent cases where the earlier decisions have been followed. Even if we thought that there was some reason to doubt this well-established line of authority, we are bound to follow it.” 39. In fact, as we have seen, it made no difference to the decision in Wishart what the correct analysis is of a defendant who voluntarily opens up the topic of what he told his solicitor, since Wishart did not voluntarily do anything of the kind. 40. Loizou [2006] EWCA Crim 1719 was an example of the second type of Condron / Bowden case, where the defendant had put in evidence not only the fact of legal advice to remain silent but also the reasons for it. On appeal the issue was whether her having done so opened the door to the question in cross examination: ‘Did you tell your solicitor any of the account that you have given today?’ The answer was that on the facts of that case it did. The basis for that was that once the defendant had opened up the suggested reason for her silence, it allowed opposing counsel to probe whether that reason could possibly explain not saying (as she now was saying at trial) that she was an innocent dupe who had no connection with the transaction in question except as an interpreter. 41. On the basis of Wishart , the court assumed, without questioning it, that to call one’s solicitor to rebut recent fabrication involved no waiver of privilege (paragraph 65), but that issue did not arise in the case. The importance of the decision lies in the scholarly analysis which begins at paragraph 66 and which demonstrates that waiver, when it occurs, is not all or nothing. Waiver can be, and often is, partial. In every case of waiver, the question what the waiver has let in is determined by the test of fairness, or, to put it another way, what is necessary to avoid there being left a misleading impression by revelation of part only of the privileged communications, or the defendant, in colloquial terms, ‘having his cake and eating it’. The test adumbrated in Auburn on Legal Professional Privilege (2000) at page 216 was approved; namely that the essential question is whether the partial disclosure has actually led to unfairness or prejudice. Thus, for example, in Burnell v BTC [1956] 1 QB 187 a cross examiner who put to a witness part of a previous statement he had made to his solicitor could not resist disclosing the whole of the statement. And as Hobhouse J held in General Accident v Tanter [1984] 1 WLR 100 , “if evidence is adduced then the extent of the waiver relates to the transaction to which the evidence goes….It does not extend to all the matters relating to the subject matter of those conversations” The court might equally have been referred to B v Auckland District Law Society [2003] 2 AC 736 , where Lord Millett at paragraph 68 said this: “It does not follow that privilege is waived generally because a privileged document has been disclosed for a limited purpose only……It must often be in the interests of the administration of justice that a partial or limited waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost and it would be most undesirable if the law could not accommodate it.” It should be noted that this is not the exercise of the s 78 Police and Criminal Evidence Act jurisdiction, although the result may well be the same. This needs to be understood, because s 78 applies only to evidence which the Crown seeks to adduce, whereas the question what has been let in by a waiver of privilege may equally arise on the case of a co-defendant. 42. For the foregoing reasons our view is that Wilmot is authority for the proposition that a defendant who volunteers evidence of his communications with his solicitor does not breach privilege; the privilege is his to waive. It is not authority for those communications not being privileged. Nor is it authority on the question of when a volunteering defendant waives the privilege. For the same reasons, although later cases, and particularly Bowden , assumed that Wilmot had said that voluntary giving of such evidence in order to rebut an allegation of recent fabrication entailed no waiver, this was unnecessary to any of the decisions and proceeded upon an untested assumption born of the juxtaposition of different propositions in earlier judgments, particularly in Condron . . Conclusions 43. The foregoing analysis leads us to the following conclusions: a) Legal professional privilege is of paramount importance. There is no question of balancing privilege against other considerations of public interest: R v Derby Justices ex p B . b) Therefore, in the absence of waiver, no question can be asked which intrudes upon privilege. That means, inter alia, that if a suggestion of recent fabrication is being pursued at trial, a witness, including the defendant, cannot, unless he has waived privilege, be asked whether he told his counsel or solicitor what he now says is the truth. Such a question would require him either to waive his privilege or suffer criticism for not doing so. If any such question is asked by an opposing party (whether the Crown or a co-accused) the judge must stop it, tell the witness directly that he does not need to answer it, and explain to the jury that no one can be asked about things which pass confidentially between him and his lawyer. For the same reasons, in the absence of waiver, the witness cannot be asked whether he is willing to waive. c) However, the defendant is perfectly entitled to open up his communication with his lawyer, and it may sometimes be in his interest to do so. One example of when he may wish to do so is to rebut a suggestion of recent fabrication. Another may be to adduce in evidence the reasons he was advised not to answer questions. If he does so, there is no question of breach of privilege, because he cannot be in breach of his own privilege. What is happening is that he is waiving privilege. d) If the defendant does give evidence of what passed between him and his solicitor he is not thereby waiving privilege entirely and generally, that is to say he does not automatically make available to all other parties everything that he said to his solicitor, or his solicitor to him, on every occasion. He may well not even be opening up everything said on the occasion of which he gives evidence, and not on topics unrelated to that of which he gives evidence. The test is fairness and/or the avoidance of a misleading impression. It is that the defendant should not, as it has been put in some of the cases, be able both to ‘have his cake and eat it’. e) If a defendant says that he gave his solicitor the account now offered at trial, that will ordinarily mean that he can be cross examined about exactly what he told the solicitor on that topic, and if the comment is fair another party can comment upon the fact that the solicitor has not been called to confirm something which, if it is true, he easily could confirm. If it is intended to pursue cross examination beyond what is evidently opened up, the proper extent of it can be discussed and the judge invited to rule. f) A defendant who adduces evidence that he was advised by his lawyer not to answer questions but goes no further than that does not thereby waive privilege. This is the ratio of Bowden and is well established. After all, the mere fact of the advice can equally well be made evident by the solicitor announcing at the interview that he gives it then and there, and there is then no revelation whatever of any private conversation between him and the defendant. g) But a defendant who adduces evidence of the content of, or reasons for, such advice, beyond the mere fact of it, does waive privilege at least to the extent of opening up questions which properly go to whether such reason can be the true explanation for his silence: Bowden . That will ordinarily include questions relating to recent fabrication, and thus to what he told his solicitor of the facts now relied upon at trial: Bowden and Loizou . h) The rules as to privilege and waiver, and thus as to cross examination and comment, are the same whether it is the Crown or a co-accused who challenges the defendant. The present case 44. Mr Carey-Hughes contended that all communications between the defendant and his solicitor were privileged, that there had been no waiver, and that accordingly the comment which the Crown made was impermissible. He submitted that if and insofar as Wilmot decided that there was no question of privilege and that for that reason the comment could not amount to a breach of it, the case was wrongly decided. 45. As we have endeavoured to show, Wilmot did not, properly analysed, decide that there is no question of privilege or of waiver when a defendant gives evidence that he told his solicitor the account which he is now producing at trial. 46. However, whatever the correct analysis of Wilmot , this is a clear case of waiver by the defendant’s evidence in chief. The defendant’s evidence that his first prepared statement contained an error, and that he had signed it without reading it, can mean nothing other than that he had told his solicitor something different and the responsibility for the error was hers. That was putting in evidence his suggestion that he had told her, from the outset, not Stansted but Lubeck. Even more clearly, his evidence that he had noticed the error when the first prepared statement was read out, and had discussed with her correcting it, could mean nothing other than that he had told her, between the two interviews, ‘not Stansted but Lubeck’. We do not agree with Mr Carey-Hughes that it is possible to avoid this obvious conclusion by the ‘forensic device’ of asking no more than whether the defendant had discussed the error with his solicitor and not explicitly what he had said. There was no point in asking the defendant whether he had discussed the “error” with his solicitor unless it was to inform the jury that the allegation of recent fabrication was unfounded because the defendant had always said what he was now saying at trial – ie Lubeck. He could not do that without waiving privilege. It is clear that when the argument arose unexpectedly at the trial, and without any of the authorities being available apart from Archbold ’s reference to Wilmot , the point was not argued on the basis of waiver. But that makes no difference. It is not as if the point was argued before the defendant gave evidence and he relied upon what was argued when he came to give it. By the time the argument arose, he had given his evidence. He had deliberately put before the jury the plainest possible suggestion that he had not changed his account but had given his solicitor the same one as he was giving the jury. That inevitably must be characterised in law as a waiver. 47. The Crown did not in fact probe any further in cross examination into the content of the communications between the defendant and his solicitor. The question before us relates solely to the comment on the fact that if the defendant’s evidence were true, it could and would be confirmed by the solicitor, who was available. Once there had been this waiver, this comment was, on the facts of this case, wholly justified. We agree that adverse comment on the absence of a witness is by no means always justified. Often the jury would be in real danger in deducing conclusions from the absence of a witness, because there may be many good reasons why he cannot or will not be called. Moreover in the case of many, but not all, witnesses, either side could call them. Those were no doubt among the reasons which lay behind the decision in R v Wheeler (1967) 52 Cr App R 28 that all that ought normally to be said is that neither side had called the witness. But as this court explained in R v Shakeel Khan [2001] EWCA Crim 486 , each case depends upon its facts and it may be entirely fair to comment on a witness not being called where the evidence shows that he is available and could readily give the lie to a suggestion made against the defendant if it is false. It is true that, in strict theory at least, once there had been the waiver that there had, the Crown could perhaps have called the solicitor themselves, limited to the point in issue. But in reality that would not be practicable. The solicitor could not be proofed. Even if, technically, it were possible to by-pass the general rule requiring service in advance of the statement of a rebuttal witness (as to which we say nothing), there would be considerable danger, if she were called blind, of trespassing inadvertently beyond the part of the communications which the defendant had opened up. The reality in this case was that if the defendant’s evidence of what passed between him and his solicitor was true, it was the simplest possible thing for him to call her, and she would have laid immediately and conclusively to rest the suggestion of recent fabrication of the account of the cut to the hand. Her absence, on the facts of this case, was indeed telling, as the Crown submitted, and since the defendant had opened up the topic, the jury was entitled to consider her absence. 48. If, contrary to our view, the law is that the evidence the defendant gave did not impinge upon privilege at all, then the same result follows. 49. For these reasons we hold that the comment made by the Crown was not impermissible. If it had been, it was sufficiently significant in the context of this case to make the conviction unsafe. Since it was not, the conviction is perfectly safe and the appeal must be dismissed.

2010_08_13-2487.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1980/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1980

b66082b7353ef25d300f233adbc778fc478e08bc8cf98bc38523e0ca7c0bbc8f

[2017] EWCA Crim 192

EWCA_Crim_192

crown_court

Neutral Citation Number: [2017] EWCA Crim 192 IN THE COURT OF APPEAL CRIMINAL DIVISION 201603219A1 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/03/2017 Before : LORD JUSTICE SIMON and MR JUSTICE BLAKE and MR JUSTICE SOOLE - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Robert HAMER Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms S. Ridge appeared for the Appellant Ms A. Archer appeared for the Crown Hearing da

Neutral Citation Number: [2017] EWCA Crim 192 IN THE COURT OF APPEAL CRIMINAL DIVISION 201603219A1 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/03/2017 Before : LORD JUSTICE SIMON and MR JUSTICE BLAKE and MR JUSTICE SOOLE - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Robert HAMER Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms S. Ridge appeared for the Appellant Ms A. Archer appeared for the Crown Hearing date : 2 March 2017 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Mr Justice Soole: 1. By leave of the single judge the appellant appeals against the sentence imposed on him on 15 June 2016 by the Crown Court at Southampton (HHJ Burrell QC) in the form of a Sexual Harm Prevention Order (SHPO) by way of variation of an existing Sexual Offences Prevention Order (SOPO). 2. On 14 January 2015 the appellant was convicted of 6 offences of distributing indecent photographs of children and three offences of making indecent photographs of children, contrary to the relevant provisions of the Sexual Offences Act 2003 (‘the 2003 Act’). The sentences imposed on 27 February 2015 comprised a Community Order with unpaid work requirement and a SOPO for an indefinite period. The SOPO prohibitions comprised : ‘1. Using any device capable of accessing the internet unless : (i) it has the capacity to retain and display the history of internet use; and (ii) he makes the device available on request for inspection by a police officer; 2. Deleting any such history; 3. Possessing any device capable of storing digital images, unless he makes it available on request for inspection by a police officer’ and were for an indefinite period. The offences automatically gave rise to the notification requirements under the 2003 Act . 3. With effect from 8 March 2015 the Anti-Social Behaviour, Crime and Policing Act 2014 (‘the 2014 Act’) replaced the SOPOs with SHPOs. The SHPO regime replaced the SOPO requirement of ‘serious sexual harm’ with ‘sexual harm’ (s.103A(2)(b), cf. the repealed s.104(1)). However the 2014 Act contained transitional provisions in respect of existing SOPOs (s.114). These retained the power to vary such orders and by reference to the more stringent test (s.108(1)-(5)). 4. On 9 November 2015 police officers attended the appellant’s home address without prior warning in order to inspect his devices. The appellant had in his possession two i-Phones and an iPad mini. He denied that he had any other devices capable of accessing the internet or storing images. In the course of a search the officers found an Apple i-Phone 4 and two USB sticks in a chest of drawers. A search of his Land Rover, a vehicle marked in ambulance livery, found a basic Nokia mobile phone. This did not have internet access but it did show evidence of a Facebook account that he had set up in the name of Albert Munk. 5. The USB sticks were examined and found to contain images from 2008 of a young girl who was related to the appellant through a family member. In interview he said that he had created the fictitious account name in order to see the forums and sale pages he had posted for uniform and equipment related to the ambulance sector in which he had previously been employed. 6. In respect of the Facebook account, he was charged with failure to comply with the notification requirements, contrary to s.91 of the 2003 Act (Count 1). In respect of the USB sticks and the Apple i-Phone 4, he was charged with two offences of breach of the SOPO (Counts 3 and 4), contrary to s.113 of the 2003 Act . 7. By application in Form MG13 dated 16 November 2015 the police applied for an order to ‘amend SOPO with SHPO’. At its foot the application identified the ‘Officer in Case’ and ‘Supervisor’s name’. The requested further orders included : ‘1. Owning any device capable of accessing the internet unless the ownership of this device is declared to their designated police officer manager within 3 days of the acquisition…4. Using the internet to contact or attempt to contact any female known or believed to be under 16 years of age. Having any unsupervised contact or contact or communication with any female under the age of 16, other than (i) such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or (ii) with the consent of the child’s parents or guardian, who has knowledge of his convictions’. 8. This application was not served on the appellant or his legal advisers, nor was it provided to Prosecution Counsel, until the sentencing hearing 7 months later. 9. On 8 January 2016 the appellant pleaded guilty to Count 1 at a preliminary hearing. At the PCMH on 8 March 2016 he indicated pleas of guilty to Counts 3 and 4 on a basis that he had forgotten about the items; had not used them; and that his failure to produce them was an omission not a deliberate act. The Crown thereafter accepted the basis of plea. 10. On 25 May 2016 the appellant pleaded guilty accordingly and the case was adjourned for a pre-sentence report. The subsequent report stated that he had responded well to supervision under the Community Order and completed the unpaid work requirement. The conclusion was that he continued to pose a medium risk of causing serious harm to children due to the previous offences but that the breaches did not raise the risk. 11. At the sentencing hearing on 15 June 2016 Counsel for the Crown Ms Archer, having opened the facts and dealt with antecedents, then told the Court that her attention had just been drawn to an application for an amended SOPO of which the appellant and his Counsel had also had no prior notice. This was the application dated 16 November 2015. 12. Following mitigation and argument in respect of the application, the Judge allowed the addition of the further orders referred to above. The Judge said ‘So clauses 1 and 4 of the new wording will be added by way of amendment and it can now be called a Sexual Harm Protection Order’. 13. The resulting Order was drawn up and headed as a SHPO but stated at the end of the Schedule of Prohibitions ‘Please Note – This is a variation to the [SOPO] made at Winchester Crown Court on 27 February 2015’. 14. The first ground of appeal is that the Judge’s order was unlawful in that he had no power to make a SHPO or to amend a SOPO and to call it a SHPO. The Registrar has raised a further jurisdictional question, namely whether the application to vary the SOPO had been made by one of the persons identified in s.108(2) of the SOA 2003. 15. As to the first ground of appeal, it is accepted by the Crown that the Judge had no power to make a SHPO. This is because the offences which entitle the Court to impose a SHPO do not include the offence of breaching a SOPO : s.103A(2) and Schedules 3 and 5 of the 2003 Act as amended. However the Crown submits, by reference to the terms of the Form MG13, the Judge’s sentencing remarks and the footnote to the Order, that the Court’s intention was not to make a SHPO but to amend the SOPO and that the Order should be construed in that light. 16. In R v. Pelletier [2012] EWCA Crim 1060 the terms of the SOPO as drawn up by the Crown Court office did not reflect the terms which the Judge had announced when sentencing. This Court held that in such circumstances the terms of the Order were those which the Judge had announced, with the consequence that the appellant’s conviction for breach of the order was set aside. In the present case the hybrid Order as drafted by the Court office did reflect the judge’s sentencing remarks. However there was no power to impose an SHPO. Accordingly an Order so entitled cannot stand and must be set aside. The question is then whether the same prohibitions could have been imposed by an amended SOPO. 17. This leads to the threshold point, raised by the Registrar, as to whether the application to vary the SOPO satisfied the conditions of s.108(2) of the 2003 Act , as preserved by the transitional provisions in the 2014 Act . 18. Under the heading ‘SOPOs : variations, renewals and discharges’, s.108 provides so far as material : ‘(1) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a [SOPO]. (2) The persons are – (a) the defendant; (b) the chief officer of police for the area in which the defendant resides; (c) a chief officer of police who believes that the defendant is in, or is intending to come to, his police area; (d) where the order was made on an application under section 104(5), the chief officer of police who made the application. (3) An application under subsection (1) may be made – (a) where the appropriate court is the Crown Court, in accordance with rules of court; (b) in any other case, by complaint. (4) Subject to subsections (5) and (6), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the [SOPO], that the court considers appropriate. (5) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose). …(7) In this section ‘the appropriate court’ means – (a) where the Crown Court or the Court of Appeal made the [SOPO], the Crown Court…’ 19. The relevant rules of court are contained in CPR 31.5 whose provisions include : ‘(1) The court may vary or revoke a behaviour order if – (a) the legislation under which it is made allows the court to do so; and (b) one of the following applies – (i) the prosecutor…’ Further provisions require written application (31.5(2)(a)) and service thereof (31.5(3)(a)). Further the court ‘must not allow an application under this rule unless everyone required to be served, by this rule or by the court, has had at least 14 days in which to make representations, including representations as to whether there should be a hearing’ (31.5(5)(b)). 20. Neither of the persons identified at the foot of the application dated 16 November 2015 was a ‘chief officer of police’. Accordingly Ms Archer accepted that the application did not comply with the requirement of s.108(2). In oral argument she initially submitted that the position was saved by CPR 31.5 (1)(b)(i) which permits an application by ‘the prosecutor’. However on further reflection she acknowledged that, as in any event put beyond doubt by the condition in 31.5(1)(a), the rules could not enlarge the exhaustive list of applicants in s.108(2). 21. In our judgment it must follow that there was no valid application before the Judge; and that accordingly he had no power to vary the SOPO. The Order dated 15 June 2016 headed ‘SHPO’ must therefore be set aside; and the SOPO dated 27 February 2015 will continue in its unamended form. 22. Although we found our decision on the point of jurisdiction raised by the Registrar, we are not satisfied that the evidence in any event met the statutory test for the imposition of these additional prohibitions on the appellant. As already noted s.108(5)(a) empowers the Court to add prohibitions to an existing SOPO ‘…only if it is necessary to do so for the purpose of protecting the public from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose)’. In R v. Smith [2011] EWCA Crim 1772 this Court stated that ‘it is not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence. There must be an identifiable risk of contact offences before this kind of prohibition can be justified’ (para.22). In this case the pre-sentence report concluded that the breaches had not raised the existing risk. The very lateness of the application had the consequence that there was no adequate opportunity for the parties and the Court to focus on these matters.

2017_03_16-3951.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/192/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/192

4cd7da6c460bb3f5c08e7eff7f90c254ba266643c594d34d2fdcff39fe989273

[2010] EWCA Crim 1269

EWCA_Crim_1269

crown_court

Neutral Citation Number: [2010] EWCA Crim 1269 Case No: 2007/6546/D4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT The Hon. Mr Justice Keith T20067156 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/06/2010 Before: LORD JUSTICE MOSES MRS JUSTICE RAFFERTY and MR JUSTICE HEDLEY - - - - - - - - - - - - - - - - - - - - - Between: Keran Louise Henderson Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2010] EWCA Crim 1269 Case No: 2007/6546/D4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT The Hon. Mr Justice Keith T20067156 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/06/2010 Before: LORD JUSTICE MOSES MRS JUSTICE RAFFERTY and MR JUSTICE HEDLEY - - - - - - - - - - - - - - - - - - - - - Between: Keran Louise Henderson Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M Topolski QC and Mr A Scott (instructed by William Bache & Co ) for the Appellant Miss J Glynn QC and Miss S Campbell (instructed by the Crown Prosecution Service ) for the Respondent Hearing dates: 3 rd -5 th March 2010 - - - - - - - - - - - - - - - - - - - - - Case No: 2009/1668/C5 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROYDON CROWN COURT His Honour Judge TMF Stow QC T20077598 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/06/2010 Before: LORD JUSTICE MOSES MRS JUSTICE RAFFERTY and MR JUSTICE HEDLEY - - - - - - - - - - - - - - - - - - - - - Between: Ben Butler Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss S Wass QC and Miss K Thorne (instructed by Mark Williams Associates ) for the Appellant Mr E Brown QC ( who did not appear below ) and Miss N Tahta (instructed by the Crown Prosecution Service ) for the Respondent Hearing dates: 10 th -11th March 2010 Case No: 2007/2024/B5 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Focke QC T20057588 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/06/2010 Before: LORD JUSTICE MOSES MRS JUSTICE RAFFERTY and MRS JUSTICE SHARP - - - - - - - - - - - - - - - - - - - - - Between: Oladapo Oyediran Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr N P Valios QC and Miss K Arden (instructed by Mackesys Solicitors ) for the Appellant Miss S M Howes QC and Mr B P J Kelleher (instructed by the Crown Prosecution Service ) for the Respondent Hearing dates: 24 th -25 th March 2010 Judgment Approved by the court for handing down (subject to editorial corrections) If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document. Lord Justice Moses : Introduction 1. There are few types of case which arouse greater anxiety and controversy than those in which it is alleged that a baby has died as a result of being shaken. It is of note that when the Attorney General undertook a review of 297 cases over a ten year period following the case of R v Cannings [2004] 2 Cr App R 63 , 97 were cases of what is known as “shaken baby syndrome”. The controversy to which such cases gives rise should come as no surprise. A young baby dies whilst under the sole care of a parent or childminder. That child can give no clue to clinicians as to what has happened. Experts, prosecuting authorities and juries must reconstruct as best they can what has happened. There remains a temptation to believe that it is always possible to identify the cause of injury to a child. Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings [177] teaches, even where on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown. 2. This court has heard, over a period of three weeks, three appeals concerning three babies, two of whom died, whilst in the care of a single adult. During the course of the trials a large number of medical experts were called. In two of the appeals what was asserted to be ‘fresh’ medical expert evidence was called. These three cases highlight a particular feature of cases where it is alleged a baby has been shaken in the care of a single adult. The evidence to prove guilt may consist only of expert evidence. It must never be forgotten that that expert evidence is relied upon to prove that the individual defendant is lying in the account he gives, either at the time or at trial. The correct management of such evidence is, therefore, of crucial importance in cases such as these. The correct approach to such evidence must be identified. If a conviction is to be based merely on the evidence of experts then that conviction can only be regarded as safe if the case proceeds on a logically justifiable basis. That entails a logically justifiable basis for accepting or rejecting the expert evidence (see R v Kai-Whitewind [2005] 2 Cr App R 31 [90]). Hearing these three appeals in succession affords an opportunity to make observations on the correct approach and the management of such expert evidence. 3. We should draw attention to the principles we have applied in relation to the admission of fresh evidence pursuant to s.23 of the Criminal Appeal Act 1968 . In all three appeals the appellants sought to adduce fresh expert medical witnesses, although it was not necessary to hear the expert evidence in Butler. As is apparent in a trilogy of cases ( R v Stephen Jones [1997] 1 Cr App R 86, R v Meechan [2009] EWCA Crim 1701 and Kai-Whitewind ) it is difficult to apply the provisions of that section to expert evidence. Where medical evidence is adduced before the Court of Appeal by an appellant from witnesses who were not called at trial and that evidence appears cogent and relevant, it is difficult for this court to exclude it on the basis that that evidence should have been called at trial. There is a danger, therefore, of overlooking the importance of the principle identified by Lord Bingham CJ in Stephen Jones and repeated by Sir Anthony May P in Meechan that it would subvert the trial process if a defendant were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury ( Stephen Jones at [93], Meechan at [1] and [23]). In Kai-Whitewind Judge LJ observed that the court would only in the rarest of circumstances permit repetition or near-repetition of “evidence of the same effect by some other expert”. Trials should not be a “dry run” for experts. Hearings of appeals should not present an opportunity to call new experts in the hope that they might do better than those whose evidence had previously been rejected [97]. We have sought to apply those principles, particularly in the light of the fact that expert reports were obtained for the trial by the defence in Henderson and the defence chose not to call those experts because, in part, they assisted the prosecution. In such a case, an appellant should not be in any better position than an appellant who had called evidence at trial. 4. The important observation of Lord Bingham CJ in R v Pendleton [2002] 1 Cr App R 441 [17] that trial by jury does not mean trial by jury in the first instance and trial by judges in the Court of Appeal in the second, applies no less to cases which depend upon expert evidence than to those which do not. But the difficulty of applying s.23 in cases which depend entirely on expert evidence is more acute. 5. Since the appeal depends upon an assessment of the expert evidence, just as at trial, the preparation and marshalling of that expert evidence is of the utmost importance in achieving just resolution. The appeal requires presentation by counsel experienced and expert in the field of what is contended to be the unexplained death of or injury to a child. Such counsel need to be able to identify focussed issues upon which this court can concentrate and to identify the evidence, whether it be evidence at trial or which it is sought to call, on which resolution of those issues will depend. All counsel we heard in these cases were able to assist due to their experience in cases such as these and to the skill with which they deployed that experience. It is no criticism of other counsel if we highlight the manner in which counsel for the prosecution, Joanna Glynn QC and Sarah Campbell, and for the defence, Mr Topolski QC and Andrew Scott, in Henderson, prepared their appeal. The skeleton arguments were focussed upon the particular medical evidence. Different features of that evidence were clearly identified and when any medical proposition was advanced, it was explained and its source clearly identified. A number of different disciplines were involved, all of which were clearly distinguished by separate files, separately coloured and with the underlying evidence and literature upon which that evidence was based, identified and collated. A core literature file, prepared by Mr Topolski, enabled the court to find and weigh the underlying literature upon which controversial evidence was based. The Vice-President conducted a detailed case management hearing providing timetables and giving directions as to how the evidence was to be prepared. Importantly, meetings were held between the experts so as to identify clearly those issues upon which agreement had been reached and those issues which remained a matter of debate. Without such preparation and obedience to the directions given by the Vice-President it would have been difficult properly to resolve the appeal. The example of the preparation in that case should, we suggest, be followed in future appeals. We shall return to the theme of management and preparation in relation to the conduct of trials when we have considered the individual appeals before this court. 6. There is a further problem to which we should draw attention. Cases such as R v Harris and Others [2006] 1 Cr App R 5 contain detailed analysis of medical evidence and the conclusions of this court on that evidence. In particular, in that case, the court commented upon the cogency of the “triad”: widespread bilateral retinal haemorrhages, thin film subdural haemorrhage and encephalopathy [63] and [69]. The court rejected the unified hypothesis that the same triad of injuries could be caused by lack of oxygen in the tissues leading to brain swelling, a hypothesis which Dr Geddes herself accepted could no longer credibly be put forward [66-68]. These conclusions have inevitably informed the basis of the approach taken by the police and prosecution and have been relied on in argument either at trial or before this court. But it is trite to observe that the conclusion of any court as to the medical evidence, whether at first instance or on appeal, is dependent upon the evidence before that court. No appellate jurisprudence could provide authority for a medical proposition. The strength of a proposition in medicine depends upon the strength of the medical evidence on which it is based. The quality and extent of the evidence will inevitably vary from case to case. Whilst it is now commonly accepted that the triad is strong prima facie evidence of shaking, that depends upon the common acceptance of experts in the field and not upon the conclusion of courts which are only able to weigh the evidence presented before them. Previous legal authority cannot determine whether the conclusion of a medical report should be accepted or rejected. The most legal authority can do is present an accurate record of what was or was not accepted or propounded. 7. We stress this problem because we feared that the medical profession may have looked to the courts to resolve medical controversy. But the difficulty the courts face, in an area of medical controversy, was demonstrated by the course of these appeals. It had been hoped to hear the appeals of Henderson and Butler before the end of 2009. However, renewed controversy in relation to post-mortem findings in cases of traumatic head injury in children led to a meeting at the Royal College of Pathologists on 10 December 2009. The controversy was a matter of concern to the courts as the President, Professor Furness, recognised. At the meeting a number of those recognised to have expertise in the field, who advanced opposing opinions, attended. Certain areas of agreement and disagreement were recorded. But they give rise to two difficulties. Those areas of agreement and disagreement should inform future opinions. It is difficult to see how any expert could advance an opinion to which those conclusions were relevant without at least reference to them. But the record of those areas of agreement and disagreement is not itself evidence. Further, whilst the report had been circulated for amendment, positive confirmation of its content was not received by the President from all the participants. We have not been able to deploy that report save insofar as it was adopted in evidence before us. We should say, however, that, in the evidence before us in these appeals, no expert sought to undermine the proposition that the triad was, as described in Harris , “a strong pointer to non-accidental head injury”. But we should emphasise that none of these three cases is concerned solely with the triad: in Henderson the issue was whether there was evidence of injury independent of and additional to the triad, in Butler one of the issues was whether the unusual fact of the baby’s recovery after the discovery of retinal haemorrhage indicated a cause other than shaking, and in Oyediran the prosecution alleged a distinct and separate injury, namely, fracture of the baby’s arm. For those reasons, we must emphasise that this judgment constitutes legal, not medical, authority and neither adds to nor subtracts from the strength of the evidence afforded by the triad. 8. Two of the appeals, Henderson and Butler, were heard by the same constitution. But in the third appeal, Hedley J was replaced by Sharp J. Counsel in all appeals had the opportunity to study a careful and comprehensive note, for which we are most grateful, made by counsel Gwawr Thomas. All judges have made substantial contribution to the individual appeals but, of course, neither Hedley J nor Sharp J has commented upon the appeal which they did not hear. The appeals were heard in succession, with a week between the second and third, because it was thought that it would be unfortunate if different constitutions wrote different judgments on different occasions when the appeals were heard so closely together. We turn, then, to those individual appeals. Henderson 9. Maeve Shepherd was born on 7 April 2004. On 2 March 2005, when she was just under 11 months old, she suddenly collapsed whilst in the care of the appellant and was taken to hospital. She remained in a critical condition for two days but, tragically, died on 4 March 2005. 10. The appellant was a well-respected childminder of whom witnesses spoke highly. She had been a registered childminder since November 2000 and was permitted to care for up to five children under the age of 8 at any given time. She had, in addition, her own two sons. The prosecution alleged that, on 2 March 2005, she had shaken Maeve, or, in shaking, had caused an impact to her head on a soft surface leading to the baby’s sudden collapse and subsequent death. The appellant was charged with manslaughter. After a six week trial at which the prosecution called eleven expert medical witnesses and the defence one, a jury at Reading Crown Court, on 13 November, 2007, convicted the appellant of manslaughter by a majority of ten to two. Strictly, unless and until the appellant’s application to call fresh evidence is granted, no permission should be given. But the case is of sufficient importance and complexity to grant permission before reaching any conclusion as to the admissibility of that evidence. 11. The appellant, supported by her character witnesses, gave evidence that she had not shaken the baby and was not responsible for her death. The only evidence on which the prosecution could rely to make the jury sure that the appellant was lying was the medical evidence of fact and opinion. This appeal is concerned with fresh evidence from two experts which, it is contended, casts doubt on the reliability of the conclusion that this appellant unlawfully killed Maeve Shepherd. The appeal was focussed on two particular aspects: opthalmological and neuropathological evidence. But it is necessary to place those particular features within the context of the facts and of the expert evidence at trial. Evidence at Trial 12. Until she returned to work, Maeve’s mother looked after her. A family friend then cared for her until the appellant was recommended to Maeve’s parents by a friend. From 31 January Maeve became unwell with a number of infections. The appellant conscientiously kept a diary which travelled home with the baby each evening. From the outset she found difficulty in helping Maeve to feed. On 2 February 2005 Maeve had a cough and runny nose, she vomited three times and the appellant took her to a GP who diagnosed a viral illness. She was sick the following two days whilst in the appellant’s care. Two days later, on 4 February 2005, she spent the day with her mother, appeared very unwell, and was taken to see the GP who diagnosed a chest infection and prescribed antibiotics. Following the weekend, she visited the GP again. On 8 February 2005 when her condition had improved she spent the day with the appellant. She was sick when she was fed. No problems were recorded during the following two days, 9 and 10 February, whilst Maeve was with the appellant. Between 11-13 February, when she was with her parents, her condition improved. 13. On 15 February 2005 events took a more serious turn. Whilst in the care of the appellant, Maeve was sick and the appellant rang Maeve’s mother to tell her that Maeve had banged her head and that the appellant was very worried about her. With Mrs Shepherd’s permission, the appellant took Maeve to the GP and told the doctor that Maeve had rolled over on a hard floor and hit her head. The appellant then, on the doctor’s advice, took Maeve to a local hospital where she was diagnosed with an upper respiratory tract infection. During the next five days Maeve was cared for by her parents; she started to vomit on 17 February 2005. A doctor diagnosed viral illness. But Maeve continued to be unwell and returned to hospital on 19 February 2005 where she was kept under observation for several hours. Upper respiratory tract infection was again diagnosed and she was discharged until the following day, 20 February 2005, when at a paediatric assessment clinic she was noted to be better. The appellant looked after her on 22 February without incident but on 24 February 2005 Maeve was unable to feed, vomited in the morning, and was sick after lunch. Maeve’s father collected her and she was taken to the GP who again diagnosed upper respiratory tract infection and prescribed a course of antibiotics. Maeve remained unwell when she was with her parents on 25 February 2005 but appeared to improve during the following two days. The appellant looked after Maeve on 28 and 29 February 2005 without incident although Maeve vomited on both days. 14. On 2 March 2005 the appellant looked after Maeve from about 7.30 a.m. The appellant took her to a “mother and toddler” group, returning at approximately 11.00 a.m. After Maeve’s collapse a friend who drove Maeve’s mother to the appellant’s house advised the appellant to write down exactly what had happened before she forgot the details. The appellant followed this advice, scrupulously. She recorded that at about 11.10 a.m. Maeve was awake, happy, and was “whizzing around in the baby-walker” but at about 12.00 p.m. she would not eat and spat out the mouthful she was offered. She attempted to change her nappy and noted that Maeve was “grizzling like normal”. She then described the baby having a seizure, screaming, and that she “just went floppy”. The appellant tried to feed her with juice but Maeve was not swallowing at all. The appellant rang 999 and checked her airways and throat but found nothing. 15. The harrowing record of the 999 call demonstrates the appellant’s concern. Particularly, she described Maeve’s difficulty in breathing:- “She keeps losing consciousness…she’s just gone into like a seizure sort of thing. She keeps taking little breaths but she’s not getting anything inside of her. She hasn’t took a breath now for ages. She’s completely rag doll. She’s comatose. She looks dead. She keeps trying to take a breath.” The ambulance arrived at 12.11 p.m. and the paramedics’ report describes a reduced respiratory rate which improved as they attempted to restore the oxygen supply. The Glasgow Coma Scale showed the minimum motor ability (1). She was, in effect, found to be moribund. There was no sign of external injury. 16. Maeve was taken to Wexham Park Hospital. It is of significance to note that retinal haemorrhages were seen at 4.10 p.m., within four hours of admission. She was taken that evening to John Radcliffe Hospital, Oxford. At 5.30 a.m. the following day, 3 March, retinal folds, which had been suggested at 2.00 a.m., were confirmed. 17. Maeve remained on life support but died two and a half days later on the evening of 4 March 2005. 18. There were three medical witnesses who described the symptoms they found whilst Maeve remained alive. Dr Connell, Consultant Paediatrician at Wexham Park Hospital, spoke of the CT scan taken shortly after her arrival, which showed severe and widespread hypoxic-ischaemic damage to her brain. He and three other clinicians saw retinal haemorrhages. He regarded those as signs of inflicted injury and called for various investigations to see whether Maeve’s collapse and subsequent death had been caused by natural causes or trauma. Dr Pike, Consultant Paediatric Neurologist at the John Radcliffe Hospital, initially suspected either a non-specific infection or trauma. He observed retinal haemorrhages and, in the absence of signs of disturbance to Maeve’s blood clotting system, suspected that she had been shaken. Dr Ali, a Consultant in paediatric anaesthesia and paediatric intensive care, gave evidence to similar effect. The Issues 19. The essential issue at trial was whether the prosecution could prove that the appellant’s denial that any traumatic event had occurred on 2 March 2005 was untrue and that the true explanation for the baby’s death was trauma inflicted deliberately by the appellant. The prosecution contended that the expert evidence demonstrated not only all three features of “the triad” but significant and clear characteristics within those features, all of which, taken together, demonstrated injury caused by shaking in a manner which was obviously dangerous. In addition, the prosecution relied on what they contended were two additional features consistent only with trauma: first, traumatic axonal injury in the cortico–spinal tracts and second, retinal folds. The prosecution relied upon eight experts who excluded “natural” causes of death such as infection, metabolic disorder, genetic disorder and malformation of the brain. 20. The defence case was that either Maeve suffered a seizure, possibly triggered by what had happened two weeks earlier on 15 February 2005 or that the cause was unknown and that, in the light of the appellant’s own evidence and the respect in which she was held by others, the prosecution could not prove that she was responsible for injuring the child. Expert Evidence at Trial 21. We can deal comparatively shortly with the issue of whether the prosecution disproved any known “natural” cause of death, such as infection. We emphasise that we are dealing with natural causes of death within the purview of up-to-date medical knowledge because in this appeal we were properly reminded that at no stage can knowledge in a field such as this be regarded as complete and comprehensive. There are limits to the extent of knowledge and no conclusion should be reached without acknowledging the possibility of an unknown cause emerging into the light of medical perception and that the mere exclusion of every possible known cause does not prove the deliberate infliction of violence (see Canning passim and [177]). 22. The evidence of known natural causes of death at trial was comprehensive. Mr Peter Richards, a Consultant Paediatric Neurosurgeon, gave evidence as to the thorough nature of Dr Pike’s investigation as to natural disease. All natural diseases that could cause subdural haemorrhages were excluded. At the trial the appellant relied upon Dr Anslow, a Consultant Paediatric Neuroradiologist. It was his evidence that Maeve might have suffered a seizure brought about spontaneously which resulted in hypoxic-ischaemic brain damage leading to swelling of the brain and raised intra-cranial pressure. As the defence now stress, the evidence of the triad and the retinal folds and axonal damage (the triad with those two additional features) was never challenged, nor was the proposition that they demonstrated violent trauma. The issues of retinal folds and axonal damage were topics outwith the expertise of Dr Anslow. The appellant was unable to explain the two critical features additional to the triad which formed the basis of the prosecution case against her. This appeal is concerned with her attempts to do so now. 23. We turn to the evidence at trial of those two additional features. Professor Risdon, a Consultant Paediatric Histopathologist, explained to the jury the three features of the triad which he said were highly indicative of inflicted head injury by the violent rotation of the head backwards or forwards, such as might be expected if the baby was shaken or the head came to an abrupt halt when in contact with a soft surface. The three features of the triad, present in this case, were encephalopathy, specifically hypoxic-ischaemic brain damage, second, retinal haemorrhages and third, subdural haemorrhages. Whilst he accepted that any of those three individual components could be found in cases other than inflicted injury, it was very unusual to find them together, save in cases of inflicted head injury. He emphasised the importance of the characteristics of each of those components and the importance of considering them as a whole. He acknowledged that there were other individuals who took a contrary view but suggested that they tended to be experts not involved in the day-to-day care and management of abused children. 24. The importance of considering the evidence as a whole and the particular characteristics of the three individual components was emphasised by Dr Stoodley, Consultant Neuroradiologist and Dr Cary, a Forensic Pathologist. None suggested that the presence of the triad, even with the characteristics demonstrated in this case, was dispositive or provided a certain diagnosis. But all emphasised those characteristics indicate what this court described, in R v Harris , as “a strong pointer” to a non-accidental head injury (see [70]). 25. In this appeal, it is unnecessary to dwell on the extent to which a case which merely contains the features of a triad will be sufficient to prove non-accidental injury. This is not a case, we emphasise, on which the prosecution relied merely on the triad. This case is concerned with whether the triad and what the prosecution describe as two additional features were and remain sufficient to prove the appellant’s guilt. Ophthalmological Evidence 26. Whilst Maeve was alive, her eyes were examined by clinicians, Dr Gibson and by Mr Elston, Consultant Ophthalmic Surgeon at the Oxford Eye Hospital, the John Radcliffe Hospital, specialising in paediatric and neuro-ophthalmology. His particular clinical paediatric experience is concerned with examining children’s eyes in a clinical setting. Whilst Maeve was alive, he found retinal haemorrhages in all the different layers of the retina extending throughout the whole of the retina. Second, he found that both eyes had a 360º fold, with an optic nerve sheath haemorrhage in the right eye. As we have recalled, the haemorrhages were first seen at Wexham Park Hospital by non-specialist doctors four hours after Maeve’s collapse. 27. The distribution of these retinal haemorrhages was, so Mr Elston told the jury, indicative of trauma. They were consistent with shaking or a shaking and impact but not with accidental trauma or non-traumatic raised intra-cranial pressure. Raised intra-cranial pressure was eliminated for reasons which need not now detain us (the two possible causes, retinal haemorrhages secondary to persistently elevated intra-cranial pressure causing papilloedema and cases of Terson’s syndrome were excluded). The time when these haemorrhages were first seen was particularly important in excluding non-traumatic raised intra-cranial pressure as a cause. The next feature of the retinal haemorrhages which is of importance is their effect. They would have rendered Maeve blind or almost blind as soon as they were sustained. The eye injuries must, accordingly, have been sustained shortly before midday on 2 March 2005 since she was awake and happy, “whizzing around in her baby-walker” after about 11.10 a.m. The other important feature was the discovery of retinal folds. Mr Elston told the jury that he had only seen such perimacular retinal folds in cases of trauma. That may include accidental trauma, accompanied by external signs of injury, but most commonly caused by shaking or a combination of shaking and impact. Mr Elston told the jury that in 25 years of clinical paediatric ophthalmology he had only seen retinal folds cases of shaking or shaking and impact. 28. At the trial the defence legal team had obtained a report from a Consultant Histopathologist and Ophthalmic Pathologist, Dr John McCarthy. The report was disclosed to the prosecution in August 2007: his evidence of the extent of the haemorrhages was consistent with that of Mr Elston. In those circumstances he was not called. But the defence now rely upon an expert of the same discipline as Dr McCarthy to cast doubt on the safety of Mr Elston’s conclusions. That expert is Professor Luthert. 29. Professor Luthert is a Professor of Pathology and Consultant Ophthalmologist at the UCL Institute of Ophthalmology. His distinguished career and qualifications were not the subject of any challenge by the prosecution and so it is unnecessary for us to give their detail. The prosecution merely point out that he is not a clinician but a pathologist of similar standing to Dr McCarthy, whom the defence at trial chose not to call. Professor Luthert produced three reports dated 8 July 2008, 23 February 2009 and a consolidated report dated 5 October 2009. There was a joint conference between him and Mr Elston from which a document was produced, signed by both. In his first report Professor Luthert said that whilst shaking could be the cause of the retinal haemorrhages and retinal folds, “the evidence base is not as strong as one might hope for”. He referred to raised intra-cranial pressure. This can be excluded for the reasons we have given [26]. He also referred to a case of very extensive retinal haemorrhages caused by meningitis. Meningitis has been excluded in this case. He concludes: “I think it entirely reasonable to consider it likely that Maeve collapsed due to inflicted trauma. There is no known, well-documented alternate explanation that I am aware of that fits with what I have read of the clinical and pathological findings in this case. Nevertheless, for reasons I have outlined above, I consider it problematic to assume that the ‘triad’ is diagnostic of trauma and I think this view is increasingly widely held. I am concerned that the findings in the eyes should not be interpreted as direct evidence of trauma.” 30. After Professor Luthert had received the ophthalmic pathology slides he composed a second report dated 23 February 2009 in which he repeats that he has read nothing incompatible with inflicted head injury and adds that he knows of no other “witnessed and validated cause of the above triad other than, rarely, accidental injury”. He accepts in that report that there is a strong association between trauma and perimacular folds. In his final, summary note, he reiterates that he believes that the triad can occur as a result of trauma and that nothing in the eyes or in the documentation which he read was “strongly suggestive of an alternative diagnosis”. But he repeats that the findings are not diagnostic of trauma. 31. In his first report Professor Luthert says that the cause of retinal haemorrhages in cases of alleged head injury in infants is not known. He refers to hypotheses including trauma-induced tractional forces between the vitreous and retina, increased retinal intra-vascular pressure, secondary to increased intra-cranial pressure, splinting of the chest during shaking and loss of normal control of vascular tone (loss of auto regulation). Additionally, the mechanism of retinal fold formation is not known with certainty. Professor Luthert accepts that such folds are more commonly seen in more severe cases of retinal haemorrhage but he does not believe that there is “compelling evidence that they arise from trauma-related tractional forces from the retina”. He advances what he describes as an equally tenable alternate hypothesis, namely:- “They arise from profound expansion of the retina due to haemorrhage and oedema (increased tissue fluid following injury).” 32. In this second report dated 23 February 2009 he concludes:- “I cannot be certain that an admittedly unknown non-traumatic aetiology can lead to the triad” ( we think can should read cannot ). 33. Professor Luthert also referred to some experimental data supporting a non-traumatic cause as the mechanism for retinal fold formation. This is a reference to correspondence from Dr Gardiner commenting on a paper by Dr Sturm in the American Journal of Ophthalmology of April 2008. Dr Sturm had suggested that a process, known as OCT, revealed morphological changes, missed by clinical examination, which provided data in favour of the theory of vitreo-retinal traction as a direct mechanical effect attributable to rapid head movements which occur when a baby is shaken. That view was criticised by Dr Gardiner who suggested that the haemorrhage itself might raise the fold. Dr Sturm disagreed, not least because the vitreous of young children is much more adherent to the retina than it is in adults. 34. Mr Elston rejected Dr Gardiner’s challenge to Dr Sturm’s paper on the basis of his clinical observation. Dr Gardiner had suggested that haemorrhaging itself might cause a raise in the fold. Mr Elston said that the hypothesis was not relevant in Maeve’s case because Dr Gardiner’s hypothesis requires a cavity posterior to the apices of the folds to be full of blood. Maeve’s were not (see Elston’s report 10 March 2009). Mr Elston rejected Professor Luthert’s reliance upon animal experiments on kittens ( Troll 1999) and hamsters ( Khalifa 1991). 35. The reports of Professor Luthert led, as we have said, to a meeting. The joint report which emerged and was signed by both Mr Elston and Professor Luthert is dated 20 January 2010. The clinical and pathological findings were agreed. The report records:- “The experts further agreed that:- i) The focal brain stem/spinal cord injury is understood to be of traumatic origin and provides evidence of focal injury to the central nervous system, contemporary with the retinal injury (this is, in fact, controversial but depends on a dispute between non-ophthalmological experts: we deal with this below). ii) The known causes of injuries to the central nervous system and the eye listed in sections 1 and 2 above, when seen together, are all traumatic in origin (see below). The mechanism by which such trauma leads to the physical signs in the eye is not known, but the fundamental aetiology is traumatic. iii) The presence of prior subdural haemorrhage does not pre-dispose the eye to development of the clinical and pathological findings noted in this case.” 36. Under the heading “Causes of the Ophthalmological Clinical and Pathological Findings” known and verifiable causes of the very severe haemorrhagic retinopathy and the perimacular fold were agreed to be inflicted injury in the form of shaking or shaking and impact. Other causes, such as a fatal crush head injury or a single impact head injury or Terson Syndrome, were excluded. Under the heading “Mechanism of Eye Signs” it was accepted that the mechanism of the formation of retinal folds with pan-retinal haemorrhagic retinopathy was not known with certainty. The joint report refers to the hypothesis that the findings were due to trauma related to acute tractional forces or an alternative hypothesis that the retinal folds can be caused by “acute expansion of the retina with haemorrhagic retinopathy due to failure of retinal vascular auto regulation and folding of the ischaemic retina”. 37. Professor Luthert gave oral evidence before us which was consistent with the evidence in his reports. In his oral evidence he emphasised that, absent certainty as to how folds are caused, they do not, in his opinion, provide evidence distinct from the evidence of the triad. Accordingly, very extensive retinal haemorrhages could themselves be reasonably expected to cause retinal folds. His view was that such folds were not independent evidence of trauma but merely a manifestation of very severe retinal haemorrhage. In cross-examination he repeated that neither the folds nor the optic nerve sheath haemorrhage were independent of the retinal haemorrhages themselves. 38. During the course of his evidence Professor Luthert referred to some form of ALTE (acute life-threatening event) which could result in disturbance to circulation, inadequate supply of oxygen to the retina and associated changes in intra-cranial pressure. 39. There was a striking development since trial. At trial it was accepted that the only known cause of retinal folds was trauma. Between the time of the reports and Professor Luthert’s evidence, one case emerged of perimacular folds associated with extensive retinal haemorrhages not due to trauma but rather to acute myeloid leukaemia suffered by a 14 year-old (Bhatnagar and others ARCH Ophthalmol Vol 127 November 2009). The paper demonstrated that perimacular folds could be caused other than by trauma although this was unknown both at the time of trial and at the time the reports were prepared for the purposes of this appeal. It was not suggested that Maeve suffered from leukaemia. But the report powerfully demonstrated, so it was contended, a cause which was previously unknown, unrelated to trauma and unforeseen and unexpected. It demonstrated the limits of knowledge at any given time in the field of medical science. The previously accepted proposition that only trauma can cause retinal folds was shown to be incorrect. 40. Professor Luthert accepted that it is reasonable to conclude that Maeve suffered from inflicted trauma and was himself unable to provide any alternative to a traumatic cause to the eye injuries. He accepted that hypoxic-ischaemic injury to the brain is not a recognised cause of extensive retinal haemorrhages with folds (second report, dated 23 February 2009). 41. We accept, not least because the experts were agreed, that the mechanism of retinal fold formation is not known with certainty. But we reject Professor Luthert’s suggestion that the existence of retinal folds is not a feature additional to the triad. The triad affords strong support, whilst not being conclusive, of shaking or shaking and impact injury absent the presence of retinal folds. Since it is not known how retinal folds are formed there is no sound evidential basis for saying that they occur merely as a result of a haemorrhage. Mr Elston’s evidence, as a clinician, that in 25 years of paediatric ophthalmology he has only ever seen retinal folds in shaking or shaking and impact cases (his evidence at trial, repeated in his report dated 10 March 2009) persuades us that the folds are features pointing towards shaking or shaking with impact over and above the appearance of the haemorrhage. 42. Professor Luthert’s evidence does not challenge the association between retinal folds and trauma. No doubt that is the reason why he reached the agreement we have set out above at [36]. In effect, he is urging more caution in reaching any diagnostic conclusion. But he does not seek to dispute Mr Elston’s clinical experience and, indeed, he is in no position to do so since he is a pathologist and not a clinician. Moreover, in his evidence he is unable to suggest any alternative reason for the retinal haemorrhages and in particular their appearance, extent and location. Nor is he able to put forward any alternative cause for the folds, other than that they are to be regarded as attributable to the haemorrhages. In particular, the evidence obtained from other paediatric clinicians since the trial excludes infection as a realistic cause of the retinal haemorrhages. Professor Pollard, Professor of Paediatric Infection and Immunity at Oxford University, excludes systemic infection as a cause of the haemorrhages in the absence of any coagulation disturbance associated with shock. Professor Klein, Professor of Infectious Diseases and Immunology at the Institute of Child Health and an Honorary Consultant in Great Ormond Street Hospital, gives, in his final report dated 11 November 2009, similar evidence. He and Dr Peters, Senior Lecturer in Paediatric Intensive Care at UCL, and Consultant Paediatric Neo-Natal Intensivist at Great Ormond Street Hospital, reject resuscitation as a cause of the retinal haemorrhages. 43. In those circumstances, Professor’s Luthert’s evidence amounts to no more than an expression of greater doubt and greater caution than that to which Mr Elston would subscribe. The discovery of a case of retinal folds due to leukaemia, and, thus, without any traumatic cause, emphasises the importance of recognising the limits of medical knowledge at any given time and the need to appreciate that that which has never previously been contemplated may nonetheless occur. 44. We must recognise the limits of medical science and in particular that there may be events, deaths or symptoms which are unexplained and unforeseen. Further, any conclusion must acknowledge the importance of the burden of proof in the context of cases such as these. It is not for the defence to provide any explanation; the mere fact that it is unable to do so is not of itself a sound basis for concluding that the prosecution’s evidence is correct. 45. But we must also recall that we are dealing with an appeal and not with a trial. The essential question is whether Professor Luthert’s evidence casts doubt on the safety of the verdict. We remind ourselves that the evidence comes, like the evidence from Dr McCarthy, whom the defence chose not to call, from an expert pathologist of the same discipline as Dr McCarthy. For the reasons we have given, Professor’s Luthert’s evidence is, at its heart, no different from the evidence of Dr McCarthy save as to expressions of greater caution and doubt. In the absence of any new explanation as to the cause of the haemorrhages or folds, it does not undermine the evidence given by Mr Elston. 46. The joint report appeared to demonstrate the consensus between Professor Luthert and Mr Elston that known causes of the constellation of injuries, particularly the recent acute onset of haemorrhage and retinal folds, were all traumatic. Perhaps, on first reading, we failed to appreciate the emphasis upon “known” causes. Essentially, Professor Luthert’s evidence amounted to no more than that the injuries were probably due to shaking or shaking with some impact but that he could not be certain. That in our view is insufficient to undermine the safety of Mr Elston’s conclusion. 47. There is one further aspect of Professor Luthert’s evidence to which we ought to draw attention. The evidence of any expert in a particular field is inevitably limited to the field in which he professes expertise. That, of course, is why no expert can be in the position of a jury or, for that matter, of this court, able to put particular evidence in the context of the totality. Professor Luthert acknowledged this in referring to the evidence of traumatic injury to the nerve fibres (“traumatic axonal injury”). He accepted that that would be additional evidence of trauma, outside his field of expertise, and would diminish the relevance of his discussion as to the interpretation of what he called “the triad alone” (see his note dated 5 October 2009). It is, accordingly, necessary to turn to the evidence of the damage to the nerve fibres. Axonal Trauma: Neuropathological Evidence 48. The second factor on which the prosecution relied as additional to the triad was founded on the evidence of Dr Al-Sarraj, a Consultant Neuropathologist, that he had identified traumatic axonal injury in the cortico-spinal tracts by the use of beta-app staining. He distinguished that type of injury from diffuse axonal injury. As Professor Luthert accepted, if that evidence was accepted, it was a powerful indication, when added to the evidence of the triad, of a shaking or shaking and impact injury. 49. At trial, the two neuropathologists called by the Crown, Dr Squier and Dr Al-Sarraj, both asserted that they could distinguish between diffuse axonal injury and traumatic axonal injury. Dr Al-Sarraj asserted that he could determine that the traumatic axonal injury was about two to three days old, consistent with Maeve sustaining that injury on 2 March 2005. The defence challenged Dr Al-Sarraj’s ability to make the distinction. But Dr Al-Sarraj relied in part on slides taken by Dr Geddes as part of her research in papers which have become known as Geddes I and II, and on Reichard “The Significance of Beta App Immunoreactivity in Forensic Practice”. Dr Al-Sarraj also relied upon his own research, published literature and experience. A critical feature for distinction was the location of the axonal damage in the cortico-spinal tracts and the appearance of the severed axons, the ends of which pick up the stain and show up as round globules rather than a diffuse cloud or “granular staining”, as Dr Al-Sarraj described it. The distinction was important in demonstrating that the cause was not ischemia which will affect the whole area in which there is a lack of oxygen. Traumatic injury will cut individual axons causing a leak of protein which will show on the beta app stain (this particular evidence became clear in response to a pointed jury question at the end of Dr Al-Sarraj’s cross-examination). 50. In Geddes I, “Neuropathology of Inflicted Head Injury in Children” ( Brain [2001] 124 (1290-1298) and II (1299-1306), Dr Geddes demonstrated that the brain damage caused by non-accidental head injury suffered by children was due not to the trauma but to oxygen starvation, i.e., hypoxic-ischaemic damage. But for the purposes of the neuropathology in the instant case what is important about both Dr Geddes’s papers is the reference to axonal damage at the cranio-cervical junction. Dr Geddes sought to distinguish between axonal damage caused by trauma and axonal damage secondary to hypoxia-ischaemia, raised intra-cranial pressure and/or brain shift (1297). Localised axonal damage demonstrated in cortico-spinal tracts was regarded as significant. In Geddes II the authors identified foci of ischaemic-type staining in the dorsal brain stem but remarked:- “However, the staining in the cortico-spinal tracts was quite distinct, affecting variable numbers of axons in these fibre bundles bilaterally and appeared to represent localised traumatic axonal injury at the cranio-cervical junction. We believe that this pattern results from non-disruptive stretch injury to the neuraxis.” (1305) In Reichard, (Neuropathology and Applied Neurobiology [2005] 31) Dr Reichard reviewed seventy-three cases and assessed them “blind” to the clinical history. His assessment endorsed the value of beta app staining in assessing the extent of axonal injury and in particular that it was of “the greatest utility” in the assessment of traumatic brain injury. The evidence of Dr Al-Sarraj and Dr Squier on this aspect, coupled with the literature on which it was based, was not met by any contrary evidence called on behalf of the defence. The defence had instructed Dr Colin Smith, a highly experienced expert in “neuropathology and baby-shaking” who was a co-author of the Reichard paper to which we have already referred. It chose not to call him although his evidence was served on the prosecution; it did not assist the defence. The defence also obtained a report from Professor Milroy, Professor of Forensic Pathology at the University of Sheffield on which, since it supported the prosecution, the defence did not rely. 51. The defence now seek to rely upon Dr Leestma and we received his reports and heard oral evidence from him. Dr Leestma is a neuropathologist from Chicago. He was Professor of Pathology and Neurology at the University of Chicago between 1986 and 1987 and Neuropathologist and Associate Medical Director for the Chicago Institute of Neurosurgery and Neuro Research between 1987 and 2002 and a Neuropathology Consultant for the Children’s Memorial Hospital of North Western University Medical Centre Chicago between 2003 and 2005. He has been consulted in matters of forensic neuropathology in private practice for the past thirty years. He advanced a number of propositions in reports dated 10 July 2008, 2 February 2009 and 24 June 2009. Not all of them survived by the time he gave oral evidence before us. In particular, he had previously raised the possibility that the axonal pathology may have been due to artefacts produced by removal of the brain and cord post-mortem. After discussion with Dr Al-Sarraj and after a meeting between the two doctors, he no longer pursued that possibility. When he wrote his first report dated 10 July 2008 Dr Leestma suggested that whilst subdural haematomas in infancy are more likely to be due to physical forces, inflicted or accidental, “there are a host of natural disease states that can cause them”. Now that the appellant has expressly abandoned infection as a cause of the constellation of symptoms from which Maeve suffered and that it is accepted that those symptoms are not attributable to any known infection, Dr Leestma’s proposition, that there are many rational explanations for Maeve’s symptoms other than abuse, was no longer relied upon. 52. Dr Leestma also suggested, in his first report, an accidental “short” fall followed by a lucid interval. This suggestion is no longer pursued and was abandoned by those now acting for the appellant during the course of the preparation of the appeal. It was, in any event, the subject of undisputed evidence at trial. Particular reliance was placed upon the fact that no space-occupying subdural haematoma was found. 53. The absence of a space-occupying subdural haematoma is also of importance in relation to a further possibility raised by Dr Leestma: that the recent haemorrhage was caused by a re-bleed from a subdural haematoma sustained two weeks earlier; it was part of the natural process of the chronic subdural haematoma. The undisputed evidence at trial was that any re-bleed would not have caused the catastrophic injury and death of Maeve. Dr Al-Sarraj accepted that recent bleeding could be a re-bleed from an old haematoma but there was only a small amount of subdural haematoma found and that would not explain Maeve’s death. The refutation of Dr Leestma’s written suggestion as to the cause of the subdural haemorrhage is summed up by the clinician Dr Peters. He said that in his sixteen years of practice in Great Ormond Street:- “I have never seen a clinically detectable subdural haemorrhage in the absence of trauma, severe central nervous system injury such as a stroke, or an abnormal bleeding tendency.” The last two have been eliminated. At trial, Dr Cary (a Forensic Pathologist) regarded the signs of fresh subdural bleeding as a marker for what had happened in the brain, showing the application of angular rotational force. 54. The most significant part of Dr Leestma’s evidence challenged the prosecution’s assertions that it was possible to attribute the appearance of axonal damage within the cortico-spinal tracts to trauma. In his report dated 24 June 2009 he stated that the staining did not necessarily reflect any form of physical injury and that:- “In the presence of obvious “respirator” brain changes from perfusion failure of the brain and possibly parts of the spinal cord it is probably impossible to differentiate beta app reaction products due to true axonal injury (physical forces) from those due to many complex processes such as circulation failure, hypoxia, oedema and various artefacts of removal and preparation which were present in this case. To conclude that shaking forces were involved in this case requires far more scientific proof that this is a bona fide mechanism of injury than exists.” 55. Dr Leestma had clearly laboured under a difficulty from lack of access to the full set of slides on which Dr Al-Sarraj and Dr Squier had relied and, at least originally, from lack of familiarity with the papers. Prior to his oral evidence before this court, however, there was a meeting at which, on examination of block 13, both experts agreed that deposits of beta app staining in the middle of the cortico-spinal tracts were of a different pattern from that which had been in other areas. They were well-defined isolated globules without a granular background. At that meeting Dr Leestma commented that Dr Al-Sarraj’s view of the significance of well-defined isolated globules “may well be right, I just don’t know”. Dr Leestma did agree that removal of the tissue post-mortem was unlikely to be a reason for the signs observed in the spinal cord. He also commented that beta app staining “was not available when he was doing this kind of work”. 56. At the hearing of the appeal Dr Al-Sarraj repeated and demonstrated particular examples of well-defined globules of beta app staining different from the structure of those to which he attributed ischaemia. He pointed out that they were specific within the cortico-spinal tract and consistent with trauma. They were not consistent with ischaemia. 57. Dr Leestma, in his oral evidence, repeated that he had used beta app testing in his career but not recently. He was, however, familiar with it. He repeated his concern as to the cause of recent bleeding. During cross-examination he revealed that he had not read either Geddes I or II and was thus unfamiliar with their references to the ability to distinguish traumatic axonal injury in the cortico-spinal tract and its significance. He admitted that he had not previously appreciated that Reichard was a blinded study. As he explained in his evidence, he had not understood the significance of the slides described as “block 13” which showed the different pattern of staining in the medulla and cortico-spinal tract. Dr Leestma asserted that it would be possible to observe a destroyed or damaged axon longitudinally and thus one should see a number of damaged axons in one cross-section. 58. This assertion led to Dr Al-Sarraj being recalled. He explained that, if an axon was torn, such damage would not be shown throughout the whole length of the axon but only at a particular location. Whether it was observed or not would depend upon where the cross-section was taken. He disagreed with Dr Leestma that one would expect the damage to extend along the length of the axon; rather the axon would be torn at a particular location. Thus the number of axons shown as damaged in a cross-section would not be of significance. 59. Dr Leestma also placed reliance upon the absence of any damage to the axons controlling respiration. Dr Al-Sarraj took the view that those axons controlling respiration were, by reason of their location, less vulnerable. He had observed damage to the axons within the cortico-spinal tract where those axons were more vulnerable than those controlling respiration. 60. During the course of his cross-examination Dr Leestma told the court that he had diagnosed baby-shaking many years before in the middle-to-late 1980s, but that in his consulting role he had seen many cases of head injury to babies where there were external signs. He accepted that he had not systematically reviewed the literature since the mid-1990s. 61. In our judgment, Dr Leestma’s experience was more historic and far more limited than that of Dr Al-Sarraj. He has not conducted autopsies or given evidence in cases involved with baby-shaking for many years. His knowledge emerges from studies of the literature which excluded the important material contained in Geddes I and II and Reichard. Until his meeting with Dr Al-Sarraj, he had never appreciated the significance of the signs of axonal damage in the cortico-spinal tract. His lack of experience and his lack of appreciation of the importance of this point leads us to the conclusion that his evidence was fundamentally flawed. His insistence on asserting that it was not possible to attribute significance to that axonal damage flies in the face of the references in both Geddes I, II and Reichard and the evidence which flows from Dr Al-Sarraj’s up-to-date experience. We reject his evidence insofar as it fails to attribute significance to that which the beta app staining revealed. 62. Further, for the reasons we have given, we reject his evidence as to the significance of any re-bleed. As he himself accepts in his first report dated 10 July 2008, if the brain-stem and other structures had sustained what he described as “true axonal injury” before hospitalisation the baby would not be behaving normally and would “in many ways not be “functioning”. This evidence, consistent with evidence given at trial and coupled with the effect of the eye injuries which would have almost blinded Maeve instantly, demonstrates that there is no basis for advancing the proposition that Maeve collapsed as a result of trauma on 15 February 2005 followed by a lucid interval until 2 March 2005. 63. Professor Luthert had recognised the importance of the signs of traumatic injury to the axons. In our judgment, nothing in the evidence of Dr Leestma suggested that the importance attached to those signs of injury was unfounded. Indeed, the willingness of Dr Leestma to advance propositions which he subsequently had to withdraw in the light of his greater knowledge of this case, coupled with his lack of up-to-date experience, severely damaged and undermined the effect of his evidence. We would have had considerable doubts as to whether he was properly qualified to give evidence designed to refute the evidence given by Dr Al-Sarraj or Dr Squier at trial. We did not reach any concluded view as to that. It is sufficient to conclude that his evidence did not cast doubt upon the safety of the verdict insofar as it relied upon the signs of traumatic injury to the axons in the cortico-spinal tract. 64. The consequences of our conclusion as to Dr Leestma’s evidence are that there remains at least one feature of Maeve’s symptoms additional to those constituting the triad. Even if we had accepted Professor Luthert’s evidence that the perimacular folds may have been attributable to the haemorrhaging and were, therefore, just an aspect of the opthalmological symptoms of the triad, the evidence of traumatic damage to the axons affords powerful additional evidence of trauma. It forms, with the other undisputed symptoms, a safe foundation for the verdict of guilty. Other Causes 65. Our focus on the two elements of retinal folds and axonal damage should not be thought to have been the only bases of challenge to the jury’s verdict. Although the appeal was focussed on those two aspects of Maeve’s symptoms, it is important to record the extent to which other possible causes of her collapse and death have been explored since the trial. On 28 February 2008 provisional grounds of appeal were advanced criticising the appellant’s original defence team in their failure to call expert evidence in paediatrics, biomechanical engineering and ophthalmology. It was also suggested that some of the expert witnesses for the prosecution had given inconsistent evidence in another case. Subsequently, following the Crown’s written submission in reply, the appellant abandoned all three grounds. 66. By way of further written argument dated 10 October 2008 the appellant applied to call fresh evidence from six experts; three of them, Dr Walters, a Chemical Pathologist, Dr Thibault, dealing with biomechanics, and Dr Plunkett, a General Forensic Pathologist, raised the possibility that Maeve had suffered a fall over a short distance on 15 February 2005 and thereafter had a lucid interval until a further collapse on 2 March 2005. It is necessary to recall that Dr Squier, called on behalf of the prosecution at trial, whilst agreeing with Dr Al-Sarraj as to the identification of traumatic axonal damage, nevertheless took the view, contrary to the opinion of Dr Al-Sarraj, that it could be dated back to 15 February 2005. After the trial she made a further report, although she accepted her lack of expertise in that area. 67. The difficulty with any theory of injury caused on 15 February 2005 is the evidence of Mr Elston, Mr Peter Richards and Dr Al-Sarraj that the axonal injury was not survivable and that the retinal haemorrhage and folds would have caused blindness. Thus the evidence of the appellant, as we have already pointed out, was wholly inconsistent with an earlier injury followed by a lucid interval. 68. The appellant did not pursue this line of argument and was thus left with the evidence of Professor Luthert and Dr Leestma and with a third expert whom she indicated would be called, Professor Morris, a General Histopathologist. Professor Morris was relied upon both before and during the course of the appeal to suggest either some unknown infection or restoration of the circulation following cessation of breathing (reperfusion). The prosecution were prepared to call Professor Klein, Professor of Infectious Diseases and Immunology at the Institute of Child Health, Professor Pollard, Professor of Paediatric Infection and Immunity at University of Oxford, who gave evidence at trial, and Dr Peters, the Paediatric Intensivist. There was a warning that further experts might be relied upon by the prosecution. 69. Professor Morris gave oral evidence to us which suggested that he was prepared to consider as a realistic possibility that an unknown infection had caused hypoxic-ischaemic damage and it is that which caused both the subdural haemorrhaging and the bilateral retinal haemorrhaging. He accepted that he was not qualified to deal with the ophthalmological symptoms nor the question of axonal injury. It appeared that Professor Morris was tending to revive the unified hypothesis in Geddes III which was rejected in R v Harris . Mr Topolski QC, rightly and with customary frankness, abandoned reliance upon Professor Morris and made it clear that he would not contend that infection was a cause of Maeve’s collapse and death. But it is necessary, in the context of the other arguments which he maintained, to record some of the written evidence and oral evidence from, particularly, Dr Peters, which places the arguments on which the appellant did rely in the context of all the expert evidence which remained relevant in the appeal. 70. Professor Morris did not persist in contending that the explanation for Maeve’s symptoms was reperfusion. But he would not accept that no causal link has ever been made between hypoxic-ischaemic injury and subdural haemorrhages or retinal haemorrhages. We refer again to Dr Peters’ evidence of his clinical experience, recorded [53]. Moreover, there is ample literature to support his proposition that hypoxia does not cause subdural bleeding in infants ( Byard (2007) ( Paediatric and Development Pathology 10 ). The paper considered a series of eighty-two foetuses of infants and toddlers up to 3 years who died following hypoxic cardiac arrest in which no single macroscopic subdural haemorrhage was detected. To similar effect was a study of critically ill children admitted to Great Ormond Street Hospital in Jackman (2007) and in a more recent paper, by Matschke in Paediatrics ( the American Academy of Paediatrics December 2009 ) in which, following 715 autopsies of infants who had died before the age of 1 year from one institution over a fifty year period, the data argued strongly against the unified hypothesis proffered in Geddes III and “strengthens the association between subdural bleeding and non-accidental head injury in infancy” (page 1). 71. Any suggestion of septic shock, as a cause of the bilateral multi-layer retinal bleeding or retinal folds, was dismissed in the absence of any coagulation disturbance associated with such shock. 72. In his oral evidence Dr Peters again confirmed that there was no connection between the swelling of the brain and the apparent haemorrhaging in Maeve’s case. The timing in Maeve’s case excluded the possibility that the brain-swelling caused the haemorrhage since such haemorrhages were observable early after four hours whereas the swelling would peak at between twenty-four to forty-eight hours after the crisis. The only time he had seen the pattern of events apparent in Maeve’s case was following trauma. We refer to this evidence again because it seems to us to demonstrate the force of the triad in this case. The appearance of the symptoms, particularly the haemorrhaging at every level in the retina, coupled with the non-space-occupying subdural haematoma and the encephalopathy showed that this was a case where the triad itself afforded a strong basis for the conclusion that shaking or shaking and impact was the cause of Maeve’s sudden collapse. Neither infection nor reperfusion, on the undisputed evidence both at trial and before this court, explained the retinal haemorrhages and folds or the subdural haematoma. Conclusion 73. Accordingly, every effort has been made to explore every available avenue in an understandable attempt to undermine the safety of the jury’s verdict. 74. We describe the attempts as understandable because there remains the unsolved mystery of how so admired a childminder as this appellant should have been responsible for the use of excessive force, even momentarily, when handling this baby. But that was a problem with which the jury had to grapple. There is no basis upon which this court can say that the jury was not entitled, after being properly directed by Keith J, to conclude that the expert evidence proved, beyond a reasonable doubt, that the defendant had shaken Maeve with excessive force. 75. There has never been an issue as to the degree of force used. It has never been suggested that if the defendant shook Maeve she may not have realised she was using excessive force. 76. We must also bear in mind the admirable directions given by Keith J. They were “directions”, not an unstructured journey through the expert evidence. He made clear to the jury the issues which they had to decide and the rival bases on which they could reject or accept the evidence. The route the jury took to conviction is quite plain, on reading the summing-up. 77. In particular, the judge directed the jury as to the need to bear in mind that medical science in relation to non-accidental head injury is developing, and as the defence would have it, uncertain, and that it may not be possible to identify the cause of death. He gave a positive and correct direction that the jury had to consider whether the death may be unexplained. He directed them that they had to be sure that unexplained death could be excluded. 78. Further, it is of importance to note that he stressed that the defence was under no obligation to advance any particular theory as to cause of death and that rejection of the theory of spontaneous seizure did not of itself mean that the jury was required to accept the prosecution case and convict. 79. Accordingly, this is a case where the issue of unexplained cause in an area of developing medical science was properly laid before the jury. The justification for rejection of that possibility and for acceptance of the prosecution case is plain from the summing-up. 80. We remain concerned as to how the appellant finds herself in the unenviable position of seeking to establish that the jury’s verdict was unsafe, having served the severe sentence of three years. But our sympathies for everyone concerned, Maeve’s parents and the appellant, cannot subvert our function. We cannot substitute, for the jury’s verdict, a conclusion based upon perplexity as to how this appellant could have treated Maeve with unlawful force, even momentarily. That was an issue which the jury resolved. 81. The evidence in the Bhatnagar paper was new. The fresh evidence was, in substance, not fresh evidence at all. The witnesses were “fresh”, their evidence was not. It was evidence from experts in the same disciplines as those whose reports the defence had previously obtained but decided not to call. The appellant’s previous representatives had chosen not to call the expert evidence because it helped the prosecution. That was a choice within the bounds of reasonable decision. If they had called that evidence and the jury had convicted, they would, probably, not have been permitted to adduce further evidence from experts in the same disciplines. They should not be in a better position because of a previous, sensible choice not to call the experts. 82. But, given the complex nature of this case, we prefer for the reasons given in Kai-Whitewind to deal with this case on the basis of the substance of the evidence we heard de bene esse . It would have been wrong to reject that evidence without hearing it, even though the witnesses came from the same areas of expertise as those previously available. 83. Now that we have heard that evidence, we conclude, for the reasons advanced earlier, that it does not undermine the safety of the verdict. Accordingly, we dismiss the appeal. Butler 84. On the evening of the 15 th February 2007 Ellie Butler, then aged about 7 weeks, was rushed to hospital by her father. Although she bore no outward mark of recent injury, it was in due course discovered that she had suffered a serious head injury. In particular she had an encephalopathy, multiple subdural haemorrhages and multiple retinal haemorrhages –“the Triad”. 85. At the time of admission it was noticed that the child had injuries on the forehead and hand consistent with burns. Enquiries revealed that, on 7 February, Ellie, whilst in the care of her father, had rolled off a pillow and had come into contact with a radiator. The child had been taken to the general practitioner and treated and there had been no concern at the time that there were any child protection issues. These matters were reviewed in the aftermath of the head injury and he was charged. 86. At the end of a four week trial, in which the prosecution had called fifteen medical witnesses and the defendant three, the appellant was convicted of causing grievous bodily harm contrary to s.20 of The Offences Against the Person Act 1861 and cruelty contrary to S.1 of The Children and Young Persons Act 1933 and sentenced to concurrent terms of 18 months and 1 month imprisonment. He obtained leave to appeal against conviction from the Single Judge and was on October 2009 admitted to bail by a different constitution of this court. 87. The case was tried at Croydon Crown Court before His Honour Judge Timothy Stow Q.C. and a jury. The unusual feature of this case was the fact that, happily, Ellie had made a complete recovery from her head injury and, given the absence of either external sign of this injury or any other relevant injury, it was, therefore, a case to be tried almost entirely on the basis of medical evidence and opinion. 88. Thus it was that the decision to join the other incident and then to refuse to sever became more important than it might otherwise have been. The burning incident was comparatively trivial and was never suggested as having been deliberate; it was left to the jury on the basis of recklessness. Indeed, had it stood alone, there is every reason to think that it may not have been the subject of criminal prosecution at all and would have been viewed as a piece of “new parent carelessness”. It is true that the Judge gave a careful direction to treat them separately but the reality is that this incident provided the only concrete example of any misdoing by the appellant and in a case such as this, it was asking a great deal of the jury to ignore it when they were considering the head injury. This court will, of course, be very slow to interfere with the exercise of a trial Judge’s discretion in matters such as these but the risk referred to above left us with a sense of unease as to whether that Count should have been tried with Count 2. 89. As will inevitably happen in cases such as this, the medical evidence falls into a number of categories. There was the evidence of the treating doctors: A & E, the paediatricians and the radiologists. There is no doubt that that evidence established the existence of the triad of symptoms, excluded other common medical causes for all or any of those symptoms and concluded, as on the present state of medical knowledge they would be bound to conclude, that the evidence pointed to non-accidental head injury (NAHI). The second group of medical evidence related to those experts who were asked to express a view as to causation, although the treating doctors were allowed to do so too. 90. That group yielded effectively three subdivisions: ophthalmology, paediatric neurology and paediatric neuroradiology. The prosecution also adduced the evidence of Dr Lloyd, a consultant paediatrician, to give an overview but although his views were highly contentious at trial, it is accepted that they cannot be decisive of the appeal and accordingly nothing more need be said of them here. 91. The ophthalmic evidence was broadly agreed as between the three witnesses. They agreed that there were severe retinal haemorrhages. They agreed that it pointed primarily to trauma. They agreed that it could not be explained by other medical causes known to them although not every ENT possibility could be wholly excluded. The original view was that it was caused by shaking causing shearing injuries which caused this type of haemorrhaging. That view, however, had to be revisited when, contrary to expectation, the haemorrhaging resolved without evidence of residual damage. It was their experience that it was very rare for such severe retinal haemorrhages to recover completely. 92. That recovery cast doubt on a severe shaking injury; indeed it told against a major shaking incident. The ophthalmologists would not exclude any shaking or other trauma and certainly Dr Gregson thought that causation would be the same for both retinal and subdural haemorrhages. There was no account of which they knew which explained the symptoms. Professor Taylor recognised that this was an unusual case, for the retinal haemorrhages were more consistent with raised venous pressure than shearing. In his view the chances were even between NAHI and unknown causes. 93. It will be readily apparent that this evidence does not sit comfortably with a suggested causation of shaking though it does not exclude it. It weakens the structure of the prosecution case. 94. The neurologists in the case did not add much since the essence of the case depended on the interpretation of CT and MRI scans. They were able to demonstrate that all other known medical causes had been excluded. They too were in the position of asserting that it was a shaking or an unknown cause case subject to one possible explanation favoured by one of the neuroradiologists but firmly rejected by the other. 95. There were three specialist paediatric neuroradiologists who gave evidence but the essence of the dispute was between two of them: Dr Stoodley, called by the prosecution, and Dr Anslow, called by the defence. Both these witnesses are of considerable standing in their field of paediatric neuroradiology and both have considerable forensic experience both in the criminal and in the family jurisdictions. It was the unenviable task of this jury not only to adjudicate as between their views but to do so without any extraneous evidence to assist them and also having to take into account the uncertainties raised in the ophthalmic evidence. 96. There is no doubt that there was an encephalopathy and that there were subdural haemorrhages. There is no doubt that these haemorrhages were both in the front and the back of the brain. There is no doubt that there was fresh blood to be seen just as there was darker blood which may have been old blood or old blood mixed with fresh blood or fresh blood mixed with cerebrospinal fluid (CSF); on scan evidence alone what it was could not be said with certainty. There had to be a reason for the fresh blood. The experts at trial either agreed or accepted that the fresh blood was traumatic in origin. It was here that the primary controversy could be identified. 97. Dr Stoodley’s view was that he was seeing either fresh blood or fresh blood mixed with CSF, that there was no evidence of impact trauma and in any event that the diffuse nature of the subdural haemorrhages was against there being a single site impact. He saw clear evidence of encephalopathy and deduced from all that that the most likely cause of the subdural haemorrhages was a shaking injury. He said (and in principle this was not controversial) that shaking does not always produce retinal haemorrhages though clearly he was reticent in his views as to their causation. 98. Dr Anslow believed that he saw old blood which he ascribed to a birth-related subdural haemorrhage. He pointed to a study that demonstrated up to 46% of uneventful births in fact produced subdural haemorrhages. Whilst many cleared spontaneously in a month, it was his view that the evidence did not permit the conclusion that they all did. He acknowledged that the fresh blood required a traumatic origin but was of the view that it was impossible to assert what degree of force would be required if this, rather than a new injury, was a re-bleed from a chronic birth-related subdural haemorrhage. In acknowledging both that the research showed that birth related subdural haemorrhages were confined to the back of the head and also that there was fresh blood at the front of the brain, he explained that blood could move within the brain area. 99. That last view was vigorously contested by Dr Stoodley who asserted that in circumstances such as these, blood would not move from front to back and in that he was supported by the neurosurgeon Dr Richards. Whilst Dr Stoodley acknowledged the possibility of birth-related subdural haemorrhages (especially where, as here, there had been a ventouse delivery), he said that they usually resolved in a month and that these subdural haemorrhages were most unlikely to be birth-related. 100. The issue of necessary force is difficult. Dr Stoodley said that the conventional view was that to produce these symptoms the force required would be such that any reasonable person seeing what was happening would recognise it as dangerous. That view is essentially based on two assumptions: first that it cannot be much more than that as many shaking injuries do not involve other damage e.g. to the neck or spinal cord; second, that it cannot be much less than that or there would be far more of those injuries than in fact there are. Dr Anslow, for the purposes of this case, did not dissent from that view but asserted than a re-bleed would require lesser force, though how much less was not known, and he was of the view that the mother’s explanation of the buggy ride might indeed account for what had happened. Dr Stoodley accepted that lesser force might be required to trigger a re-bleed (though of course in his view there was no such thing in this case) but he regarded as deeply unlikely the explanation of the buggy ride. 101. The buggy ride also raises another discrete but important issue in the case, namely that of timing. The preponderance of view was that the precipitating event (whatever it was) came just before the child went floppy. That, of course, is the only evidence that established that that event occurred whilst the child was in the care of her father. If that were not so, there was no case against him on the major count. Whilst Dr Jayamohan (a neurologist) thought that the event might have occurred before arrival at the father’s home, the preponderance of view is that the father’s account is consistent with the event which caused collapse happening just before the child went floppy. 102. On the basis of that evidence, we turn to consider the approach of the Judge to a submission of no case to answer. There were three essential features of the evidence on which he had to focus in order to determine whether a reasonable jury properly directed could have convicted. 103. First, in favour of the prosecution there was the evidence of Dr Stoodley, supported by the neurologists’ evidence which excluded all known natural causes. It was open to the jury to reject the evidence of Dr Anslow in relation to re-bleeding, the movement of the blood and the buggy ride explanation. 104. Second, however, there was the ophthalmalogical evidence. It is true that the ophthalmologists did not specifically eliminate impact as a cause but all the evidence showed that if the retinal haemorrhages had been caused by severe shaking, as the prosecution suggested, the full recovery which in fact occurred would not have been expected. It was powerful evidence which told against shaking and in favour of an unknown cause. 105. Third, the jury would have to exclude an unknown cause. A jury would have had to acknowledge the imperfectly understood. 106. The Judge correctly noted that the jury would have to look at the evidence as a whole. He acknowledged that the ophthalmological evidence weakened the triad. He seemed to take the view that that weakening was offset by the evidence of subdural haemorrhage. 107. This, in our view, was not correct. Recovery demonstrated that the retinal haemorrhages could not be relied upon as evidence of shaking. On the contrary they were evidence of an unknown cause, as Professor Taylor said. Recovery is unusual and casts doubt on the reliance which can be placed upon the “triad” at all. Of course there are cases of non-accidental head injury where some or all of the components of the triad are absent. But there must be a rational basis upon which the jury could conclude that collapse was not due to an unknown cause, and thus reach a conclusion which rejects the evidential weight to be placed on the unusual feature in this case, namely complete recovery. 108. Nowhere in his ruling did the Judge fully acknowledge the weight to be attached to the uncontradicted ophthalmological evidence. Nowhere did he identify the basis upon which the jury could reject the possibility of an unknown cause. He failed, in fact, to recognise the force of the second and third features of this evidence. 109. We repeat that the absence of one or more features of the triad does not exclude a conclusion of NAHI. The other evidence may be so compelling that it excludes an unknown cause and proves the unlawful violence alleged. 110. But not in this case. We conclude that there was no rational basis on which a jury, in the light of the ophthalmological evidence, could reject an unknown cause. Once that is acknowledged as a realistic possibility, the weight to be attached to the evidence of Dr Stoodley is itself diminished. 111. In those circumstances we allow this appeal and quash the conviction on Count 2. 112. We should add this. The summing-up contained serious misdirections. Those misdirections provide cogent support for the conclusion we have reached. 113. The Judge did not sufficiently direct the jury as to the importance of the opthalmological evidence and its effect in undermining the triad as evidence of NAHI and as supporting an unknown cause. It was incumbent upon him to have done so. No proper direction was given to the jury that they must consider the possibility of an unknown cause, particularly in the light of the ophthalmological evidence, and should only convict if they reject it. 114. The summing-up was also defective in its structure. The Judge carefully and conscientiously recited long passages of the expert evidence to the jury. But he did not ‘direct’ the jury at all. He recited those passages in the chronological order in which the evidence was given. That was of little assistance to the jury. 115. The jury required a careful direction as to the essential issues which they had to determine and a reminder of that evidence and only that evidence which went to those issues. It was necessary to deal with that evidence issue by issue. 116. The Judge did not have the assistance of R v Schmidt [2009] EWHC Crim 838 in which a summing-up similar to that in this case led to the quashing of the conviction [42] and [47]. Nor did he have the assistance of the current Judicial Studies Board Crown Court Bench Book March 2010, Chapter 8 . We have only drawn attention to the summing-up because it assists in emphasising the need to construct a summing-up to meet the complexities of cases such as these and to ensure the case proceeds on a logical basis. It is only fair to the Judge to state that throughout the trial and the summing-up the Judge exhibited conspicuous care and fairness. 117. We think that the conviction on Count 4 should be quashed as well. We are uneasy (for the reasons given above) that this was left to the jury with Count 2. We do not think that it would have been prosecuted had it stood alone. The judge recognised this in his ruling. We also doubt whether this is a case of recklessness. We can discern no basis in the evidence upon which it could be said that this father should have realised this baby (aged 7 weeks or so) was likely to roll without the father (who was on his own) doing something. In those circumstances we have concluded that this count too should have been withdrawn from the jury. The appeal is allowed and both convictions are quashed. 118. We do not need to address the fresh pathological evidence sought to be adduced by the appellant. That evidence is highly contentious. We did not expressly consider the application to call fresh evidence nor do we express any other view about it. Oyediran Introduction 119. Oladapo Oyediran, the appellant, appeals against his conviction on the 16 March 2007 for the murder of his 10-week old son Oluwafemi, “Femi” following a trial at the Central Criminal Court before HH Judge Focke QC and a jury. The trial took place between 22 January 2007 and 16 March 2007. The appellant was tried on a two count indictment. In addition to the murder count, he was charged with causing or allowing the death of a child contrary to section 5 of the Domestic Violence Crimes and Victims Act 2004. His co-defendant on the section 5 charge was the baby’s mother, Sophia Rudder. She had originally been charged with murder. Because she suffered from multiple sclerosis, the Crown decided not to proceed against her on that charge. She was acquitted by the jury of the section 5 charge, and has since died. The appellant was sentenced to life imprisonment with a minimum term of 13 years. 120. The prosecution alleged that the appellant murdered his son, aged 2 months and 10 days, on 18 October 2005, by inflicting head injuries on him, resulting in brain damage which led to his death. The head injuries had been caused by a “rotational acceleration/deceleration mechanism”, either shaking or throwing or a combination of both. The cause of death was the brain damage. The mechanism of death was inhalation of the gastric content of the baby’s stomach. The brain damage had affected his gag reflex, and he had therefore inhaled his stomach’s content. 121. It was alleged that there were two incidents which resulted in the brain damage discovered at post mortem; one which had occurred about two weeks before death, and one about two to three days before death. After death, Femi was also discovered to have had an unusual fracture of his arm which it was agreed must have happened between two and four weeks before his death. The arm fracture was important evidence in support of the prosecution’s case that the baby’s head injuries were not accidental. 122. It was the defence case at trial that the appellant did not have any tendency to violence. He did not know how the injuries were caused but the medical evidence was not conclusive of non-accidental injury, Femi could have been dropped by his mother, because of her multiple sclerosis and this could have been the cause of the injuries which led to his death. 123. The appellant now applies pursuant to section 23 of the Criminal Appeal Act 1968 for permission to call and rely upon the evidence of two experts who were not called at the trial: (i) Dr Waney Squier, a Consultant Neuropathologist; and (ii) Dr Michael David Jones, an expert Biomechanical Engineer. It is said their evidence provides grounds for allowing the appeal because it demonstrates the first brain injury was more likely to be the result of an accident, rather than shaking, predisposing Femi to the risk of a further accidental trauma, that is, the second brain injury. 124. In his written notice of appeal, the appellant asks for permission to rely on a transcript of a meeting held between experts for the Crown and the defence in a different case ( R v Kendrick ) on 15 December 2007 to show that evidence given by Professor Risdon and Dr Richards at trial had been contradicted by them at the meeting. This ground was, rightly, not pursued. 125. At the hearing of this appeal, we heard evidence from Dr Squier and Dr Jones without determining whether their evidence should be admitted as fresh evidence. We also heard evidence from Dr Al-Sarraj a Consultant Neuropathologist who was called by the Crown. He produced a report dated 23 February 2010 in response to the fresh expert evidence from Dr Squier relied on by the appellant. Dr Al-Sarraj had provided a report for the appellant in April 2006 for use at the trial, but in the event, a decision was made not to call him. We also had before us a written response to Dr Squier’s report from Dr Richards. The Evidence at Trial 126. Femi was born on 8 August 2005. He was the son of the appellant and Sophia Rudder, who became partners at some point in 2000. They also had a daughter who was born on 20 May 2003. At the time of Femi’s death, they all lived together in a flat in Battersea. 127. Sophia Rudder had been diagnosed with MS in 1994 and was quite severely disabled by her illness. The appellant was her carer as well as her partner. Dr Oliver Foster, a Consultant Neurologist, treated her for MS for many years. He said that her condition was moderately severe. She had numerous attacks which principally affected her balance, manual dexterity, clarity of speech and eye movements. Her ability to walk was significantly restricted; she had difficulty in walking up stairs. 128. Dr Foster, who saw her on 24 February 2006, said that she would have been able to pick up either child, but might have dropped them. She was in the more severe category of multiple sclerosis sufferers. She was a vulnerable person and would not be able to stand up to someone easily. It would have been difficult for her to pick up the baby and shake it, and extremely difficult for her to have twisted his arm. She lacked the power and co-ordination. He found her to be a mild-mannered and passive person. It was unlikely she would resort to violence. 129. Dr Edwards, a Consultant Psychiatrist who interviewed Sophia Rudder in January 2006, gave evidence about her mental state and understanding. She was classified as having a learning disability. In January 2006 her mood appeared inappropriately calm and detached. She appeared to be like a bewildered child. She took the view the appellant was a good father and would never intentionally hurt their son. She denied shaking him and said she did not know how he had been injured. She said he had fallen from a sofa. She had left him on a bed and found him on the floor. Their daughter might have dropped him. 130. There was evidence that Sophia Rudder became isolated from her friends and family as a result of her relationship with the appellant, and that she was extremely vulnerable. Claire Fairman from the Battersea Field Medical Practice, who had known Sophia Rudder for 14 years, said that after her relationship with the appellant, she “no longer spoke to us and appeared to be submissive.” After the birth of their daughter, the appellant brought her in for most of the appointments. She felt the appellant had a demanding attitude, and on one occasion barged into a consulting room. He could be impatient and aggressive. Geoffrey Vevers, the Vicar at her church had known her since 1998. He became concerned about the appellant’s behaviour as he appeared to want to isolate her from other members of the church; he was controlling and talked over her. Diane Cole, her sister, said the appellant tried to isolate Sophia Rudder from her family. 131. When Jane Foster (a revenue officer with the Housing Association for the property of which Sophia Rudder was the tenant) spoke to her in 2004 on the telephone, the appellant intervened to say that he was her financial adviser and everything she had to say to her she could say to him. The appellant called himself Dr Dapo. Telephone messages left on the appellant’s mobile and correspondence about rent arrears went unanswered. Eventually, in May 2005, possession proceedings for non-payment of rent were begun. 132. After eviction, Sophia Rudder, by then heavily pregnant, was placed with her daughter in temporary bed and breakfast accommodation, where the appellant sometimes stayed too. There, Femi was born (on 8 August 2005); he was delivered by the appellant. Ms Thomas, the paramedic who attended, noticed that Sophia Rudder had some difficulty in holding her son. 133. On 10 August 2005 she and her new-born son returned to the temporary accommodation. On 11 August 2007 Sophia Rudder was visited by Josie Slade, a community midwife, who was concerned about her ability to look after her son on her own, in particular about her lack of upper body strength and ability to hold him. The midwife said Sophia Rudder struggled to hold her son while trying to breast feed and was unable to pick him up. As a result of these concerns, Social Services arranged for the appellant to join Sophia Rudder in the temporary accommodation, to help care for his son. There was evidence from the health visitors of the appellant’s good care of Femi and his pride in having a son. 134. In July 2005 the appellant told Ms Natalie Maitre, the Homeless Prevention officer from the Wandsworth Homeless Prevention Unit, that he was a doctor and worked in neurology. He appeared forceful, and his partner seemed simply to follow his advice. He told Ms Maitre that people with neurological problems were better off with short hair and he had therefore shaved Sophia Rudder’s head. At Ms Maitre’s instigation, solicitors Flack & Co were instructed to act for Sophia Rudder. Ms Maitre’s letter to them said the appellant had damaged relationships with all the agencies trying to help Sophia Rudder through his attitude and behaviour. However, as a result of her illness he was the only one trying to help her, and to some extent she had abdicated responsibility to him. 135. Jane Pritchard from Flack & Co said Sophia Rudder was extremely vulnerable. She appeared emotionally detached. It was like dealing with a child. She told Ms Pritchard that the appellant was a doctor. Ms Pritchard commissioned a psychiatric report which said Sophia Rudder was incapable of looking after her financial affairs. As a result of that information, and intervention, Sophia Rudder was allowed back to the flat, and went back there, with the appellant and the children, on 11 October 2005. 136. On 6 October 2005 Femi was seen by a Dr Sathananthan at the Brigstock clinic. The appellant said Femi had been “very snuffly” for the past three days and not feeding. On 18 October 2005, the appellant, accompanied by Sophia Rudder and her daughter, took Femi to the Battersea Fields Medical Practice. They arrived at about 11.10 a.m. Femi was in a car seat which the appellant placed on the reception desk. The appellant told a receptionist, Sabrina Newton, that he needed to see a doctor for his baby. Ms Newton thought the appellant was pretty calm. She noticed mucus round Femi’s nose, and that he was apparently asleep. She said the appellant told her he had fed the baby that morning, had left the baby and gone out (for nappies and formula milk amongst other things) and on his return found that milk was coming from Femi’s nose and mouth. 137. Femi was not registered at the Surgery so registration forms were given to Sophia Rudder. They were filled in by the appellant. He told another receptionist, Ms Fairman, he had fed the baby at 7.30 a.m., and had gone to Boots for nappies and other products. The appellant then lifted Femi’s nose with one of his fingers to show the receptionists the discharge, and said: “I only brought the baby in because I didn’t want to be accused of negligence.” Ms Fairman thought the appellant was calm. She thought she heard the baby snuffle. Another receptionist, Ms Muldoon, said the baby was just like a doll and fast asleep. She thought the appellant was impatient to have the baby seen. 138. Femi was seen by Dr Kate Trevelyan-Thomas, at 11.44 a.m. The appellant carried Femi in his car seat. The first thing he did was to express concern about the wait to see the doctor and the appointment system. She said his attitude was somewhat aggressive. When Dr Trevelyan-Jones saw Femi, she immediately realised he was dead. He was not moving or breathing. He was white (for a baby whose colour was black), floppy and cold. She asked a nurse to call 999. She noted a purple discolouration to his flank which she took to be post mortem changes. In her view Femi had been dead for some time. When she told the appellant Femi was dead, he said he did not believe her. He said she must be joking: “resuscitate it”. She said there was no point as the baby had been dead too long. The appellant she said was unbelieving, and kept trying to wake Femi up. 139. She said Femi appeared to be a well-nourished and completely normal 2 month-old baby; with no sign of damage. Dr Trevelyan-Thomas tried to take a history from the parents. The appellant told her he had fed Femi at 7.30 a.m.; he had taken a 9 ounce bottle and was cheerful and active. The appellant had gone to Boots just before 9 a.m., had got home at about 9.30 a.m. and noticed milk coming out. 140. Dr Trevelyan-Jones asked Dr Emma Griffin, another doctor at the Surgery, to examine Femi. It was also Dr Griffin’s view that Femi had been dead for some time, and she pronounced him dead at 11.53a.m. The nurse who made the 999 call told the operator the doctor had said the baby had been dead for half an hour. But in the opinion of both Dr Trevelyan-Thomas and Dr Griffin Femi had probably died before he arrived at the Surgery. 141. Femi was taken by ambulance to St George’s Hospital. The appellant told Janet Drew, a member of the ambulance team, that Femi had not cried that morning, but liquid had been coming out of his nose. He sat the baby up and went to get some nappies. He decided to take Femi to the hospital on his return (though in cross-examination she accepted it may not have been in that order). 142. At the hospital the appellant repeated the account of the morning’s events to Claire Hill, a Paediatric Registrar, adding that at 11 p.m. the previous evening he had fed Femi 4 ounces of pineapple juice. He then gave Femi some formula milk at 4.30 a.m. Only the appellant answered Dr Hill’s questions. Both parents consented to a post mortem and she said they appeared upset but calm. The appellant said he wanted to know the cause of death. 143. P.C. Butler also spoke to the appellant at the hospital. The appellant said he fed Femi at 8.15 a.m., he drank the milk and coughed, and the appellant took it away. Femi kept burping so he gave Femi some more. He went out of the room and when he came back there was milk running out of Femi’s nose. He dabbed Femi’s nose and put him in a car seat in his sister’s room. He left at 8.45 a.m. to go to Boots to buy some nappies. He then went to Lidl, and then to see his mother and another lady. Sophia Rudder told him Femi still had milk coming from his nose so he decided to take Femi to the clinic. She nodded from time to time as the appellant gave this history. The appellant pushed past the officer and into the resuscitation room. They struggled, then the officer took the appellant to see the baby. He appeared to be looking for injuries, and broke down crying. 144. The appellant and Sophia Rudder were arrested on the 19 October 2005 after a post mortem was conducted on Femi by Professor Risdon. They both declined to answer questions in interview but relied on prepared statements. In his statement, the appellant denied responsibility for Femi’s death and questioned the injuries described in the disclosure. He asked for an independent autopsy. 145. The prosecution called evidence of an alleged “cell confession” made by the appellant to Enrico Escoffery; one of the grounds of appeal relates to this confession and we shall deal with that evidence later. 146. The prosecution called five expert medical witnesses: Professor Risdon, a Consultant Histopathologist; Dr Harding, a Consultant Paediatric Neuropathologist; Professor Luthert, a Professor of Pathology and Consultant Ophthalmologist; Professor Hall, a Consultant Paediatric Radiologist and Dr Richards, a Consultant Paediatric Neurosurgeon. The Defence called Dr Rouse, a Home Office Pathologist. 147. There was substantial agreement between the experts as to the injuries found and the mechanism of death. The main areas of challenge on behalf of the appellant were (i) whether Femi’s head injuries could have resulted from an accidental short fall – and in particular, if Femi had been dropped by Sophia Rudder and/or caught and pulled back violently; (ii) whether what the experts described as the second brain injury was in fact not a separate injury, but a re-bleed (or secondary bleed) from an earlier brain injury; and (iii) whether the arm fracture revealed in a post-mortem radiological skeletal survey could have been caused by accident, for example, if Femi were grasped in an attempt to catch him after he had been dropped. There was a fracture at the lower end of the left humerus just above the elbow joint. 148. On 19 October 2005, Professor Risdon performed the post mortem on Femi. Professor Risdon found Femi to be a well-nourished infant with no visible external injuries. He was not dehydrated. The stomach contained a little mucus and milk curd, consistent with a milk feed a few hours before death. He had a small bruise on the inner surface of the scalp over the right parietal region. There was a degree of swelling to the brain. There was a thin layer of fresh subdural haemorrhage mainly over the right side of the brain and fresh haemorrhage around both optic nerves. In his opinion, Femi had suffered a head injury characterised by a subdural haemorrhage, brain swelling and haemorrhage around the optic nerves. 149. In Professor Risdon’s opinion, by far the most likely explanation was that the injuries were inflicted, not accidental, in the absence of any plausible clinical history to account for the injuries. The combination of subdural haemorrhage and brain swelling indicated a rotational acceleration/deceleration mechanism for the head injury. Such a movement would cause the delicate veins between the surface of the brain and the dura to stretch; and if the movement was violent enough, to break. Rotational acceleration/deceleration was characterised by a subdural haemorrhage, brain swelling and retinal haemorrhage (the “triad of findings”). Here there was no retinal haemorrhage. He was not surprised to find fresh bleeding round the optic nerve because it was an extension of the subdural space. The mechanism of death was aspiration of the stomach’s gastric content, caused by the brain damage which affected the nerves controlling the reflex gag action. Death would have been fairly quick. Femi was cold to the touch at the Surgery, and this was consistent with Femi having been dead for at least half an hour. In his opinion, Femi had been dead for a little while, and had not died in the Surgery, though in cross-examination he said he could not exclude that possibility. 150. In cross-examination Professor Risdon confirmed that his findings demonstrated a pattern of injury that was almost always non-accidental. He said it was not impossible to produce a fatal fall from a short distance, but the characteristics of such an injury would be different from the ones he found. The fracture of the humerus and the first head injury could have occurred at the same time but he rejected as “implausible” the suggestion that those injuries could have been caused by a child falling from a parent’s lap and being pulled backwards, even violently. The head injury could not have been accidental; the fracture could have been accidental theoretically, but such fractures do not occur in the way suggested. He said the older subdural haemorrhage was not the type he would associate with one caused at birth. Professor Risdon rejected the suggestion that there had been a “re-bleed” or secondary bleeding into a pre-existing site of brain injury rather than a second brain injury. 151. In re-examination he said the subdural haemorrhage was an extremely thin layer: the possibility of re-bleeding into that was obviously small. If there had been a re-bleed into a pre-existing injury he would have expected a volume of blood sufficient to change the clinical condition of the child, and there was no evidence of that. As for short distance falls causing serious injury, they nearly always occurred in ambulant children, the children in a study by Plunkett were not individually studied, and there was no individual examination of the injuries caused. He had experience of three fatalities from short distance falls: and each involved older children who suffered a large, extra-dural, space-occupying haemorrhage, a quite different lesion from the one here. Short falls for young children were everyday events. The vast majority produced no injury at all, and certainly not damage inside the skull. 152. Dr Rouse confirmed Professor Risdon’s post mortem findings. He agreed the head injury was caused on two separate occasions and that the fracture had been caused two weeks prior to birth. The head injury could have been caused at different times or the same time. It was not possible in his opinion to say whether the fracture had been caused accidentally or non-accidentally. As there was no retinal bleeding this tended to suggest the force used was less than that found in traditional “shaken baby” cases. If a child fell and were grabbed suddenly, that sort of force might produce damage to the brain. As the brain injury had not been instantly fatal and in the absence of retinal haemorrhage, the brain injury could have been caused by a short fall from shoulder height to the ground. Where a child had a two-week old brain injury any additional impact to the head, for example, a short fall, could lead to an increased propensity to bleed. 153. He agreed it was not necessary to have retinal haemorrhaging for there to have been a rotational acceleration/deceleration mechanism, and that a short fall from a bed would not replicate such a mechanism unless there were a whiplash effect. 154. Dr Harding had examined Femi’s brain. He confirmed there was mild swelling of the brain and evidence of brain damage of two different ages: one of two-three days before death in the cerebellum and one of two weeks old in the cerebral cortex. In his opinion the injuries were not accidental. The damage to the cerebral cortex was extensive and very severe. There was damage to the hippocampus which was more difficult to date, but in his opinion was probably caused at the same time as the damage to the cerebral cortex, as the two areas are closely related. There was damage to the thalamus which may have been secondary to the damage to the cerebral cortex. In the dura he also found haemorrhage of two different ages: a recent subdural haemorrhage which had occurred two-three days before death; and close to it, an older haemorrhage which was at least two weeks old. In his opinion, the haemorrhages would both have been caused by a torsional twisting injury that might damage the communicating veins. He also found axonal damage - that is, damage to some of the nerves in the spinal cord - which was the same age as the second brain injury, that is, two-three days old; and similar damage in the medulla (the lowest part of the brain above the spinal cord). 155. In cross-examination he did not agree the second bleed was a re-bleed as there were two “quite distinct lesions”. He said there was no good evidence for the suggestion that when there has been one subdural haematoma it is easy for a second to occur. He was asked about short fall injuries. He said a short fall would not result in the type of injury Femi had. A short fall injury would usually result in a different type of haematoma from the one found here: he would expect to see an impact on the skull, arterial bleeding, and an extra-dural haematoma as well a subdural haemorrhage. 156. Dr Richards gave evidence about the effect of brain injuries on live infants. He said a child with a brain injury of two weeks’ duration would have abnormal movement of limbs, their behaviour would be abnormal, they would usually have seizures, their cry would be high-pitched and their feeding would be very weak. They would barely be able to suck. It was inconceivable that Femi had taken a 9 ounce feed a few hours before death. It was nonetheless possible for there to be milky fluid in the stomach, as the baby could still suck, but this would be very weak. It was also inconceivable that a half-competent GP would not have recognised the symptoms when he saw the baby twelve days before its death. He did not think, therefore, the baby could have been injured at that point. A fresh haemorrhage two-three days before death would have caused crying because of the severe headache it would have caused, unless the baby was unconscious. He expected the baby would have been unconscious at some point in the two-week period after it was injured. Professor Risdon’s evidence in relation to the arm fracture accorded with the evidence of Professor Hall. Dr Rouse accepted that the fracture had been caused some two weeks before death and made it more likely that the head injury was not accidental. 157. Professor Luthert had examined Femi’s eyes. He confirmed the absence of retinal haemorrhages but the presence of blood on the optic nerves. He said this can be caused when intra-cranial pressure increases due to the brain swelling. The blood had been there more than forty-eight hours before death; he could not say whether it had been there two-three weeks before death or exclude the possibility it was there at the time of birth. But it was much more likely that the bleedings resulted from the second injury. In his experience, this was inflicted trauma. 158. Professor Hall gave evidence about the arm fracture. She said it was a fracture of the lateral condyle of the humerus. It was at least two weeks old, and not more than four weeks (probably nearer to four weeks). It was an unusual and quite serious fracture in this age of baby. Such a fracture can be caused by a direct blow on to the bent elbow (for example, if the baby is thrown on to the floor) or by a forceful extension of the elbow. It was more common in older children as it was caused by high velocity impacts such as falling from skateboards. It could not be caused by shaking. Shaking might cause a metaphysial fracture which was a more common child abuse injury, caused by a grip, pull or twist. 159. She said the fracture would result in immediate pain of at least ten minutes and up to half an hour, and would result in the baby screaming. The cry would be a hard cry, or a cry of pain and recognisably different from a baby’s normal cry. It would be immediately apparent there was something wrong with the baby. This type of crying would re-occur every time the baby or its arm was handled in any way. This ongoing pain would last for about a week. In addition, the baby would choose not to use its arm, and it would appear to be limp for about a week. Swelling would start immediately. The fracture would have been caused by excessive and unusual force: something more than heavy-handed or rough handling. It could not have been caused by an over-extension of the arm while dressing. If the signs of the fracture had disappeared when Femi was seen by the GP (on 6 October 2005) the fracture would have had to have occurred a week before the visit, but a GP might not pick up a small swelling on the arm. 160. The appellant gave evidence in his own defence. Sophia Rudder did not give evidence. The appellant said he would have done anything to protect Femi. He said he took him to a GP on 6 October 2005 as he had a snuffly nose and it was obvious he needed a doctor. Four days later they moved to the flat. Femi had been with the appellant’s mother for four days, and the appellant picked him up from her on 15 October 2005: he did not appear to be different from how he was before. 161. He said Femi had none of the symptoms of the fracture described by the expert evidence. He did not know how the injuries had been caused and he did not cause them. He described an incident when he tripped over while holding him, but he did not hit anything and could not have been injured. He also described an incident two days before Femi’s death when he left him propped up on the bed, then heard a loud bang and found him lying on the floor. His daughter was by the side of the bed. He said Femi was asleep and ok. Perhaps with hindsight he was knocked out, but he was still breathing. He said he did not think it important to tell the police about this. 162. During the early hours of 18 October 2005, between 4 a.m. and 4.30 a.m. he said he heard Femi crying. He fed him some formula milk and went back to bed. He woke at 7.30 a.m. and Femi was crying. He went to Boots to buy nappies just after 9 a.m., leaving Femi strapped in a car seat in the flat. He went to Lidl and then to see his mother. He returned home at 10.00 a.m. Sophia Rudder said: “He’s been coming down with milk”. He had seen milk coming out of Femi’s nose before, when they were the in temporary accommodation, but this time there was more. He decided to take Femi to the Surgery at 11 a.m. He denied telling Escoffrey he was responsible for Femi’s death. He denied telling anyone he was a doctor. He denied threatening Ms Foster with a walking stick. She was with them at the flat for only 5 minutes. Until the night of the 17 October 2005 he saw nothing in relation to Femi that would have caused him any alarm. There were no symptoms. Grounds of Appeal: 163. There are two grounds of appeal in respect of which permission has been given and which do not concern the medical evidence. First, it is contended that the judge wrongly admitted the evidence of Jane Foster as to her visit on 23 May 2005. The evidence was admitted pursuant to s.101(1)(c) of the Criminal Justice Act 2003 on the basis that it was important explanatory evidence as to the mental capacity of Sophia Rudder. It demonstrated, so the prosecution contended, that she had the capacity to intervene when the appellant exhibited signs of aggression towards Ms Foster. 164. Ms Foster visited the flat on 23 May 2005 to see whether it had been abandoned or, if not, whether even at this late stage the Association could offer some help. She described “an extremely unpleasant” incident after she had seen Sophia Rudder through the open bedroom door, and had spoken to her. During the incident the appellant roughly handled his partner. He also pushed Ms Foster, verbally abused her, threatened her with a walking stick, and prevented her from leaving the flat. He eventually let her leave after Sophia Rudder told the appellant in a quiet voice to “Let her go.” After she left, Ms Foster immediately dialled 999 and reported the incident to the police. At the time Ms Foster noted that “I fear that Ms Rudder and child are at risk and need Social Services assistance immediately.” 165. Mr Valios QC, on behalf of the appellant, contended that the evidence was so prejudicial as against the appellant and of such little significance in relation to the behaviour of his co-defendant, Miss Rudder, that the judge ought either to have rejected its admissibility under s.101(1)(c) on the basis that it could not be said that the jury would find it impossible or difficult properly to understand other evidence in the case in relation to Miss Rudder’s capacity (s.102(a)) or on the basis that it would be unfair to admit it since its prejudicial effect on the jury’s view of the appellant far outweighed its utility (s.78 PACE). 166. The prosecution, at the stage it sought to adduce this evidence, appreciated that it was unlikely that the co-defendant would give evidence. Moreover, the jury was to hear a considerable body of evidence about her mental and physical capacity, all of which might have suggested that she would have been unable to appreciate the risk to her son. In those circumstances it was the only occasion on which the prosecution was in a position to call direct independent evidence as to Miss Rudder’s behaviour in the face of her concern as to the risk of violence towards Jane Foster. 167. We accept that the evidence had no relevance as to whether or not the appellant was violent towards his son. There was a body of evidence as to aggressive and forceful behaviour by the appellant, particularly when confronted by those he would have regarded as being in an official position, such as the Homeless Prevention Officer. We recall his behaviour in the surgery on 18 October 2005. But it must have been obvious to the jury that the incident concerning Miss Foster did not demonstrate any violence or aggression on the part of the appellant against his own son. The judge reminded the jury as to why it was admitted, namely, on the question as to whether the defendant Sophia Rudder was able to appreciate risk, and emphasised to the jury that the incident had no relevance at all as to whether or not the appellant had a propensity to be violent. 168. In our judgment, the decision to admit evidence demonstrating Miss Rudder’s capacity to react to the appellant’s behaviour was relevant to an important matter in issue between her and the prosecution. Since it was the only direct evidence it was within the bounds of reasonable conclusion for the judge to hold that no injustice would be caused to this appellant by admitting the evidence. 169. In so concluding, we have not found it necessary to consider whether the evidence did fall within s.98. The evidence was only evidence of misconduct or disposition towards misconduct on the part of the appellant and not on the part of the defendant Sophia Rudder. If Sophia Rudder had been tried on her own, the evidence would plainly have been admissible without any need to invoke Chapter I of Part II of the 2003 Act . But we need not dwell on this aspect since, on the assumption (which we need not decide) that the evidence did fall within that Chapter, it was properly admitted by the judge. 170. The second ground concerns the evidence of a cell confession to Escoffrey, a serving prisoner. Escoffrey shared a cell with the appellant for just under 4 weeks (between 22 October 2005 and 17 November 2005) while the appellant was on remand at Wandsworth Prison. He had a number of convictions including for false imprisonment, sexual assault, theft and harassment. 171. According to Escoffrey, the appellant first spoke about his case about four days after they started sharing a cell. He initially denied the offence. He said he had gone to town to buy Pampers for Femi, returned, and together with his daughter, bathed Femi. He then realised Femi was ill, though he did not know why. He took Femi to see the doctor, but was made to wait (for either 45 minutes or 2 hours) during which time Femi died. He blamed the Surgery for Femi’s death. 172. However, about a week and a half later, after a visit from his young daughter (brought to the prison by Social Services) Escoffrey said the appellant confessed to killing Femi; he said he was often stressed and would then shake Femi (and Escoffrey demonstrated a forwards and backwards movement) while holding him upside down by his ankles. He said he had done this on the morning of Femi’s death. Escoffrey said the appellant said he thought he would get away with it as the doctors did not know what they were talking about. 173. The defence were able to advance a number of substantial grounds to demonstrate the unreliability of Escoffrey. He had a number of convictions. The details of the confession which he said he had heard were inconsistent with the prosecution case. According to Escoffrey, the child was aged 3-4 years, whereas he was much younger. The appellant had apparently spoken of a twisted bone to the police. According to Escoffrey, the appellant had said that his daughter was bathing his son and that he had been out shopping. He said that shaking had occurred after he returned from the shop. None of this bears any relationship to what the appellant in fact said about the circumstances of his son’s collapse. 174. Of particular importance is the timing of the alleged confession. Escoffrey said that the confession was at about 6.00-7.00 p.m., following a visit by the appellant’s daughter, accompanied by a member of social services. He said that the appellant had confessed to taking the child by the legs, holding him upside down, and shaking him. He had confessed to doing this “all the time”. In cross-examination he confirmed that the confession was in the evening after the visit, although he had told the police it was in the middle of the night. 175. The evidence of the prison officer, Miss Atkins, was that Escoffrey reported the confession to her in her office at 10.00 a.m. on 11 November. This preceded the social services visit. It thus demonstrated that Escoffrey’s account of the surrounding circumstances of the confession was untrue. 176. There was no transcript of the prosecution’s closing submissions, but we accept that, in effect, it abandoned reliance upon Escoffrey. In those circumstances, the appellant submits that it was wrong of the judge to leave his evidence for the jury to consider. In his summing-up the judge reminded the jury of the discrepancies between what Escoffrey said and what the prosecution alleged the appellant did to his son. He reminded the jury of the discrepancies as to the circumstances in which Escoffrey said the confession had been made to him. But he did leave the matter to the jury in terms that if they were not sure that the confession was true, they should disregard it. But if, conversely, they were sure it was true, then they could rely upon it. 177. Had we been hearing the trial, we would probably have directed the jury to disregard the evidence. It was so flawed as to be of little value. But the very fact that it was so obviously unreliable can only have assisted the appellant. It was admissible and we are unable to say that the judge erred in allowing the evidence to be given, in failing to give a stronger warning to the jury, or that the evidence renders the jury’s verdict unsafe. 178. We turn, then, to the further evidence which we heard from Dr Squier and Dr Jones. Fresh Evidence 179. The appellant sought to adduce evidence from Dr Squier and from Dr Jones to support his case that his son suffered brain damage as a result of what is described as a “short fall” which caused head injury and brain damage, at least two weeks before his son’s death. The fall, it was suggested, occurred when, due to her disability, Sophia Rudder was unable to hold her son who must, therefore, have fallen to the floor. 180. The appellant also relied upon Dr Squier’s evidence that the possibility that the child suffered from HIV could not be excluded. We heard the evidence of both Dr Squier and Dr Jones, de bene esse . Dr Jones described the mechanism of a fall which might have caused significant head injury to Femi. He accepted that there was little data relating to the distance an infant would have to fall to suffer injury to the head. It would, as we would expect, depend in part upon the surface on which the baby fell. Dr Jones said that there was general acceptance as to the minimum degree of force (50-60G) as to which Dr Jones was less persuaded and the maximum (100-150G) for fatal damage. He concluded that there would be a risk of serious head injury should the baby have fallen from a height of 82 centimetres above ground. That distance would correspond to the height of Sophia Rudder’s shoulder above ground. In cross-examination Dr Jones accepted that it was difficult, although not impossible, for any biomechanical model to simulate the complex anatomy of an infant’s brain. Dr Al-Sarraj, called in rebuttal by the Crown, emphasised the difficulty of applying biomechanics to humans. He emphasised the complexity of the human brain and the difficulty of drawing conclusions from biomechanical experiments. In any event, he rejected the view that a low-level fall could have caused the extent of the catastrophic injury some two weeks or more before the child’s death. 181. Dr Squier accepted that it was outwith her expertise to comment on whether the baby may have suffered from a fall, although she spoke of babies, considerably older than Femi, who had fallen either from beds, standing, or from a chair. 182. It must be recalled that it was part of the appellant’s case at trial that the baby’s injuries may have been attributable to a fall whilst being held by his mother. This possibility was rejected by the jury. We do not think that the evidence of Dr Jones could afford any ground for allowing the appeal. Dr Jones accepted, both in his oral evidence and in his written report, that there was very little data to be derived from experiment, as we would expect. He also accepted, both in his oral evidence and in his report, the difficulty of drawing conclusions because of the complexity of a baby’s brain. This court, in the Cherry appeal in R v Harris & Others [2006] 1 Cr App R5 heard conflicting evidence from biomechanical engineers, both in relation to the injury to be expected from a fall and the extent to which injury could be caused by shaking (see [81-96]). At [213(iv)] the court described the science of biomechanics as “complex, developing and (as yet) necessarily uncertain”. Nothing that we heard from Dr Jones led us to take a different view as to the science from that adopted by the court in Harris . Nothing we heard from Dr Jones leads us to question the safety of the jury’s verdict. 183. There was clear evidence on the basis of which the jury must have rejected the suggestion of a fall from the baby’s disabled mother. The most important feature was the evidence relating to the fracture at the lower end of the left humerus. The evidence of Professor Hall demonstrates the unusual nature of that fracture. Moreover, it was important evidence to demonstrate the lack of reaction by this appellant to the baby’s screams and cry of pain which would have occurred over the period of about a week whenever the baby or its arm was handled in any way. 184. Although Dr Foster accepted that Sophia Rudder might have been able to pick up the child and then to drop him, she would have found it difficult to pick up the baby and shake him and it would have been extremely difficult for her to have, in some way, twisted her son’s arm. She would have lacked the power and co-ordination to do so. In those circumstances, the jury was entitled to reach the conclusion that it was unrealistic to suggest that the baby fell from his mother’s chest and that he was caught by the arm in order to save him. This suggestion was rejected both by Professor Risdon and Dr Harding. 185. Moreover, the failure of the appellant to react to the baby’s screams of pain over a period of a week provides powerful supporting evidence of both his responsibility for the injury and of his intention. As Dr Squier herself accepted, the fact of the unusual fracture to the baby’s arm amounted to powerful evidence in relation to the cause of the head injury. 186. In her report dated 8 May 2009 Dr Squier accepted that Femi must have suffered severe and extensive brain damage at least some two weeks before death and described the clinical history as unusual. She suggested that it was unlikely that the baby would have survived without resuscitation and professional assistance. For that reason she suggested that the possibility of HIV encephalitis should be explored. She described the family history as unusual, referring to the fact that the baby’s father came from Nigeria where there was a high incidence of HIV and asserting that the mother was young to have died from multiple sclerosis. Accordingly, Dr Squier “wondered” whether she may have had HIV rather than MS. She suggested that Professor Jean Bell should be asked to review the brain since she “has more experience than any other pathologist in this country in paediatric HIV encephalitis”. 187. The result of Professor Bell’s analysis was forthcoming by the time of the appeal. It was her opinion that the pathology was not due to any form of HIV related disease or AIDS. Dr Al-Sarraj also gave evidence of the differences between the appearances of the brain and those one would expect of children infected by HIV. 188. We must emphasise, therefore, that there was no evidence whatever that the condition of Femi had anything to do with HIV. There was no evidential basis for any such suggestion. It is, therefore, a matter of regret and surprise that we must record that despite the absence of any evidence of HIV encephalitis and the positive evidence from Professor Bell, who had attracted the praise from Dr Squier which we have recorded, Dr Squier was not prepared, before us, to reject the possibility of HIV encephalitis. She repeated that HIV had not been excluded and referred to the fact that Femi’s father came from a country where it was endemic. Dr Squier should not have persisted in that suggestion. She herself had recommended examination by Professor Bell. When Professor Bell rejected the suggestion, Dr Squier did not accept that rejection. Dr Squier’s stance, in oral evidence before us, casts significant doubt upon the reliability of the rest of her evidence and her approach to this case. It demonstrates, to our satisfaction, that she was prepared to maintain an unsubstantiated and insupportable theory in an attempt to bolster this appeal. 189. The inadequacies of her evidence were compounded by her persistence in the suggestion that Sophia Rudder might have suffered from HIV and not from MS. In fact Sophia Rudder had been treated by an eminent neurologist, Dr Foster. It is not sensible to suggest that that doctor would have attributed Miss Rudder’s condition to MS when in fact she was suffering from HIV. Dr Squier appeared unaware of Dr Foster’s reputation and saw fit to suggest HIV despite the reputation of Dr Foster and in apparent ignorance of the very fact that Sophia Rudder was being treated by her. Dr Squier’s approach to that aspect of the evidence supports our views as to the unreliability of her evidence. She should not have suggested that cause of Sophia Rudder’s condition and death without careful consideration of her treatment by Dr Foster and without informing herself of Dr Foster’s qualifications and reputation. 190. In the light of our view as to the quality of Dr Squier’s evidence before us we conclude it is not capable of undermining the safety of the verdict. For those reasons, we reject the application to call fresh evidence. Considering it, in the context of the medical evidence as a whole, it is not capable of affording any grounds for allowing the appeal (see s.23(2)(b) of the Criminal Appeal Act 1968) . 191. We must, nevertheless, consider the evidence at trial as a whole, in response to the appellant’s more general ground of appeal, that that evidence was insufficient to justify the jury’s verdict of murder. The prosecution case alleged two separate head injuries, the first between two to four weeks before the death and the second a head injury leading to the death. Further, it was alleged that Femi’s left arm had been deliberately broken, either at the time the first head injury was caused or on another occasion. 192. Mr Valios QC, on behalf of the appellant, contended that the jury could not safely have concluded that there was more than one occasion when the injuries occurred. In reliance upon Dr Squier and Dr Al-Sarraj, he contended that the second subdural haemorrhage could have been caused without any further trauma but as a result of a re-bleed. Dr Al-Sarraj accepted that possibility, in evidence before this court. 193. It is true that there were unresolved issues as to the sequence of events. In particular, all the expert evidence showed that the head injury from which Femi suffered at least two weeks before his death was severe and would have had a catastrophic effect upon his condition. Femi, as Dr Harding said in evidence, had suffered from significant destruction of the brain several weeks before death. Thus by the time of either the second injury or the re-bleed he was already severely brain-damaged. The symptoms would have been severe. The child, according to Dr Richards, would have had abnormal movement of limbs, would probably suffer from seizures, his cry would have been high-pitched and feeding would be very weak. He would barely be able to suck. 194. It must be recalled that Femi was taken to Dr Sathananthan on 6 October 2005 when the appellant reported his son as being “very snuffly for the past three days” and not feeding. 195. The GP might well have not observed any slight remaining swelling due to the arm fracture, provided that that fracture had taken place at least a week before the visit on 6 October. However, it is not possible to reach any conclusion as to why or how the General Practitioner missed the consequences of the severe head injury. 196. In our view, it does not matter. Whether that injury occurred before or after the visit to the GP, the jury was entitled to reject the view that it occurred as a result of an accidental fall, whilst being held by Sophia Rudder. If that had occurred, it makes the failure of this appellant to report the catastrophic effect on his son inexplicable. Nor does it explain how his son came to suffer so unusual an arm fracture or the failure of this appellant to report it. 197. We accept that there persists a doubt as to whether the baby’s left arm was fractured at the same time as he suffered the severe first head injury or on a separate occasion. But we reject the submission on behalf of the appellant that it matters. Nor do we think of particular significance the issue whether the second brain injury was a result of a re-bleed or secondary bleeding into a pre-existing site of brain injury, or a second brain injury. Of course, if the prosecution could establish three separate occasions of deliberate injury caused to the baby, that would be powerful evidence of murderous intent. 198. However, we reject the submission that if the evidence fell short of establishing three separate occasions when deliberate injury was caused, that undermines the safety of the verdict. The combination of the severity of the injury to the brain and the fracture to the arm, even if they were caused on the same occasion, not only establishes that the perpetrator was not the disabled mother, but rather that it was this appellant. The nature and severity of the injury, particularly to the left arm, is a sufficient basis to establish a murderous intent. That evidence is further supported by the absence of any reaction, let alone any report, of the condition of his son by this appellant when faced with the cries of pain of his son and the apparent effect, which we have described, of the first injury to the baby’s head. 199. For those reasons, we reject the submissions that a verdict, other than a verdict of manslaughter, was unsafe, or that it was unsafe to attribute the injuries from which Femi ultimately died to anyone or to any cause other than this appellant’s own deliberate actions. For those reasons, his appeal is dismissed. General 200. A just resolution of the three trials to which these appeals relate depends upon the judge ensuring, so far as possible, that they proceed on what Judge LJ described as a logically justifiable basis ( Kai-Whitewind [90]). In Henderson that process established, for the reasons we have given, the guilt of the appellant. By contrast, in Butler there was no logically justifiable basis upon which a reasonable jury properly directed could conclude that the expert evidence adduced by the Crown established guilt. Certain lessons from these appeals in relation to case management and the structure and content of the summing-up may achieve the objective described by Judge LJ in prosecutions which depend solely on medical report evidence. 201. Justice in such cases depends upon proper advanced preparation and control of the evidence from the outset at the stage of investigation and thereafter. The police and the Crown Prosecution Service acknowledge the sensitivity of these cases and that the evidential picture may change as opinions from experts are obtained by either the prosecution or the defence. The approach of the prosecution in such cases has been published in “Guidance on the Prosecution Approach to Shaken Baby Syndrome Cases” by the Director of Public Prosecutions on 14 February 2006 and in updated legal guidance by the Crown Prosecution Service in relation to child abuse, access to which is obtainable on the internet. 202. The problem for the courts is how to manage expert evidence so that a jury may be properly directed in a way which will, so far as possible, ensure that any verdict they reach may be justified on a logical basis. 203. In Kai-Whitewind Judge LJ rejected the contention that where there is a conflict of opinion between reputable experts, expert evidence called by the Crown is automatically neutralised [84]. He emphasised that it was for the jury to evaluate the expert evidence even where the experts disagree as to the existence of the symptoms upon which their opinions were based [88-89]. But how is a jury to approach conflicting expert evidence? We suggest it can only do so if that evidence is properly marshalled and controlled before it is presented to the jury. Unless the evidence is properly prepared before the jury is sworn it is unlikely that proper direction can be given as to how the jury should approach that evidence. Thus the jury will be impeded in considering that evidence in a way which will enable them to reach a logically justifiable conclusion. 204. It is in those circumstances we must emphasise the importance of the pre-trial process. First, we suggest that the judge who is to hear a particular case should deal with all pre-trial hearings, save for those in which no issue of substance is to be considered. Second, it is desirable that any judge hearing cases such as these, which depend entirely on expert evidence, should have experience of the complex issues and understanding of the medical learning. This is easy enough to achieve in the Family Division, more difficult in a criminal jurisdiction. 205. Proper and robust pre-trial management is essential. Without it, real medical issues cannot be identified. Absent such identification, a judge is unlikely to be able to prevent experts wandering into unnecessary complicated and confusing detail. Unless the real medical issues are identified in advance, avoidable detail will not be avoided. 206. The process of narrowing the real medical issues is also vital in relation to another important function of the judge in advance of the trial. He should be in a position to identify whether the expert evidence which either side wishes to adduce is admissible. This assessment is as difficult as it is important. The test adopted by this court in Harris was described in the judgment of King CJ in R v Bonython [1984] 38 SASR 45 : First, whether the subject matter of the opinion falls within the class of subjects upon which the expert testimony is permissible and second, whether the witnesses acquired by study or experience have sufficient knowledge of the subject to render their opinion of value in resolving the issues before the court. Bonython was cited by this court in R v Reid & Ors [2009] EWCA Crim 2698 [111(i)] with the qualification that it is important that the court acknowledges advances to be gained from new techniques and new advances in science. Reid is concerned with DNA evidence but the observations of the court in relation to the admissibility of expert evidence apply with equal force to cases concerning baby shaking as it applied to the developing science of DNA. We shall return to emphasise the importance of Part 33 of the Criminal Procedures Rules 2010 in the context of these cases. We shall say no more about admissibility since the unsatisfactory state of the law has been the subject of the Law Commission Consultation paper No. 190 “The Admissibility of Expert Evidence in Criminal proceedings in England and Wales”, and is likely to lead to changes in the current approach of laissez-faire , which the Law Commission suggests requires reform (3.14). 207. Courts should be familiar with the Report on “Sudden Unexpected Death in Infancy: The Report of a Working Group Convened by the Royal College of Pathologists and The Royal College of Paediatrics and Child Health” chaired by Baroness Kennedy QC published in September 2004. The Kennedy report cautions against doctors using the courtroom to “fly their personal kites or push a theory from the far end of the medical spectrum”. It recommends a checklist of matters to be established by the trial judge before expert evidence is admitted, including:- “1. Is the proposed expert still in practice? 2. To what extent is he an expert in the subject to which he testifies? 3. When did he last see a case in his own clinical practice? 4. To what extent is his view widely held?” 208. We emphasise the third, which was of importance in these appeals. The fact that an expert is in clinical practice at the time he makes his report is of significance. Clinical practice affords experts the opportunity to maintain and develop their experience. Such experts acquire experience which continues and develops. Their continuing observation, their experience of both the foreseen and unforeseen, the recognised and unrecognised, form a powerful basis for their opinion. Clinicians learn from each case in which they are engaged. Each case makes them think and as their experience develops so does their understanding. Continuing experience gives them the opportunity to adjust previously held opinions, to alter their views. They are best placed to recognise that that which is unknown one day may be acknowledged the next. Such clinical experience, demonstrated, for example, by Dr Peters in the case of Henderson, may provide a far more reliable source of evidence than that provided by those who have ceased to practise their expertise in a continuing clinical setting and have retired from such practice. Such experts are, usually, engaged only in reviewing the opinions of others. They have lost the opportunity, day by day, to learn and develop from continuing experience. 209. Reid also contains important observations as to Part 33 of what are now the Criminal Procedure Rules 2010 . Those rules need to be deployed to ensure that the overriding objective to deal with criminal cases justly is achieved (1.1). The rules are designed to ensure that the expert opinion is unbiased (33.2.1) and in particular, by virtue of 33.3(1), that an expert report provides evidence of relevant experience and accreditation (a), details of any literature relied upon (b), that any range of opinion should be summarised and reasons given before the opinion of the expert (f) and that any qualifications to that opinion should be stated (g). 210. Generally, it will be necessary that the court directs a meeting of experts so that a statement can be prepared of areas of agreement and disagreement (33.6.2(a) and (b)). Such a meeting will not achieve its purpose unless it takes place well in advance of the trial, is attended by all significant experts, including the defence experts, and a careful and detailed minute is prepared, signed by all participants. Usually it will be preferable if others, particularly legal representatives, do not attend. Absent a careful record of the true issues in the case, it is difficult to see how the trial can be properly conducted or the jury properly guided as to the rational route to a conclusion. The court may be required to exercise its important power to exclude evidence from an expert who has not complied with a direction under [33.6(2), 33.6(4)]. The court should bear in mind the need to employ single joint experts where possible (33.7). 211. In the context of Part 33 we should draw attention to the fact that defence experts are not obliged to reveal a previous report they have made in the case, still less to reveal adverse criticism made by judges in the past. But a failure to do so will not avail the defence. A judge may well be able to exercise his powers under the Criminal Procedure Rules to ensure that in advance of a trial a defence expert has made disclosure of any relevant previous reports and any adverse judicial criticism. Failure to do so would be contrary to the overriding objective and will achieve no more than to expose the expert to cross-examination on those points at trial. It is difficult to see how those acting on behalf of the defendant could permit an expert report to be advanced without satisfying themselves that previous reports have been disclosed and any adverse judicial criticism identified and disclosed. Failure to do so by either side will only cast suspicion upon the cogency of the opinion. A defence team which advances an expert without taking those precautions is likely to damage its client’s case. 212. A case management hearing may often present an opportunity for concerns as to previous criticism of an expert and an expert’s previous tendency to travel beyond their expertise to be aired. Whilst such history may not be a ground for refusing the admission of the evidence, it may well trigger second thoughts as to the advisability of calling the witness. 213. As we indicated, if the case is to proceed on a logically justifiable basis, it must surely be concluded on a logically justifiable basis. A logically justifiable conclusion depends upon the structure and quality of the directions in summing up given by the judge. We have already drawn attention to the consequences in Schmidt of a summing-up which failed to direct the jury as to the issues [116]. 214. The essential medical issues which the jury have to resolve should be clear by the time the trial starts. Those issues should have been defined and the expert evidence, identifying the sources on which the evidence is based, should also be clear before the trial starts. Thus the direction of evidence-in-chief, cross-examination and any submissions, either at the close of the prosecution case or in speeches to the jury, should be focussed. Of course the evidence in such trials, as in any criminal trial, may take on a different colour as the case progresses. But we suspect that with proper advance trial management, the unforeseen is far less likely to occur in cases which depend entirely upon expert scientific evidence. 215. By the time the judge comes to sum up the case to the jury the issues and the evidence relevant to the issues should be understood by everyone, including the jury. Whilst it is conventional to discuss the law with counsel, the judge should, generally, take the opportunity to discuss the issues of medical evidence before the time comes for counsel to address the jury. The judge will thus be in a position carefully to structure his summing-up to those issues. He will be able to identify which evidence goes to resolution of those issues. He should generally sum the case up to the jury issue by issue, dealing with the opinions and any written sources for those opinions issue by issue, unless there is good reason not to do so. Merely repeating the expert evidence in the order in which that evidence was given serves only to confuse. It is pointless, literally. It deflects the jury from their task. It does not save them, as they must be saved, from avoidable details. It blurs their focus on evidence going to the real issues. The summing-up should enable anyone concerned with an adverse verdict to understand how it has been reached. 216. In the Family Division judges will set out the features of the expert evidence on which a judgment is required and those factors which form the basis of the judgment they have reached. So too a jury should be confronted with the issues it must decide and the factors they should consider as the basis for judgment, one way or the other. Anyone reading a summing-up composed in that way should be able to understand the route followed by the jury in reaching its verdict. 217. There are two features of the content of a summing-up in cases such as these which, we suggest, are important. First, a realistic possibility of an unknown cause must not be overlooked. In cases where that possibility is realistic, the jury should be reminded of that possibility. They should be instructed that unless the evidence leads them to exclude any realistic possibility of an unknown cause they cannot convict. In cases where it is relevant to do so, they should be reminded that medical science develops and that which was previously thought unknown may subsequently be recognised and acknowledged. As it was put by Toulson LJ, “today’s orthodoxy may become tomorrow’s outdated learning” ( R v Holdsworth [2008] EWCA Crim 971 at [57]). In cases where developing medical science is relevant, the jury should be reminded that special caution is needed where expert opinion evidence is fundamental to the prosecution [57]. 218. Second, the jury need directions as to how they should approach conflicting expert evidence. Kai-Whitewind teaches that the mere fact that expert differs from expert is no ground for withdrawing the case from the jury. But how is the jury to approach such a conflict? To suggest, in cases where the expert evidence is fundamental to the case, that the jury should approach that expert opinion in the same way as they do in every other criminal case, is inadequate. It is difficult enough for Family Division judges to express their reasons for accepting or rejecting conflicting expert evidence, despite their experience. Juries, we suggest, should not be left in cases requiring a higher standard of proof to flounder in the formation of a general impression. A conclusion cannot be left merely to impression. In the appeal of Henderson, Dr Leestma gave, if we may say so, a most beguiling impression, courteous and understated as it was. But there were, as we have concluded, sound reasons relating to his experience in comparison with Dr Al-Sarraj for rejecting what he told us. Lacking the experience of Family Division judges, a jury needs to be directed as to the pointers to reliable evidence and the basis for distinguishing that which may be relied upon and that which should be rejected. 219. In Harris the court pointed out the assistance given by Cresswell J [271]. That guidance is of assistance not only to judges, practitioners and experts themselves, but also to a jury. If the issue arises, a jury should be asked to judge whether the expert has, in the course of his evidence, assumed the role of an advocate, influenced by the side whose cause he seeks to advance. If it arises, the jury should be asked to judge whether the witness has gone outside his area of expertise. The jury should examine the basis of the opinion. Can the witness point to a recognised, peer-reviewed, source for the opinion? Is the clinical experience of the witness up-to-date and equal to the experience of others whose evidence he seeks to contradict? 220. Of course, none of these features will determine the case. Not all of these features are even relevant in every case. But we seek to emphasise the importance of guiding the jury as to the proper approach to conflicting opinions. An overall impression can never be the substitute for a rational process of analysis. The jury are not required to produce reasons for their conclusion. Nevertheless, the judge should guide them by identifying those reasons which would justify either accepting or rejecting any conflicting expert opinion on which either side relies. 221. We acknowledge the danger of being over-prescriptive in relation to directions to the jury. But judges, we suggest, need to remember that their directions are part of the means by which they ensure that a case which depends on expert evidence proceeds to its conclusion on a logically justifiable basis.

2010_06_17-2420.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1269/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1269

941748c67e35f091e818e79cac3aadaf8d2d34dc97431a75c32f5dab5d2d09c6

[2010] EWCA Crim 206

EWCA_Crim_206

crown_court

Neutral Citation Number: [2010] EWCA Crim 206 Case No: 200900738 A9 ; 200900826 A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 28th January 2010 B e f o r e : - - - - - - - - - - - - - - - - - - - - - MR JUSTICE SWEENEY SIR CHRISTOPHER HOLLAND R E G I N A v JORDAN AKEHURST & "M" - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company

Neutral Citation Number: [2010] EWCA Crim 206 Case No: 200900738 A9 ; 200900826 A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 28th January 2010 B e f o r e : - - - - - - - - - - - - - - - - - - - - - MR JUSTICE SWEENEY SIR CHRISTOPHER HOLLAND R E G I N A v JORDAN AKEHURST & "M" - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G James appeared on behalf of the First Applicant Miss L Oakley appeared on behalf of the Second Applicant Mr C May appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE SWEEENEY: These are applications for leave to appeal against sentence, following referrals by the Registrar. The identity of the second applicant, "M", is protected by an order under the Children and Young Persons Act 1933 . On 12th December 2008, in the Crown Court at Maidstone, Akehurst pleaded guilty to causing grievous bodily harm with intent, and M pleaded guilty to inflicting grievous bodily harm. On 20th January 2009 they were sentenced by His Honour Judge Carey as follows: Akehurst, four years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 , with an order that 123 days already spent in custody should count towards that sentence; M, a youth community order with a curfew order for three months, a supervision order for two years and a 24 hour reparation order. There was a co-accused, "R", who, like M, pleaded guilty to inflicting grievous bodily harm. He was sentenced to an 18 month detention and training order. 2. The facts, in summary, are these. At the time of the offences on 23rd July 2008, Akehurst was 13 years of age, M was 14 and the co-accused R was also 14. The victim, "B", was 13. The offences came about as a result of a pre-arranged fight. It appears that Akehurst was known as the "hardest" boy in his year at his school, and that the victim was also known as the "hardest" in his year at another school. It appears that Akehurst wanted a showdown fight, but the victim was less keen. The day before the fight the victim told a friend that Akehurst had threatened to throw bricks at his house if he did not turn up for the fight. Word of the fight spread, and at the time of the incident about 30 pupils had turned up at a park to watch. They all appeared to have been there in support of Akehurst. Three young people, apparently friends of Akehurst, collected the victim from his home address and took him to the park. About 30 minutes later Akehurst turned up. Upon his arrival there were no preliminaries to the fight, and the two youngsters squared up to each other. 3. What happened next was filmed by one of the spectators on a mobile telephone camera. Akehurst immediately punched the victim twice to the face. As a result the victim fell to the ground. Akehurst then continued the attack by repeatedly punching, kicking and stamping on the victim's head with his shod foot. All the while the victim was defenceless on the ground. M and R joined in the attack. M kicked the victim twice to the body whilst the victim lay motionless and defenceless on the ground. The attack only stopped when adults in the area approached and the applicants and the co-accused left. All three of them then went to M's home address together. 4. The court has viewed the film of these events. The film depicts an attack of sickening savagery over a period of about 25 seconds. The victim was left lying on the ground, bleeding heavily from his nose. An ambulance was called. He was unconscious when taken to hospital, where he was found to have a swollen and bloody mouth and further investigations revealed swelling to the brain. He was taken to intensive care and put on a ventilator. He was kept in hospital for two and a half months and received physiotherapy and speech and language therapy. He had to re-learn to eat, to dress, to wash and even to speak again. He was left with difficulty with cognitive functions and his personality had changed. The consultant paediatrician looking after him reported that the victim would continue to have problems with cognitive abilities, motivation, social skills, mood and behaviour for a long time to come. Indeed, it was uncertain whether he would be able to further his education, or even to gain employment in the future. 5. The applicants were interviewed. Akehurst made no comment. M made admissions but could not explain why he had kicked the victim. He also admitted taking the other two to his house afterwards in an attempt to hide. M made those admissions before he was aware of the film footage. R made no comment during his interviews. 6. In a victim impact personal statement the victim's mother described how her son had been cheated of his lust for life. She was worried about his future. The impact on family life had been dramatic. The family was waiting for the victim's rehabilitation placement, which was due to last six months, but finding the finance for this was a struggle. The victim had started to try to play football again, but was only capable of exercise for 20 minutes. He had been left with no emotion or expression. His mother had been left as his main carer, and had had to give up her voluntary work in a charity shop in order to fulfil that role. 7. Akehurst was born on 27th December 1994 and was of previous good character. M was born in January 1994 and was also of previous good character. There was a pre-sentence report before the court in relation to both applicants. 8. As to Akehurst, the report indicated that he had said that he had lost control and did not know what he was doing at the time of the offence, that he now said that he felt sick about what he had done, but that he did not display any victim empathy. Indeed, the author noted, he legitimised his behaviour by stating that he had responded to a threat from the victim. In the author's view, Akehurst had not taken responsibility for the brutality of the attack. It appeared that he had willingly participated in the fight and his reputation for being the "hardest" boy in his year at school was noted. His parents had stated that there had been no concerns about his behaviour at home, but the author noted that there had been an earlier incident of violence by Akehurst in school. Akehurst himself, it appears, struggled to think of alternatives to violence in situations. However, the author stated that whilst remanded prior to sentence, at the Rebound Secure Training Centre, Akehurst's behaviour was described as excellent. The risk of him causing harm in the future was assessed as high. No alternative to a custodial sentence was proposed. 9. The pre-sentence report in relation to M indicated that he had admitted kicking the victim twice, and also that afterwards he had invited the two other participants back to his home. The author noted that M now said that he felt sick after the attack, but was unable to explain why he had kicked the victim. He was, in the author's view, either unwilling or unable to explain himself beyond saying that he felt bad about what had happened. The report noted that M had said that he had witnessed previous fights but had never got involved. It appeared, therefore, that his behaviour had been out of character. It was further noted that he had been open in police interview and the author expressed the opinion that deep down, M was ashamed of what he had done. There had been no particular behaviour problems prior to the offence and his family and friends were shocked at what had happened. His behaviour at school had been described as good, and indeed M gave the impression of being a decent, likeable young person who would not be predicted to get into trouble. The likelihood of re-offending was thus assessed as very low and the risk of serious harm was assessed as being low. A supervision order was proposed. 10. There were a number of character references in relation to each of the applicants before the court, and a letter from M himself. 11. In passing sentence, the learned judge made a number of observations as follows. The attack on B was violent and cowardly, and while it was unclear who had instigated the fight, the court suspected that there had been a good deal of talk and bravado, and the potential for misunderstanding and loss of face. What was, however, clear was that the victim had been the victim of a vicious attack by Akehurst. This incident had gone way beyond a school scrap, and had appalled those who had seen it. Akehurst had not been content with just knocking the victim to the ground, but set about kicking, punching and stamping on his head. There had been at least three stamps to the head. M and R had joined in the cowardly attack when the victim was probably already unconscious. M and R may not have appreciated how seriously injured the victim was at the time, but their involvement was wholly criminal and culpable. The victim had been left with a brain injury with all the consequences to which we have already made reference. In contrast, the defendants would serve their sentence and go on with their lives, whereas the victim would be affected for the rest of his days. The learned judge indicated that he bore in mind that the defendants were still very young and so the need for rehabilitation was noted. However, in his view Akehurst's culpability was so great that he had to receive a substantial period of detention. He was the ringleader and the main participant and he had inflicted very serious injury. M and R were lesser participants, and their cowardly kicking had probably caused relatively little injury in itself. However, their culpability was considerable given their joint participation with Akehurst and the timing of it. 12. The learned judge noted that Akehurst was still only 14, but had been 13 at the time of the offence and when he had pleaded guilty. He had no previous convictions and was not regarded as a bully at school. However, he had to be punished and be seen to be punished. The sentence had to reflect the seriousness of the offence. A detention and training order was considered, but his offending was so serious that the detention period had, in the learned judge's view, to be longer than two years. Akehurst was given full credit for his plea and his lack of previous convictions was noted. It was against that background that the learned judge imposed the sentence to which we have already made reference. 13. In sentencing M, the learned judge stated that had he been at liberty to impose an immediate custodial sentence, he would have done so. However, the learned judge continued: "You are someone who must be sentenced not to immediate custody, but to some form of community order, because of your age at the time of your conviction, and because Parliament has set clear boundaries for the disposal of offenders of your age and in your position, for the offence to which you have pleaded guilty. I therefore have no choice but to impose a non-custodial sentence. You should count yourself extremely fortunate in having that result." The learned judge went on to say that he was satisfied that the offence was out of character and was confident that M would not come before the court again. His best mitigation was the fact that he had made a full confession when first interviewed. It was against that background that the learned judge passed the sentence to which we have already made reference, indicating thereafter that the reason why he had not remitted M to the Youth Court for sentence was because he saw no injustice in M being dealt with in the Crown Court. 14. The ground of appeal put forward on behalf of Akehurst is that the sentence was manifestly excessive, given his young age. The ground of appeal put forward on behalf of M is that the sentence was wrong in law as the learned judge erred in refusing to exercise his power to remit M to the Medway Youth Court for sentence pursuant to section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 (" the 2000 Act "), with the only sentencing options available in the Youth Court being a referral order or an absolute discharge. 15. Dealing with Akehurst first, it is submitted in the skeleton argument put forward on his behalf that this case falls within the second highest level of offence as set out on page 13 of the relevant Sentencing Guidelines Council guideline, which, for an adult, involves a starting point of eight years' custody and a range of seven to ten years. It is rightly pointed out that in sentencing a 13/14 year old the court must have regard to the principal aim of the youth justice system, namely to prevent offending by children and young persons, and must also have regard to the welfare of the offender himself or herself. As to the principal aim of the youth justice system, that of course includes the need to demonstrate to the offender that criminal conduct is not acceptable and to demonstrate more generally that the law is being effectively enforced. What is required, it is submitted, is an individualistic approach in which the culpability of the offender and the harm caused, whether intended or foreseeable, is assessed taking into account aggravating and mitigating features, followed by any reduction for plea, and thereby to determine the ultimate sentence. It is pointed out that, generally, a young person should be dealt with less severely than an adult offender. It is submitted that the severity should reduce in proportion to the age of the offender, bearing in mind that young offenders typically lack the maturity fully to appreciate the consequences of their conduct, and that many youngsters grow out of crime, and that for a young person any sentence will seem far longer in comparison with their relative age than it would for an adult offender. It is pointed out that the key elements are the offender's age, both chronological and emotional, the seriousness of the offence, the likelihood of further offences being committed and the extent of harm likely to result from those further offences. 16. Thus, whilst accepting that the custodial threshold was passed in Akehurst's case, the essential submission advanced on his behalf is that, given the need to avoid the sentence having a crushing effect, the likelihood that Akehurst will mature and develop and the desirability of promoting a young offender's reintegration into society, a shorter sentence should have been imposed. A number of authorities are cited in support of those propositions which, as general propositions of law and approach, we accept. 17. The principal points urged on Akehurst's behalf during the hearing were his age, the fact that (from the latest report of his progress in custody) he is doing extremely well, and the recent Guidelines in relation to the sentencing of children and young persons which point out a sliding scale of reduction from the sentence appropriate for an adult offender in the range of one half to one third depending on age. 18. The fact is, however, that this was an offence of extreme gravity. It involved the use of a weapon, a shod foot, on a defenceless victim and with absolutely devastating consequences for him and his family. At paragraphs 22 and 23 on page 6 of the Sentencing Guideline Council Guideline relative to offences of this type it is recognised that the use of a weapon may take an offence into a higher sentencing range. That, in our view, is the case here, and plainly so. Based on the use of the shod foot as a weapon alone as an aggravating feature, the appropriate starting point for an adult in this case would, in our judgment, have been in the order of 12 years or more after a trial; that is before taking into account the other aggravating features and balancing them against the mitigating features. In those circumstances it seems to us that a starting point in relation to Akehurst that was at least one half of that appropriate to an adult was not, although tough, manifestly excessive. It was, it seems to us that, albeit at the top, nevertheless within the appropriate range for an offence of this extreme gravity. It follows that having made an appropriate discount from a notional sentence after a trial that was within the appropriate range, it cannot be suggested that the sentence that the learned judge passed was excessive. In those circumstances Akehurst's application is dismissed. 19. Dealing next with M, the sole issue, as we have already touched on, is whether the learned judge should have remitted him to the Youth Court in accordance with the provisions of section 8 of the 2000 Act . The section provides that, unless the Crown Court is satisfied that it would be undesirable to do so, it must remit a child or young person for sentence in the Youth Court. 20. On M's behalf, Miss Oakley argues that the learned judge should have ordered such a remittal. The matters to which she draws our attention, in particular, are these. Firstly, there is a significant difference between the sentence that was imposed, which carries a rehabilitation period of two and a half years, as opposed to a referral order, which would have been the maximum sentence available in the Youth Court, and which would have been spent at its conclusion, which was a maximum of 12 months. Secondly, she directs our attention to two authorities, and in particular to R (on the Application of W, S and B) v the Brent Youth Court, the Enfield Crown Court and the Richmond on Thames Youth Court [2006] EWHC 95 (Admin) She relies, in particular, on the way in which the court dealt with the applicant S in that case (in relation to analogous provisions) at paragraph 20 onwards of the judgment. The second authority is Lewis (1984) 79 Cr App R 94. Miss Oakley draws our attention to the principles identified in the judgment as relating to the operation of the analagous provisions of section 56(1) of the Children and Young Persons Act 1933 (as amended): "Possible reasons that it would be undesirable to do so are as follows - these of course are by no means comprehensive: that the judge who presided over the trial will be better informed as to the facts and circumstances; that there is, in the sad and frequent experience of this Court, a risk of unacceptable disparity if co-defendants are to be sentenced in different courts on different occasions; thirdly, that as a result of the remission there will be delay, duplication of proceedings and fruitless expense; and finally, the provisions for appeal which are, as to conviction in the Crown Court an appeal to the Court of Appeal (Criminal Division) and as to orders made in the juvenile court an appeal to the Crown Court. This contrasts with the adult Magistrates' Court." Lastly, Miss Oakley draws our attention to the fact that M is clearly doing well on the order that he is currently the subject of, with real consideration being given to that order being revoked having achieved its purpose. She also points out that he is about to represent Great Britain [as an athlete in a European event]. 21. Notwithstanding the charm with which this submission has been advanced, it seems to us to be patently obvious that this was a case in which the learned judge was entitled to take the view that it was undesirable to remit M for sentence in the Youth Court. The learned judge had the advantage of the full picture, having presided over the sentencing exercise of the two co-defendants. There was plainly a risk of unacceptable disparity, and indeed also of injustice to the two co-defendants, if the three of them were split up in the way suggested. Accordingly, it seems to us that the learned judge's decision was well within the appropriate bracket of discretion available to him, and accordingly M's application is also dismissed. 22. In the result therefore we dismiss both of these applications.

2010_01_28-2238.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/206/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/206

60cd4b7a5503e9bdfebd35ce64e58dcca31e66912e5b749b7924995ef3f9c0b1

[2005] EWCA Crim 2487

EWCA_Crim_2487

crown_court

No: 200502009/A2-200502010/A2 Neutral Citation Number: [2005] EWCA Crim 2487 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 7th October 2005 B E F O R E: MR JUSTICE GOLDRING MR JUSTICE WILKIE - - - - - - - R E G I N A -v- NICHOLAS VERNON STANSFIELD CHRISTOPHER LENNON STANSFIELD - - - - - - - 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 (

No: 200502009/A2-200502010/A2 Neutral Citation Number: [2005] EWCA Crim 2487 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 7th October 2005 B E F O R E: MR JUSTICE GOLDRING MR JUSTICE WILKIE - - - - - - - R E G I N A -v- NICHOLAS VERNON STANSFIELD CHRISTOPHER LENNON STANSFIELD - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR G COOKE appeared on behalf of the APPELLANTS - - - - - - - J U D G M E N T 1. MR JUSTICE WILKIE: This is the appeal against sentence of Nicholas Vernon Stansfield, now aged 38, and Christopher Lennon Stansfield, now aged 24, with leave granted by the Single Judge who also granted the necessary extension of time and a representation order. 2. On 20th May 2004, at Bradford Crown Court, Her Honour Judge Sutcliffe sentenced each of them to 7 years' imprisonment on one count of aggravated burglary of which they had each been convicted after a trial. In respect of Nicholas Stansfield there was a second count, wounding with intent, which was an alternative to count 1 and no verdict was recorded. Similarly, in respect of Christopher Stansfield, no verdict was recorded on count 2, wounding with intent, but he was found not guilty on count 3, namely intimidation. 3. The circumstances of the offence are as follows. The appellants are brothers. The victim lived in a caravan and was friendly with another man called Dennenney who had previously been in a relationship with a woman called Miss Daniels and they had two children. Miss Daniels then commenced a relationship with Christopher Stansfield. Over Christmas 2002, Christopher Stansfield and the two children went on holiday to Spain. Arrangements had been made for Mr Dennenney to pick them up from Liverpool Airport on their return. But on the morning of 28th December the victim, Mr Bolton, received a telephone call from Christopher who appeared to blame him for the fact that Dennenney was not at the airport to meet them. 4. At about 11.00 pm on 1st January 2002 Mr Bolton was asleep in his caravan together with a friend who was staying the night. Mr Bolton was woken by shouting in his caravan and felt blows to his body. His friend ran out of the caravan and was so scared at what then transpired that he remained outside, in deep snow, for a period of half-an-hour, notwithstanding the fact that he was entirely naked. Mr Bolton immediately recognised the appellants. There was a third man with them, who was masked, whom he did not recognise. The brothers began hitting him with baseball bats. Nicholas Stansfield shouted something to him about Dennenney torching his car and both brothers shouted at him that he was responsible for starting the war between them. Christopher Stansfield shouted something about children. 5. Mr Bolton kept telling them that he did not know where Mr Dennenney was and put his arms up to protect himself. The attack went on for several minutes before the appellants and the other man left, smashing a couple of windows in the caravan as they did so. Mr Bolton made his way to a friend's home and from there the police and an ambulance were summoned. He was taken to hospital where he was treated for numerous bruises to his head, ribs and body, a cut to his left hand which required nine stitches, a broken right wrist and a wound in his leg which required three stitches. 6. Nicholas Stansfield was born on 16th July 1966. He has certain previous convictions but none of them of any relevance to this case. Christopher Stansfield was born on 5th January 1981 and was prior to this of previous good character. 7. The judge had the benefit of pre-sentence reports. They were dated 18th August 2003 in the case of Nicholas Stansfield and 15th August 2003 in the case of Christopher Stansfield. This was in advance of the trial and reflects the fact that on an earlier occasion they had, each of them, apparently on the basis of counsel's advice, entered pleas of guilty but they were permitted by the court to vacate those pleas and to enter pleas of not guilty, which then resulted in the trial after which they were convicted. 8. In addition to that material, we have had sight not only of a pre-appeal report from the prison but also a number of documents from the relevant prison and education establishments which demonstrate, not only that they are unproblematic as prisoners but have manifestly, in a number of ways, been making extremely good use of their time in prison. 9. The judge in sentencing them said, amongst other things as follows: that everyone was entitled to feel safe when they went to bed in their own home. The caravan was Bolton's home and he was entitled to sleep there undisturbed. When people force their way into someone else's home, armed with weapons, the courts had to pass deterrent sentences so that anyone who was tempted to take the law in their own hands would know they would have to pay a substantial price. She mentioned that it might be right that Nicholas Stansfield had been subjected to considerable provocation, but he had taken out his feeling not on the person he thought was responsible, but rather had attacked a seemingly ineffectual man who had done him no wrong. Christopher Stansfield seemed to take it out on the man because he perceived he had let him down and had willingly become involved in his brother's argument. No doubt they had expected to find Mr Dennenney there, but when they did not, they had taken it out on Bolton and she emphasised the terrifying nature of the incident leading to the fleeing of the other occupant of the caravan in circumstances which we have referred to. 10. She referred to the fact that they had initially pleaded guilty, but had been allowed to change their minds and had to be sentenced on the basis that they had been convicted by the jury. She also mentioned the impact which the incident had had on Mr Bolton. She accepted his description that: "...he is now a nervous wreck as a result of what you did to him... and indeed he turned to drink as a result of this incident and has been drinking since." She also made some reference to the fact that his drinking had been a matter about which he had been taxed in the course of the trial. 11. The grounds of appeal did not seek to raise any argument in respect of discrepancy between the two brothers who were sentenced to an identical term. As far as each of them was concerned, it was said that insufficient account had been taken of personal mitigation, either their relatively minor previous convictions or in the case of Christopher, the fact that he was a man of no previous conviction. The grievance which they felt against Dennenney concerning previous incidents, including a belief that he had torched Nicholas's car in the past, were also matters which it was said the judge had failed satisfactorily to take into account. Each of them raised the contention that they believed that the judge had penalised them for changing their pleas whereas their earlier pleas of guilty had been entered as a result of bad advice given by counsel. 12. Mr Cooke, who has resolutely advanced his case to us this morning, has also emphasised what he says was a deficiency in the sentencing remarks in that the learned judge did not refer to particular matters of mitigation and in particular the exemplary character of the defendants prior to their involvement in this offence. 13. The task which we have to perform is to consider whether a sentence of 7 years' imprisonment, passed on each of these appellants, after a trial, for the aggravated burglary which we have described, is manifestly excessive. Having considered all of the matters urged upon us, we are perfectly satisfied that the trial judge when sentencing did not unduly hold it against either of these appellants that they had the advantage of a change of plea, rather she recorded, as she was bound to do, that she was sentencing them as persons who had been convicted and who therefore were not entitled to any discount by reason of a plea of guilty. Nor do we think that there is anything at all in the point that she may or may not have referred to every single item of mitigation which had been mentioned in court or was otherwise contained in the reports. 14. We also are entirely unpersuaded that the sentences of 7 years, in respect of this horrific offence, committed against Mr Bolton was in any way manifestly excessive after a trial. It therefore follows that notwithstanding the best efforts of Mr Cooke, this appeal against sentence in respect of each of these appellants must be dismissed.

2005_10_07-606.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2487/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2487

d677c05f7ea6e984f904c688f2d1d4ccfb2188d7aef2e4e745629d134936589c

[2020] EWCA Crim 597

EWCA_Crim_597

crown_court

Neutral Citation Number: [2020] EWCA Crim 597 Case Nos: 201804971 B1 and 201902387B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HIS HONOUR JUDGE BATE INDICTMENT NO: T20160104 Royal Courts of Justice Strand, London, WC2A 2LL Date: 6 May 2020 Before: Lord Justice Lindblom Mr Justice Hilliard and His Honour Judge Flewitt Q.C. - - - - - - - - - - - - - - - - - - - - - Between: Mehemet Mustafa 201804971B1 Appellant - and - Finbar Breslin - and - 201902387B1 Applicant The Environment Agency Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Andrew Thomas Q.C. and Ms Samantha Riggs (instructed by Clyde & Co. ) for the Appellant Ms Samantha Riggs (instructed by the Registrar of Criminal Appeals ) for the Applicant Mr Austin Stoton (instructed by the Environment Agency ) for the Respondent Hearing date: 27 February 2020 - - - - - - - - - - - - - - - - - - - - - Judgment Approved by the court for handing down Judgment Approved by the court for handing down Mustafa and Breslin v The Environment Agency Lord Justice Lindblom: Introduction 1. On 9 December 2015 in the Crown Court at Basildon, H.H.J. Lodge dismissed two charges against the appellant Mehemet Mustafa, the applicant Finbar Breslin and their co-accused Adrian Hennessy in proceedings brought by the Environment Agency under the Environmental Permitting (England and Wales) Regulations 2010. The offence charged in count 1 on the indictment was the contravention of regulation 41(1)(b) “by neglecting in the commission of an offence by a body corporate”. The offence charged in count 2 was the contravention of regulation 41(1)(a) “by consenting or conniving in the commission of an offence by a body corporate”. 2. The 2010 regulations were revoked and replaced, in substantially the same form, by the Environmental Permitting (England and Wales) Regulations 2016, with effect from 1 January 2017. We shall, however, refer to them throughout this judgment as if they were still in force. 3. On 14 March 2016, Spencer J. granted leave to prefer a voluntary bill of indictment against all three accused, with a single consolidated count, in which the offence was stated to be: “CONTRAVENTION OF REGULATION 12 OF [THE 2010 REGULATIONS], contrary to regulations 38(1)(a) and 12(1)(a) of [the 2010 regulations].” The particulars of that offence were stated to be: “Between the 3 rd day of September 2013 and the 6 th day of December 2013 PRIME BIOMASS LIMITED (“the company”) by reason of the operation of a Regulated Facility[,] namely … a waste operation at Dover’s Corner Industrial Estate, Rainham, Essex otherwise than under and to the extent authorised by an Environmental Permit, contravened Regulation 12(1)(a) of [the 2010 regulations] thereby committing the offence under Regulation 38(1)(a) and this offence was committed with the consent or connivance of, or attributable to neglect on the part of, ADRIAN HENNESSY, FINBAR BRESLIN and MEHEMET MUSTAFA, each a director of the company.” 4. On 2 November 2018, after a trial in the Central Criminal Court before H.H.J. Anthony Bate, Mustafa and Breslin were convicted on that single count. Hennessy was acquitted. Sentencing has been adjourned pending the outcome of the proceedings in this court. 5. Mustafa now appeals against conviction by leave of the single judge. Breslin applies for an extension of time, of some five months, in which to apply for leave to appeal against his conviction. Breslin’s applications have been referred to the full court by the Registrar. 6. Mustafa’s appeal is on two main grounds. The first, for which leave was granted by the single judge, is that the trial judge – following the conclusions of Spencer J., as he was bound to do – erred in directing the jury on the law relating to the offence, and in particular on the question of whether, at the relevant time, the company’s operation was an “exempt facility” as defined in the legislation. The second ground, which was not before the single judge and for which leave is therefore required, is that the trial judge erred in failing to give – or trial counsel was at fault in failing to seek – a good character direction for Mustafa, who, it is said, was entitled to be treated as a man of good character. Breslin adopts Mustafa’s first ground. The facts 7. Prime Biomass Ltd. was incorporated on 21 September 2012. Mustafa, Breslin and Hennessy were all directors of the company at the time of the alleged offence. 8. The company operated a facility for the storage and treatment of waste wood on premises at the Dover’s Corner Industrial Estate. At the relevant time it had a contract with a Swedish energy company called Vattenfall. To fulfil the requirements of that contract it had to transfer waste wood to the port at Harwich and ship it to Sweden to be used as fuel. The wood was supplied to the site at Rainham, where it was treated, and then moved to another site before being exported. Two shipments of waste wood were made to Sweden in late 2013 and early 2014: a shipment of 2,389 tonnes on 18 December 2013, and a shipment of 2,381 tonnes on 9 January 2014. 9. There is no dispute that the company’s operation at Rainham fell with the ambit of the 2010 regulations. Under regulation 8 it had to be either a “regulated facility”, which required an environmental permit, or an “exempt facility”. No environmental permit was ever granted or applied for. 10. On 21 January 2013, the company registered the operation at the site as an “exempt facility”. The exemption, referred to as a “T6 exemption”, allowed up to 500 tonnes of waste wood to be stored or treated at the site over any seven-day period. Treatment included chipping, shredding, cutting or pulverising. The T6 exemption ran until 12 March 2014. 11. As a result of the introduction of the regulatory position statement, (RPS) 131 version 1, in January 2013, regulatory requirements were put in place for the storage of waste wood on the dockside at Harwich. Consent to export 30,000 tonnes from the port was granted on 13 November 2013 by a trans-frontier shipment of waste authorization. 12. On 28 March 2013, two officers of the Environment Agency, Mr Ijaz Sawar and Ms Cathryn Jones, went to the site to discuss with those present the operation the company intended to undertake. There seems to be no dispute that the T6 exemption was being complied with at that stage. 13. Later, however, on a number of visits to the site between 3 September and 6 December 2013, officers found that the waste wood on the site exceeded 500 tonnes. 14. Mr Sawar visited the site on 4 September 2013. He met Breslin, and told him that the waste stored on the site was more than the 500-tonne limit allowed by the T6 exemption. Breslin accepted that this was so, and admitted that some 1,200 tonnes of waste wood was on the site. The officer told Breslin that it must be reduced to 500 tonnes by 17 September 2013. On 5 September 2013 the company was provided with a Compliance Assessment Report (Exemption) (“CAR-E”) form, which stated on the back, under the heading “Enforcement Action”, that “[any] non-compliance of [sic] an exemption or of the objectives is an offence, and renders the exemption invalid”. The company was advised to act urgently to reduce the amount of waste wood on the site. 15. Mr Sawar visited the site again on 6 and 19 September 2013. Further CAR-E forms were completed for these visits, on 10 and 24 September 2013 respectively, warning that if the company failed to reduce the amount of waste wood to comply with the T6 exemption, enforcement would follow. The deadline for compliance was extended to 25 September 2013. 16. On 24 September 2013, Breslin sent an email to the Environment Agency, agreeing to reduce the height of the waste stored on the site, and stating that 200 tonnes a week would be removed. 17. On 30 October 2013, Mr Sawar visited the site once again, and found that the amount of waste wood had been reduced to between 500 and 600 tonnes. He told Mustafa, who was there, that the company should continue to reduce the waste wood until it came within the 500-tonne limit. Another CAR-E form was provided to the company, on 31 October 2013. 18. Mr Sawar made further visits to the site on 8 and 15 November 2013. It appeared that the amount of waste wood had not been reduced since the previous visit; that, on the first of these occasions, more waste wood had been received; and that, on the second, the quantity appeared to have increased. On 8 November 2013, Breslin was told that more waste should not be received. On 15 November 2013, another representative of the company, Mr Paul, was told that the quantity of waste must be reduced. Further CAR-E forms were issued, on 8 and 20 November 2013. 19. Between those two occasions, on 13 November 2013, Ms Jones went to the site and estimated that there were about 3,176 tonnes of waste wood on it. 20. On 5 December 2013, Mr Sawara and Ms Jones visited the site to undertake a formal survey. All three accused were there. The officers determined that there were about 4,180 tonnes of waste wood on the site, informed the accused that this was so, and told them that the import of waste must be stopped. Another CAR-E form was provided, on 13 December 2013. 21. Between 9 December 2013 and 8 January 2014, the company sent the Environment Agency details of waste movements to and from the site, which showed that this activity had continued. 22. By a letter dated 10 February 2014, Mr David Jennings, the Environment Agency’s Environment Management Team Leader, required the company to “stop receiving waste and to bring [the] site into compliance” with the T6 exemption by 21 March 2014. The letter went on to say that the site would be “monitored”, and that “should any waste be received without an appropriate environmental permit or relevant exemption [the company] will be committing a criminal offence under [regulations] 12 and 38 of [the 2010 regulations]”. 23. In the course of February 2014, arrangements were made for the removal of waste wood from the site. 24. On 24 February 2014, the Environment Agency received a letter from the company, confirming its commitment to removing waste wood from the site, and indicating that it was going into liquidation by the end the following month. 25. On 6 March 2014, Mr Jennings wrote to the company again, saying that the company’s operation had “ceased to be an exempt waste operation” and that “an environmental permit is required to store more than 500 tonnes of wood at any one time”, and confirming that “[the] initial deposit and ongoing storage of this material is an offence under Regulation 38(1)(a) …”. 26. On 12 March 2014, Mr Jennings and Mr Sawar went to the site, and saw a large amount of waste wood, deposited in piles. 27. On 24 March 2014, Mr Jennings sent a letter to the company, informing it that the T6 exemption had been removed from the public register on 12 March 2014, and stating that the continuing storage of material at the site was an offence under regulation 38(1)(a) of the 2010 regulations. 28. The company went into voluntary liquidation on 24 March 2014. 29. By then, the Environment Agency had received complaints from several neighbouring business owners about nuisance caused by emissions of wood dust from the site. 30. All three accused were interviewed under caution. Both Mustafa and Hennessy suggested that Breslin was mainly in control of the site. Breslin said that Mustafa managed it. Hennessy said he had been made a director of the company by its parent company, Prime Energy Power Ltd.. 31. The prosecution case was that between the dates in question the company was not complying with the registered T6 exemption, because on visits made by officers during that period the waste wood found at the site exceeded 500 tonnes. It was also alleged that dust escaping from the site was such as to endanger human life or to harm the environment. It was contended that because the registered exemption was not complied with, the company’s operation became a “regulated facility” and required an environmental permit. By continuing to operate without an environmental permit, the company was in breach of regulation 12, so that an offence under regulation 38 had been committed, and in the circumstances the directors were personally liable. 32. The defence case for all three accused was that there was no consent, connivance or neglect on their part so as to make them criminally liable for the acts or omissions of the company, and that the company’s operation was compliant with the exemption during at least some of the visits made by the officers. 33. On 13 October 2015 H.H.J. Lodge heard the defence application to dismiss both counts on the original indictment. The defence contended that under the legislative scheme, which expressly provides for the removal of an exemption, the T6 exemption registered by the company had remained in place until it was removed. The application was opposed by the Environment Agency, on the basis that if the terms of an exemption are breached, the exemption ceases to be effective; that, in the absence of an exemption, the operation would be a “regulated facility”; that an environmental permit would then be required; and that if an environmental permit was not obtained an offence would be committed. In his ruling dated 3 November 2015, granting the application to dismiss, H.H.J. Lodge accepted the argument the defence had put forward. On 9 December 2015 he quashed the indictment. 34. The Environment Agency challenged that ruling by its application for consent to prefer a voluntary bill of indictment, contending that H.H.J. Lodge’s interpretation of the 2010 regulations was wrong in law. In his judgment, Spencer J. concluded that the charges against the accused had been wrongly dismissed, and that there was no reason why they should not be allowed to continue to trial. 35. When the trial eventually proceeded in October 2018, the Environment Agency relied on the evidence of the officers who had visited the site in the relevant period; on the officers’ communications with the accused, which demonstrated their knowledge of the breach of the conditions of the exemption; on the complaints that had been made about dust escaping from the site; on the interviews of Mustafa and Breslin under caution, in which they had sought to fix blame on each other; and on the failure of the accused to give evidence. 36. Mustafa’s defence at trial, foreshadowed in interview and set out in his defence case statement, was that his role in the company was limited to administration, including invoicing and debt collection, that he did not exercise any control over the site, and that Breslin was responsible for the operation there. He had acknowledged in his interview that a delay in obtaining the trans-frontier shipment of waste authorization for the shipments to Sweden may have led to excess wood being stored on the site. Breslin’s defence, indicated in his interview, was that he had done his best to comply with the exemption. He relied on his previous good character. Hennessy maintained that he had never been at the site, and that Breslin and Mustafa were in charge of the operation. None of the accused gave evidence. 37. In his summing-up, H.H.J. Bate directed the jury on the law relating to the offence. His directions reflected the conclusions of Spencer J.. He told the jury that the prosecution had to make them sure that at least one of two circumstances had occurred: first, that the total quantity of waste stored at the site over any seven-day period within the indictment exceeded 500 tonnes; and second, that the type and quantity of waste, and method of disposal or recovery at any time within the indictment was, through the escape of dust from the site, inconsistent with the objectives of the Waste Framework Directive (Directive 2008/98/EC) – because it endangered human health or harmed the environment. If they were sure of one or both of those things, the breach rendered the “T6 exemption” invalid; the company required an environmental permit to operate on the site; and its continued operation without a permit was unlawful, in contravention of regulation 12. 38. The judge gave a good character direction for Breslin and Hennessy, but not for Mustafa. The 2010 regulations 39. Under the 2010 regulations, establishments or undertakings that carry on certain waste disposal or recovery operations are, as we have said, either “regulated” or “exempt”. The operation of a “regulated facility” requires an environmental permit, granted under regulation 13. The operation of an “exempt facility” does not. Regulation 8(2)(a) provides that an “exempt facility” is not a “regulated facility”. It follows that if an operation is not an “exempt facility” it must be a “regulated facility”. The two are mutually exclusive. Regulation 12(1) provides, so far as is relevant here, that “[a] person must not, except under and to the extent authorised by an environmental permit … (a) operate a regulated facility”. Under regulation 38(1)(a) it is an offence for a person to contravene regulation 12(1). If an operator does not hold an environmental permit for a “regulated facility”, there is a breach of regulation 12(1)(a) and an offence is committed. Regulation 41(1) provides that if an offence committed by a corporate body is proved either “(a) to have been committed with the consent or connivance of an officer” or “(b) to be attributable to any neglect on the part of an officer”, the “officer as well as the body corporate is guilty of an offence …”. 40. An “exempt facility” is defined in regulation 5(1)(a): “In these Regulations – “exempt facility” means – (a) an exempt waste operation …”. 41. An “exempt waste operation” is also defined in regulation 5 and, so far as relevant here, means a waste operation: “… that meets the requirements of paragraph 3(1) of Schedule 2 …”. 42. Paragraph 3(1) of Schedule 2 provides: “3(1) For the purposes of the definition of “exempt waste operation”, the requirements are – (a) that a waste operation – (i) falls within a description in Part 1 of Schedule 3, and (ii) satisfies the general and specific conditions specified in Part 1 of that Schedule in relation to the description; (b) subject to sub-paragraph (2) and paragraph 9(10) of this Schedule – (i) that the waste operation is registered, and (ii) an establishment or undertaking is registered in relation to it; and (c) that the type and quantity of waste submitted to the waste operation, and the method of disposal or recovery, are consistent with the need to attain the objectives mentioned in Article 13 of the Waste Framework Directive …”. The objectives of article 13 of the Waste Framework Directive are, essentially, to avoid pollution and harm to human health. 43. As to (a), the “general conditions”, as set out in chapter 2, section 1, paragraph 3 of Schedule 3 are that: “(a) the operation is for the purposes of recovering or reusing the waste, unless otherwise stated in the specific conditions; (b) the waste used is suitable for the purposes of the operation; (c) no more waste is used than is necessary to carry on the operation.” The “specific conditions” for the treatment of waste wood and waste plant matter by chipping, shredding, cutting or pulverising (T6) are set out in chapter 3, section 2, paragraph 6(3) of Schedule 3: “For the purposes of this paragraph, the specific conditions are that – (a) the total quantity of waste treated or stored over any 7-day period does not exceed 500 tonnes; and (b) no waste is stored for longer than 3 months after treatment.” 44. The registration provisions are in paragraphs 6 to 14 of Schedule 2. Under paragraph 6, an establishment or undertaking “seeking to be registered” must notify the relevant authority of specified particulars relating to the waste operation. The application can be made online, but must be in the form specified by the relevant authority. Under paragraph 7(1) an exemption registration authority must establish and maintain a register of exempt facilities. After an entry is made, it must, within five working days, ensure that the register contains the relevant particulars. Within five working days of being notified of any change, it must ensure that the register is brought up to date. The register must be open to inspection by the public. 45. A fee is payable for an environmental permit, but not for the registration of a waste operation as an “exempt facility”. 46. The duty to remove entries from the register is provided in paragraph 8, which states: “8(1) The duty to maintain a register in paragraph 7(1) includes a duty to remove an entry from the register if – (a) the exemption registration authority becomes aware that the exempt facility is no longer in operation at the place stated in the particulars; (b) the facility ceases to be an exempt facility … … (2) If the exemption registration authority removes an entry from the register under sub-paragraph (1), it must notify without delay the occupier, operator or other person registered in relation to the exempt facility …”. 47. In a guidance document published in March 2010 by the Department for Environment, Food and Rural Affairs, “Environmental Permitting Guidance [on] Exempt Waste Operations”, paragraph 6.40, under the heading “Duty to remove entries from the register”, describes the circumstances in which a duty arises to remove an entry from the register. These include the waste operation being “no longer an exempt waste operation (for example, an establishment or undertaking that fails to renew its registration will no longer be exempt or an operation that is operating outside the exempt waste operation conditions and requires an environmental permit) …”. H.H.J. Lodge’s ruling 48. On the submissions made to him, H.H.J. Lodge reached these conclusions: “5.5 The Crown submit that the requirements in Paragraph 3 [of Schedule 2] operate in such a way that if the specific conditions are not met, the premises ceases to be an exempt facility. Once the premises cease to be an exempt facility, they need a permit. If they have no permit, an offence is committed. The Crown say that those duties set out in paragraphs 6-8 dealing with registration and the maintenance of a Register are administrative regulations that do not affect the core proposition that once the terms of the exemption are breached, the facility ceases to be an exempt operation. 5.6 I reject that submission. Looking at paragraphs 6 to 8, they create the mechanism for Registration and maintaining a Register which determines whether a facility is exempt or not. I was initially concerned by paragraph 8(1)(b). Paragraph 8(1) reads “The duty to maintain a register … includes a duty to remove an entry from the register if […] (b) the facility ceases to be an exempt facility. This might suggest that the duty to remove [is] consequent upon the premises having become an exempt facility, rather than being the act which [causes] them to be an exempt facility. 5.7 However in my judgment such an interpretation is incorrect. It would make the management of the Regulations uncertain and impractical. One only needs to look at the facts of this case to see the difficulties the Crown’s interpretation would cause. On each visit the wood waste exceeded the 500 tonnes. Had on each of those visits that fact caused the premises to have ceased to be an exempt facility, the Agency would have a duty to remove the Company from the Register. The company would then be required to make a further application to go back onto the Register under paragraph 6. On further visits that cycle would be repeated. 5.8 In my judgment, there is, as the defence argue, the need for certainty as to the state of the facility. The agency police the situation. They give warnings. They take action and they have the eventual sanction of deregistration. If one looks at the letter at exhibit DIJ/1 … , this is precisely what the Agency sought to do. They indicate that the Company is no longer operating an exempt facility, and the failure to bring the waste within the required limits would cause the Agency to exercise its duty to deregister. 5.9 … [It] is common ground that the premises were either a Regulated Facility or an Exempt Facility. It is only if the premises are regulated that a permit is required. It is only if the premises are operated otherwise than in accordance with the permit that an offence is committed. In my judgment for the indictment period, the premises remained an Exempt Facility. As such no permit was required and so no offence was committed. In those circumstances, the application to dismiss is granted. 5.10 I am fortified in my decision by the concession properly made by the defence in respect of the potential offences under s.33 of the Environmental Protection Act 1990. This case has a background of problems caused to adjoining premises and the people thereon by reason of the treatment of excess amounts of waste. There are in addition to the regulatory offences, offences which are capable of covering the allegation of treating waste in a manner which is likely to be harmful to others. The regulatory offences are not the only options which were available to the Agency. 5.11 The application to dismiss succeeds. …”. Spencer J.’s judgment 49. Spencer J. disagreed with H.H.J. Lodge’s interpretation of the 2010 regulations. He rejected a submission made on behalf of Hennessy that practical difficulties would flow from any other construction; that it was easy to envisage a situation in which the quantity of wood fluctuated above and below the permitted 500 tonnes; that it could not be right that an operation would fall in and out of being an “exempt facility”, leaving the operator at risk of prosecution; and that, in accordance with the principle of “legal certainty”, the register should be capable of being relied upon as an accurate record of the status of the registration. The answer to that submission, in Spencer J.’s view, was that “this position is no different from that of the holder of an environmental permit for a regulated facility, where the conditions of the permit will typically state the maximum volume of material which is to be stored or processed”. It was “true that the status of the operator as a permit holder would not be affected, and the operation would remain a regulated facility, but the liability to prosecution would depend on just the same factual question, i.e. whether from day to day the condition has been breached” (paragraph 27 of the judgment). 50. A further argument put to Spencer J. was that a different construction from that favoured by H.H.J. Lodge would produce difficulties for third parties dealing with such a waste operation, who could be criminally liable for breach of the “duty of care”, imposed by section 34 of the 1990 Act, to prevent any contravention of the legislation. The third party, it was submitted, might deliver a further quantity of wood to the operator when the quantity of waste permitted by the T6 exemption had already been exceeded, though on inspection of the register he had seen it was still an “exempt facility”. Spencer J. observed that the duty of care under section 34 was only to “take all such measures as are reasonable in the circumstances”, and that “[matters] of the kind raised would be relevant to reasonableness and evaluated on their merits” (paragraph 28). 51. Spencer J.’s main conclusions were these (in paragraphs 32 to 34 of his judgment): “32. The nub of the matter, for the judge, was whether the words of paragraph 8(1)(b) of schedule 2, imposing a duty to remove an entry to the register if “the facility ceases to be an exempt facility”, mean that it is the act of removing the entry which causes the facility to cease to be an exempt facility, or whether the removal is merely confirmation that the facility has already ceased to be an exempt facility. 33. The crucial part of the judge’s ruling, at paragraph 5.6, … is his conclusion: “Looking at paragraphs 6-8, they create the mechanism for registration and maintaining a Register which determines whether the facility is exempt or not.” Thus the judge must have concluded that it is only if and when the entry is removed from the Register that the facility ceases to be exempt. That, with respect, is to ignore the plain words of Regulation 5, for it is that provision which defines and determines whether a facility is exempt or not. Regulation 5 states unequivocally that a waste operation can only be an “exempt waste operation”, and thus an “exempt facility”, if it meets the requirements of paragraph 3(1) of Schedule 2. If it does not meet those requirements it cannot be an “exempt facility”. Registration is only one of the three requirements. A waste operation cannot be an “exempt facility” unless it is registered, but if one or other of the two remaining requirements is not met, the fact of registration cannot make it exempt when Regulation 5 says in terms that it cannot be exempt. 34. In rejecting the prosecution’s argument the judge must have concluded that the wording of paragraph 8(1)(b), imposing a duty to remove an entry from the register if “the facility ceases to be an exempt facility”, can be construed as making the act of removal from the register the event which causes the facility to cease to be an “exempt facility”. I can see no justification for that conclusion. The duty to remove an entry cannot arise unless the facility has already ceased to be an “exempt facility”. The words are not capable of bearing the interpretation that it is the act of removal itself which causes the facility to cease to be an “exempt facility”. Regulation 5, and Regulation 5 alone, determines whether at any given time the operation is or is not an “exempt facility”.” 52. Rejecting a submission that there was a material distinction between the use of the terms “exempt waste operation” and “exempt facility” in regulation 5 and the registration provisions in Schedule 2, and that this lent support to H.H.J. Lodge’s conclusion, Spencer J. said (in paragraph 35) “[the] structure and interrelation of the definitions is quite clear”, and that “an “exempt waste operation” is simply one species of “exempt facility”, along with an “exempt water discharge activity” or an “exempt ground water activity””. Regulation 5(1), in his view “could not be clearer in this regard”. 53. As for the misgivings expressed by H.H.J. Lodge about the practical consequences of the interpretation contended for by the Environment Agency, Spencer J. said (in paragraphs 36 to 38): “36. The judge was understandably concerned about the practicalities of registration and de-registration in the event of an operation ceasing to be an “exempt facility”: see paragraph 5.7 of his ruling. He could not accept that on each inspection visit, if it was found that the 500 tonne limit was exceeded, there would be a duty to remove the company from the Register, only for the company to make a further application to go back onto the register, with the prospect of the cycle being repeated endlessly. Although I need not decide the point, it may be that there is some discretion on the part of the Agency in deciding at what stage to fulfil its duty to remove an entry from the register. Paragraph 8(1) does not, for example, impose a duty “forthwith” to remove an entry if any of the events in sub-paragraphs (a), (b) or (c) occurs (including the facility ceasing to be an “exempt facility”). This is to be contrasted with paragraph 8(2) which imposes a duty on the Agency to notify the registered person “without delay” if it removes an entry from the register. This broader discretion may provide the answer to the practical anomaly, as the judge saw it, of repeated de-registering and re-registering. 37. What is critical, however, is that the scheme of de-registering, and its practical working, cannot compel an interpretation of paragraph 8(1)(b) (“the facility ceases to be an exempt facility”) which makes the act of removal from the register the touchstone for determining whether the operation meets the requirements of paragraph 3(1) so as to remain an “exempt facility”, as defined in Regulation 5. 38. Furthermore, although paragraph 15 of Schedule 2 imposes a duty on the Agency to carry out “appropriate periodic inspections”, the frequency of inspections will be governed to a degree by resources and budgetary constraints. It must follow that, after registration, there could well be a period of several weeks or months between inspections. If during such an intervening period the 500 tonne limit has been flagrantly exceeded, and that can be clearly demonstrated, it would be strange indeed if no regulatory offence had been committed simply because the company remained on the register. If such an interpretation were correct, it would mean that activity which Regulation 5 (via Regulations 12 and 38) clearly proscribes as criminal would be exempt from prosecution for as long as the Agency remained ignorant of the true state of affairs and thus could have taken no steps to de-register the company.” 54. In support of the proposition that an offence will be committed unless all three requirements are met – registration of an exemption, compliance with conditions of the exemption, and consistency with the objectives of the Waste Framework Directive – counsel for the Environment Agency had relied on two authorities concerning the previous legislative scheme, and in particular the provisions of section 33(1)(a) and (b) of the 1990 Act, which prohibited the deposit, storing and disposal of controlled waste except in accordance with a waste management licence, and regulation 17(1) of the Waste Management Licensing Regulations 1994. The two authorities – neither of which appears to have been cited to H.H.J. Lodge – were the decision of the Court of Appeal in O’Grady Plant and Haulage Ltd. v London Borough of Tower Hamlets Council [2011] EWCA Crim 1339 and the decision of the Divisional Court in Environment Agency v Stanford [1999] Env. L.R. 286. Having acknowledged that neither of those cases was of direct relevance to the issue he had to decide, Spencer J. nevertheless found in them “broad support for the proposition that it has always been the scheme of the relevant legislation that the fact of registration of an exemption will not afford protection from prosecution for a regulatory offence unless the requirements of the exemption are also complied with” (paragraph 44 of the judgment). 55. Spencer J. saw no force in the argument that there were several other offences for which the company might have been prosecuted instead of an offence under regulation 12, including an offence under section 33(1)(c) of the 1990 Act – to which H.H.J. Lodge had referred in paragraph 5.10 of his ruling. The fact that those other remedies exist could not affect the proper construction of the 2010 regulations (paragraph 49). 56. In Spencer J.’s view, therefore, the error made by H.H.J. Lodge was to think that the mechanism for registration and maintaining a register is what determines whether a facility is exempt or not, rather than “to concentrate on the all important words of Regulation 5 and paragraph 3 of Schedule 2 which make it crystal clear that unless all the requirements of paragraph 3 are met, the operation cannot be an “exempt waste operation” and thus cannot be an “exempt facility”. It was, as he put it, “a fundamental error of law … to conclude that the operation remained an “exempt facility” throughout the period of registration, even if the other requirements of paragraph 3 of Schedule 2 were not met” (paragraph 53). 57. The suggestion that the Environment Agency had “in some way condoned the offending” was, in Spencer J.’s view, unfounded. As he said, “the reality … is that [it] repeatedly attempted to bring the company into compliance, which is the standard method of enforcement”, and that “[when] that failed, there was no reason … why the alleged breaches of the conditions of the exemption should not have been prosecuted in the usual way” (paragraph 64). Was the company’s operation an “exempt facility”? 58. Both Mustafa and Breslin contend that they were wrongly convicted as a consequence of a misdirection by H.H.J. Bate on the law relating to the offence. Both contend, in effect, that the judge, constrained as he was by the reasoning of Spencer J. in his judgment, misled the jury on the question of whether the company’s operation at the site was an “exempt facility”. The submissions made to us on behalf of Mustafa by Mr Andrew Thomas Q.C., who did not appear in the court below, reflected the argument that succeeded before H.H.J. Lodge but failed before Spencer J.. They were adopted Ms Samantha Riggs for Breslin, who did appear below. 59. Mr Thomas pointed to the company’s co-operation with the Environment Agency both before and during the indictment period. After Mr Sawar’s visits to the site in early September 2013, the site was brought back into compliance with the exemption. In his evidence at trial Mr Sawar acknowledged that he had encouraged the continued shredding of waste to ensure that the amount of it on the site was brought within the 500 tonnes limit. Thus, Mr Thomas submitted, the Environment Agency was at that stage continuing to treat the operation as an “exempt facility”. Although the CAR-E forms recorded a breach of the T6 exemption, they did not indicate that the exemption had ceased to have effect. The company had complied with the request to shred, and by the time of Mr Sawar’s visit on 30 October 2013 the operation complied with the exemption. When Mr Sawar went to the site again on 5 December 2013, though he considered the amount of waste wood to be significantly in excess of the 500-tonne limit, he did not instruct the company to cease its operation but again encouraged it to continue treating the wood. Not until 10 February 2014 did the Environment Agency send the company a letter stating that it no longer considered the company was operating an “exempt facility”, and warning that its failure to reduce the waste on the site to less than 500 tonnes would lead to de-registration. On 24 February 2014, the company told the Environment Agency that it would be going into liquidation. And it was only after the Environment Agency sent its letter of 6 March 2014, that the deregistration process ensued. 60. Mr Thomas also took us to some of the communications between officers of the Environment Agency in March 2014 when de-registration was being considered. In an email sent to Mr Jennings and Ms Sawar on 13 March 2014, Ms Nnamdi Ekebuisi, a Customer Service Advisor in the Waste Exemptions team at the National Customers Contact Centre, said that she had “actioned [their] request to de-register EPR/JH0516AA at [Dover’s] Corner Industrial Estate”, and that “[as] of today exemptions under this reference at this site are no longer effective”. Later on the same day, Mr Jennings sent an email to officers in the Environmental Crime Team requesting that the site be added to “the Illegal Waste Sites Register”, and stating that “[the] T6 exemption for this site has been deregistered and the ca 4,000 tonnes of wood left [on] the site is deposited illegally”. 61. That history and correspondence, Mr Thomas suggested, was consistent with the conclusion that before de-registration the operation was not illegal, and that the company could lawfully operate under the “T6 exemption” as an “exempt facility”. 62. Mr Thomas’s main submission, however, is quite simple. Under the legislative scheme, he argued, an exemption does not cease to be effective until it is removed from the public register. Throughout the period of the registration, and despite any failure to meet the other requirements imposed by paragraph 3 of Schedule 2 to the 2010 regulations, the operation remained an “exempt waste operation” and thus an “exempt facility”. Until de-registration, this would continue to be its status, and an environmental permit would not be required. This understanding of the legislative provisions, Mr Thomas submitted, is consistent with the principle of legal certainty. It cannot be right that the Environment Agency could write to the company in February 2014 asserting that the storage of waste wood on the site at various times in 2013 was unlawful, having in the meantime sanctioned the processing of that waste to bring the operation back into compliance with the “T6 exemption”, and then proceed to prosecute under regulations 12 and 38. 63. If Spencer J.’s construction of the legislative provisions was right, Mr Thomas submitted, the practical difficulties highlighted by H.H.J Lodge would arise. An operation might then fall in and out of being an “exempt facility” – as was so in this case – and the risk of prosecution would arise intermittently as the quantity of the waste on the site fluctuated, particularly if that was in dispute. This was inimical to “legal certainty”, which is an important protection not only for the operator but also for third parties, and the public. The register should be capable of being relied upon as an accurate record of the status of the operation (see the decision of this court in R. v Walker & Sons (Hauliers) Ltd. [2014] EWCA Crim 100). The process as a whole would be undermined if the public register showed illegal waste sites as “exempt [facilities]”. 64. The answer to this point was not, submitted Mr Thomas, the one given by Spencer J. in paragraph 27 of his judgment, which ignores the distinction between a permitted waste operation and an exempt waste operation. If a condition on an environmental permit is breached, the operator can be charged with an offence under regulation 38(2) – failing to comply with or contravening an environmental permit condition. In those circumstances the environmental permit still subsists. There is no equivalent offence of failing to comply with an exemption condition or limit. The mere fact that the operator is in breach of an exemption does not mean that the operation ceases to be an “exempt facility” and becomes an illegal site. It remains an “exempt facility”, albeit out of compliance. The Environment Agency can then take steps to bring it into compliance – such as by serving a notice under section 59 of the 1990 Act requiring excess waste to be removed from the site. The exempt waste operation does not itself automatically become illegal. It only becomes illegal once the exemption has been de-registered and it is thus no longer an “exempt facility”. Until then, the exemption survives. And unless the positive step of de-registration is taken, it will continue to survive. This “purposive construction” of the provisions, said Mr Thomas, is consistent with “legal certainty”. 65. In this case, Mr Thomas contended, during the period in the indictment the Environment Agency could have brought a charge under section 33(1)(c) – treating, keeping or disposing of controlled waste in a manner likely to cause pollution of the environment or harm to human health; or it could have served a notice under section 59; or it could have served a restriction notice under section 109A of the Environment Act 1995, preventing the further reception of waste. After de-registration, a charge could have been brought under section 33(1)(b) – keeping controlled waste without a permit, or under regulations 12 and 38 – operating a regulated facility without a permit. 66. Mr Thomas also criticized Spencer J.’s conclusion on the “duty of care” in paragraph 28 of his judgment. By contrast with the “due diligence” provision in section 33(7) of the 1990 Act, there is no corresponding defence under the 2010 regulations for a person charged with an offence of knowingly causing or knowingly permitting a contravention of regulation 12. The offence is one of strict liability. 67. The authorities relied on by the Environment Agency – O’Grady , Stanford and also Environment Agency v R. Newcomb & Sons Ltd. and another [2002] EWHC 2095 (Admin) – were all, said Mr Thomas, distinguishable from this case. They dealt with a different legislative scheme. And in all of them, the activity in question was not capable of complying with the relevant regime. Here it was. 68. We cannot accept Mr Thomas’s and Miss Riggs’s argument. The central proposition in it, that an “exempt facility” does not cease to be exempt until de-registration, is in our view mistaken. Spencer J.’s reasoning was, we think, sound and his conclusions correct. His interpretation of the 2010 regulations was accurate. As Mr Austin Stoton submitted for the Environment Agency, on the true construction of the relevant provisions, the consequence of any breach of the three requirements of the T6 exemption was that the company’s operation was no longer an “exempt waste operation”, and ceased, upon that breach, to be an “exempt facility”. At that point it could only be a “regulated facility”, for which no environmental permit had been granted. 69. In this case, to make good the charge in the indictment, the Environment Agency had to prove that, in the relevant period, the company was operating a “regulated facility” rather than an “exempt facility”. If at any time during that period, the operation was not an “exempt facility” the company committed the alleged offence. 70. On a straightforward interpretation of the legislative provisions, in our view, a waste operation will only be an “exempt facility” if it fully meets the requirements of paragraph 3(1) of Schedule 2. If it does not meet those requirements in full, it cannot be an “exempt facility”, and it must be a “regulated facility”; there is no other status it can then have. And if, as a “regulated facility”, it is operated without an environmental permit, there is a breach of regulation 12, and an offence under regulation 38 has been committed. That, it seems to us, is this case. 71. The “requirements” that have to be met for an operation to be an “exempt waste operation”, and thus an “exempt facility”, are clearly set out in paragraph 3(1) of Schedule 2. There are three of them: first, that the operation satisfies “the general and specific conditions” specified in Part 1 of Schedule 3 for the relevant description of the operation (paragraph 3(1)(a); and chapter 2, section 1, paragraph 3 and paragraph 6(3) of Schedule 3); second, that it is registered (paragraph 3(1)(b) of Schedule 2); and third, that the type and quantity of waste, and method of disposal or recovery, are consistent with the relevant objectives of the Waste Framework Directive – that it does not endanger human health or harm the environment (paragraph 3(1)(c) of Schedule 2). 72. Those three requirements are mandatory, and cumulative. None of them is said to be optional or discretionary. None of them is said to override or displace the other two. They must all be satisfied. If any of them is not met, or ceases to be met, the operation cannot be an “exempt waste operation”, and thus cannot be an “exempt facility” (regulation 5), but can only be a “regulated facility” (regulation 8). 73. The provisions of paragraphs 6 and 7 of Schedule 2 for the registration of a facility as an “exempt facility”, and of paragraph 8 for the de-registration of a facility when it “ceases to be an exempt facility”, do not indicate a different understanding of the threefold requirements of paragraph 3(1) of Schedule 2 and the effect of regulation 5, which requires those three requirements to be met if a facility is to be an “exempt facility”. On the contrary, they reinforce that understanding. 74. Registration of a facility under paragraphs 6 and 7 does not mean that the operation has been approved by the Environment Agency or that it will be regarded as an “exempt facility” while the entry remains on the register, regardless of its compliance with the requirements in paragraph 3(1) of Schedule 2. 75. De-registration under paragraph 8 would of course in itself have the effect of rendering the facility no longer an “exempt facility”, because it would then not satisfy the second requirement in paragraph 3(1) – the requirement of registration (paragraph 3(1)(b)). But that is not the only circumstance in which a facility “ceases to be an exempt facility”. It can also cease to be an “exempt facility” by failing to comply with one or both of the other two requirements, in paragraph 3(1)(a) and (c). The fact that an entry for the facility remains on the register does not, on its own, signify that it remains an “exempt facility” even though the operation is, in fact, in default on either of the other two requirements. Registration does not, of itself, confer continued status as an “exempt facility”, nor does it bestow immunity from the consequences of its ceasing to be an “exempt facility”. It does not afford protection from prosecution, unless the other requirements of the exemption are complied with. That is not what the provisions state, or imply. And we see no justification for reading into the legislative scheme provisions that are not there. 76. Crucially in our view, as Spencer J. observed (in paragraph 33 of his judgment), it is regulation 5 that “defines and determines whether a facility is exempt or not”. Spencer J. was also right to say (in paragraph 34) that the duty in paragraph 8(1)(b) to remove an entry from the register cannot itself arise unless the facility has already ceased to be an “exempt facility” (paragraph 8(1)(b)). That provision cannot mean that it is the act of removal from the register itself that causes the facility to cease to be an “exempt facility”. Rather, it plainly means that the operation “ceases to be” an “exempt facility” before, not after, the duty to de-register arises. As Spencer J. went on to say (ibid.) “[regulation] 5, and [regulation] 5 alone, determines whether at any given time the operation is or is not an “exempt facility””. We agree. 77. This understanding of the meaning and effect of the provisions of paragraph 3 of Schedule 2 to the 2010 regulations seems to align well with the analogous case law on the previous legislative regime, under section 33 of the 1990 Act and regulation 17(1) of the 1994 regulations. The legislative purpose is essentially the same. And the relevant conclusions are, we think, strongly persuasive here (see the judgment of the court, given by Pitchford L.J., in O’Grady , at paragraphs 23 to 28; the judgment of Lord Bingham C.J. in Stanford , on pp.288 to 290; and the judgment of Newman J. in Newcomb , at paragraphs 10 to 18). In Stanford Lord Bingham C.J. said this (on p.292): “It is however plain that an exemption, even if registered, does not provide protection from prosecution if the activity carried on is not within the terms of the exemption and does not comply with its terms.” 78. We are not dissuaded from our interpretation of the legislative provisions by the various submissions made by Mr Thomas and Ms Riggs on the general theme of “legal certainty”, on the asserted practical difficulties that might be generated if de-registration was not the sole determinant of an operation’s continued status as an “exempt facility”, and on the existence of other powers such as those in section 33 of the 1990 Act. Those submissions cannot alter the terms in which the legislature framed the relevant provisions of 2010 regulations. They do not disturb Spencer J.’s analysis, which we endorse. 79. As Mr Stoton submitted, the concept of “legal certainty” here is enshrined in the express requirements that have to be met if an operation is to be an “exempt waste operation”, and thus an “exempt facility”. Whether an operation is an “exempt facility” depends on the operator having registered the exemption and operating within its constraints. It is a matter of fact whether those requirements are satisfied at any given time. If they are not met, then for the duration of their not being met the operation has ceased to be, and is not, an “exempt facility”. 80. The position here is similar to that of the holder of an environmental permit for a “regulated facility”, the conditions of which state the maximum volume of material to be stored or processed on the site. Alleged breaches of such conditions may be intermittent, or fluctuating; and they may be contentious. If proved, they do not deprive the operator of his status as the holder of an environmental permit, or the operation of its status as a “regulated facility”. But liability to prosecution, as in the case of an offence under regulation 38(1), will depend on the particular facts. Where a long-standing or persistent breach of an exemption limit has occurred, the Environment Agency is not obliged by any provision of the legislative scheme to refrain from enforcement or from launching a prosecution if and when it judges that to be appropriate. It does not have to wait until the exemption has been removed from the register. Otherwise, as Mr Stoton submitted, an operator could offend with impunity until de-registration had taken place. Whether and how the Environment Agency proceeds in a particular case is a matter of discretion. 81. In this case, the prosecution was well founded. It was not vitiated by any misconception or misapplication of the legislative provisions. The jury were properly directed on the law relating to the offence. The essential facts are not, now at least, materially in dispute. As for the first requirement in paragraph 3(1) of Schedule 2 – that the operation satisfies “the general and specific conditions” – the Environment Agency’s case was this was not so, because during the relevant period, it was discovered that quantities of waste wood well in excess of 500 tonnes were present on the site throughout the majority of the indictment period. The second of the three requirements – that the waste operation must be registered – was satisfied, because the company’s operation was duly registered as exempt on 21 January 2013, and it remained registered throughout the period to which the indictment related. As for the third requirement, it was the Environment Agency’s case that the company’s operation was not conducted in a way that was consistent with the need to achieve the objectives mentioned in article 13 of the Waste Framework Directive. In particular, the operation excited complaints from neighbouring occupiers on the Dover’s Corner Industrial Estate about nuisance caused by wood dust emanating from the site. 82. On this ground, therefore, the appeals must fail. Did the judge err in not giving a good character direction for Mustafa? 83. Permission to add a fresh ground of appeal in Mustafa’s case, which was not put before the single judge, was sought by a notice dated 9 December 2019. It is submitted by Mr Thomas that H.H.J. Bate erred in law in his summing-up by not giving a good character direction for Mustafa, who, it is said, was entitled to be treated as a man of good character. In the alternative, it is submitted that trial counsel failed to ensure that the judge gave such a direction. Either way, it is submitted that Mustafa did not receive the benefit of a direction to which he was entitled and that his conviction is unsafe as a result. 84. Mustafa had two findings of guilt for burglary in 1974, when he would have been 13 or 14 years old, and one conviction for possessing an offensive weapon in 1981, when he would have been 20. 85. Those acting for him at trial asked for confirmation that he had no previous warnings from the Environment Agency. A response to that request was sent by email on the 22 October 2019 with two attachments, one of which was a witness statement of Gary Yardley, an Environmental Crime Officer employed by the Environment Agency, dated 11 February 2014. He explained that on 31 January 2014 he had gone to Michelins Farm, Rayleigh, to assess compliance with a court order that required Roger Phipps to remove all waste from the farm by midday on the 30 January 2014. There were quantities of waste over most of the site. The other attachment was a warning letter dated 22 November 2013 from the Environment Agency to TLM Management Ltd. “(c/o Company Director and/or Company Secretary)”, which referred to a suspected offence by TLM Management Ltd. on or before 13 November 2013, namely the burning of waste without an environmental permit or exemption at Michelins Farm, Rayleigh, contrary to regulations 12 and 38(1)(b) of the 2010 regulations. Mustafa was the sole director and company secretary of TLM Management Ltd. at the time. And there is no dispute that he was aware of the contents of that letter. The owner and operator of the site was an independent operator. As a result of an earlier prosecution by the Environment Agency, TLM Management Ltd. was one of several companies engaged to remove waste from the site. 86. It is common ground that a warning letter of this kind does not itself constitute any finding or admission of guilt and could not therefore impugn the character of Mustafa – any more than could the penalty notice for disorder in R. v Hamer [2010] EWCA Crim 2053 or the harassment warning letter in R. v Dalby [2012] EWCA Crim 701 . 87. Privilege was waived by Mustafa when the application to vary the grounds was made. Trial counsel, Mr Rupert Wheeler, was invited to comment on the new ground, which he did on 8 January 2020. 88. In an email dated 27 September 2019 Mr Wheeler had explained that before speeches, he invited the judge to indicate whether, in light of the findings of guilt in 1974 and the conviction in 1981 and the warning letter of 22 November 2013, he would be able to give a modified good character direction. Mr Wheeler said in this email that the judge’s ruling was that he could not give such a direction where Mustafa and his company had a “criminal [or] regulatory history”. As will be seen, it is now accepted that this overstates the position. Mr Wheeler continued: “[Mustafa] and I had to decide whether to adduce the bad character ourselves and seek a modified direction or simply leave these matters out of evidence and not seek any direction on character either way. We took the view that it would be better to say nothing. Though inevitably the Judge would have to omit [Mustafa] from the [character] direction given in respect of the other defendants, on balance we felt that this would be better than drawing attention to potentially adverse evidence of bad character.” 89. In a further email, dated 2 October 2019, Mr Wheeler said: “During the exchange, the Judge was apprised of the nature of the letter and of the previous convictions. My recollection is that the Judge took the view that both the letter and the convictions undermined his ability to give a good character direction. There were no submissions on piercing the corporate veil, though my recollection is that the Court did not raise this as a potential impediment to the letter going in. Neither the prosecution nor defence sought to adduce the letter and so the matter did not arise… [Mustafa] and I took the tactical decision not to put the letter in. There was an obvious danger that had we sought a ruling on whether the veil could be pierced, the Judge might have ruled that it could. That would have given the prosecution leave to seek to adduce it as bad character evidence. They may well have been successful in that application on the law. We took the view that it would be better to leave it alone rather than risk it going in through this route. The letter was addressed to the Company Director of TLM, not simply TLM itself. I accept that there is a distinction between the company committing the offence and the individual director doing so. However, in a company the size of TLM with [the Appellant] at its head, the Court could well have concluded that the reality of the circumstances [was] such that the veil could be lawfully pierced. Furthermore, the obvious inference was that he would have had at least some knowledge of what TLM were doing. Tactically, the risk posed by it going in weighed heavier in the balance than the omission of a modified good character direction (which the Judge had by no means agreed to give). My recollection is that I gave advice in line with the above. We spoke of the advantages and disadvantages of seeking to push the issue, and took a tactical decision that it would be better not to risk it going in.” 90. Full transcripts of the proceedings from the close of the prosecution case to the start of speeches have been obtained. They do not reveal such an exchange with the judge. In an email dated 5 December 2019, Mr Wheeler said: “My clear recollection is that it was, as I remember, the Judge saying that he would be troubled about giving a modified good character direction, given [Mustafa’s] old previous for burglary and the letter. It was a short exchange and would have been made around the time the letter was served.” 91. On 8 January 2020 Mr Wheeler wrote to the Registrar of Criminal Appeals, stating: “My recollection is as follows: [Mustafa] had two previous convictions from 1975 and one from 1981, with other offences taken into consideration. Following a review as to whether any defendant had any Environment Agency warnings against their name, the prosecution disclosed that TLM Management had been warned on the 22 nd November 2013 about a suspected offence of burning waste at a site on or before 13 th November 2013. The 13 th November 2013 was within the indictment period. Mr Mustafa was sole director and company secretary of TLM Management at that time. The Warning Letter had been addressed to the company director and the company secretary. At some stage prior to speeches I sought an indication from the Learned Judge as to whether he would be willing to give a modified good character direction in the circumstances. I recall the Judge stating that he would be troubled by doing this. This was not a request for a formal ruling. I am not clear precisely when this short exchange took place, but I remain certain that it did. The prosecution did not seek to adduce any evidence of bad character against Mr Mustafa at that stage. However, they opposed the request for a good character direction on the basis that the Warning Letter was relevant bad character evidence against him. After discussing the matter with Mr Mustafa, we came to the conclusion that a good character direction should not be formally sought. This was for the following reasons: In order to seek the good character direction formally, it would have been necessary for the Learned Judge to have ruled on the probative value of the Warning Letter. If the judge ruled that it was relevant evidence of bad character, then clearly no good character direction would have been available. Had he ruled that it was not, then I accept that I could have proceeded to seek the modified good character direction. In considering whether to seek the ruling, it was my view that there were risks to each route. If the Learned Judge accepted the prosecution’s submission that the Warning Letter was relevant bad character evidence against Mr Mustafa, then it would have been open to them to apply to put the letter in as bad character evidence. If it had ultimately been adduced in that way, then the negative effect on the defence would have been severe. On the other hand, if I did not take the first step of seeking a formal ruling on the status of the Warning Letter, then I would be restricted from ultimately requesting the good character direction. This meant the jury would hear nothing about Mr Mustafa’s character, in contrast to his co-defendants. I therefore weighed the two options and, with the agreement of Mr Mustafa, took a tactical decision to take the application no further. It was my view at the time that the danger of obtaining an adverse ruling on the status of the letter (effectively opening the door for the prosecution to seek to adduce it), outweighed the risk created by omitting any reference to Mr Mustafa’s character in the summing up. My view remains that if the letter had been adduced as bad character evidence, it would have been far more detrimental than the omission of any reference to his character in the summing up. I acknowledge the force of the Appellant’s submission [now] that, had the ruling been sought, the correct decision would have been for the Learned Judge to conclude that it was not relevant bad character evidence. However, I also note that the prosecution continues to submit that the letter does have probative force. This, in my view, highlights that it was far from obvious as to what the Learned Judge would have done had I sought the ruling. I was also guided by the informal indication made by the judge in the short exchange. It was a difficult tactical decision in which, following discussion with Mr Mustafa, we decided to be conservative rather than take a risk that could have caused significant detriment to his defence.” 92. We do not know on what basis Mr Wheeler said that “the prosecution continues to submit that the letter [of 22 November 2013] does have probative force”. But in any event, as we have said, the agreed position now is that it does not. 93. Mr Thomas – who, as we have said, did not appear at trial – maintained that the judge was asked to indicate provisionally whether or not he would give a modified good character direction. No one has suggested, however, that the matter was ever put before the judge for a final ruling. 94. Mr Stoton, who did appear at trial, said in the addendum respondent’s notice that he indicated to Mr Wheeler that the prosecution was “neutral” on the question of a “ Vye direction”. He told us that Mr Wheeler asked the judge for guidance. Mr Wheeler made the judge aware that there were previous convictions but not what they were, and mentioned to him the existence of the warning letter. It was a very short exchange, lasting only a minute or so. The facts underlying the warning letter were not looked at. In the addendum respondent’s notice, Mr Stoton said that the judge indicated he would not be likely to give a modified direction. If the matter had been pursued further by the defence, the prosecution might have wanted to explore the underlying facts. 95. We are satisfied that the matter was never considered before the judge in sufficient detail for anyone to think he had given a definitive ruling. No evidence was put before the jury about Mustafa’s character that required any direction from the judge. We must therefore approach the issue on the basis of the decision made by Mustafa in the light of discussion with his counsel. 96. We are satisfied that the decision not to pursue the question of Mustafa’s character further has the hallmarks of a tactical decision, and that it would not be right for us to go behind it at this distance in time. It is rarely easy, and here it certainly is not, to identify all the considerations that would have had a bearing on the decision made by the accused. Mustafa was in the best position to know what lay behind the warning letter that was sent to him, and how damaging, or not, any exploration of the underlying facts might be for him. What does seem clear, however, is that he made a tactical decision that nothing should be done to generate more detailed consideration of the position. He was entitled to take that view. In the event, he was convicted, but this does not mean that the decision he took was improperly taken or that he should now be allowed to re-visit it. 97. In the circumstances, in our view, it cannot properly be contended that the absence of a good character direction for Mustafa had any effect on the safety of his conviction. 98. We have been given an explanation for the delay in advancing this ground of appeal. Issues such as this inevitably become much harder to investigate after lengthy delays. Some of the delay that has occurred here is unsatisfactory. But if we had seen any merit in the argument put forward, we might have been able to overlook that. In this case, however, we do not think there is an arguable ground of appeal. We therefore refuse the application for an extension of time in which to apply for leave to advance this ground. Conclusion 99. For the reasons we have given, we dismiss Mustafa’s appeal and refuse Breslin’s applications.

2020_05_06-4893.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/597/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/597

2ff343841067b9b99b177000ef59dfdc6482d8e5bf728b0f73d482be5b15c9ce

[2017] EWCA Crim 1348

EWCA_Crim_1348

crown_court

Neutral Citation Number: [2017] EWCA Crim 1348 Case No: 201702778/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18 August 2017 B e f o r e : MR JUSTICE SWEENEY MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - R E G I N A v ERIK HADA - - - - - - - - - - - - - - - - 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 (Of

Neutral Citation Number: [2017] EWCA Crim 1348 Case No: 201702778/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18 August 2017 B e f o r e : MR JUSTICE SWEENEY MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - R E G I N A v ERIK HADA - - - - - - - - - - - - - - - - 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) 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. - - - - - - - - - - - - - - - - Mr R Jepson (Solicitor Advocate) appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE HOLROYDE: On 9th June 2017, in the Crown Court at Sheffield, this appellant was sentenced to a total term of six-and-a-half years' detention, under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 , for three offences of robbery and one offence of possessing an imitation firearm at the time of arrest for an offence. 2. He now appeals against his sentence by leave of the single judge. We are grateful to Mr Jepson for his written and oral submissions on the appellant's behalf. 3. It is necessary to set the present offending in its context. The appellant was born on 28th November 1999 and so is still under 18. Regrettably, he started offending at a young age, being convicted of comparatively minor offences when he was only 12. In May 2013 he was made subject to a youth referral order for two offences of robbery, committed shortly before and a few months after his 13th birthday. He made further court appearances in 2014. 4. The present offending began in November 2015. A few days before his 16th birthday he committed two offences of robbery, the first late on the night of 22nd November and the second into the early hours of the morning of 23rd November. Those offences were charged on counts 1 and 2 of indictment T20167351. In each case the appellant acted jointly with three others, all of whom were significantly older than him, being 18 or 19. 5. The victim of count 1 was making his way home from work at around 10.00 pm. One of the offenders approached him and asked for a cigarette. Others, including the appellant, then moved in and blocked the victim's departure. He was held from behind, put to the ground and punched and kicked. His bag, containing a few items of no great monetary value, was stolen. Unsurprisingly the victim was very frightened at the time and fearful about his regular need to leave his place of work and take the same route home late at night. 6. The victim of count 2 was a man aged 71. He was waiting at a bus station at around 1.30 am for a late night coach. He left the bus station to look for somewhere to relieve himself. He was then approached by the four offenders. They demanded his money, threatening to hurt him if he did not hand it over. He complied. The offenders took £130 from his wallet and his camera. He was in fear of being hurt and indicated in a statement that since this offence he had avoided places where he would not be amongst a large crowd. 7. The appellant and others were arrested on the following day, having been identified from CCTV footage. A long period then followed when the appellant was subject to police bail. He was not charged with those two offences until after he had committed the further offences on 25th May 2016, which became the subject of committal for sentence S20160659. 8. Again, the appellant was in company with three older companions. It seems that they spotted two young men in the street and noticed that a time came when one of those two was left alone. One of the other offenders gave his hood to the appellant to wear. Another passed to the appellant a BB gun. The appellant then approached the victim with the hood covering his head and a scarf around his face. He pulled out the gun, pointed it at the victim of the offence and said that he would kill him if he did not hand over his money and phone. The victim complied. 9. There was no victim impact statement from that young man. He did not wish to be further involved in the proceedings. 10. The appellant and others were arrested. Initially the appellant denied any knowledge of the offences. Within a short time however, having been shown the CCTV footage, he admitted that he was the robber with the gun. He said he had been told what to do by one of his older companions and had been required to hand over the proceeds of robbery to that person. 11. On 30th August 2016 the appellant appeared before the Youth Court for those later offences. He pleaded guilty and he was committed to the Crown Court for sentence. 12. On 20th September 2016 he came before the Crown Court charged on the indictment with the earlier offences. He was jointly charged with others. He pleaded guilty to count 1. At that stage he pleaded not guilty to count 2. The matter was adjourned for trial but soon thereafter the appellant pleaded guilty to count 2. 13. His sentencing was adjourned to await the trial of others. One of the adult co-accused was later convicted and sentenced to 6 years' imprisonment. Another absconded but was convicted in his absence, but so far as we are aware has not yet been sentenced. 14. This appellant was sentenced, as we have said, on 9th June 2017. That was more than 18 months after he had committed the earlier offences and more than a year after he had committed the later offences. There were before the court a pre-sentence report and other reports and letters offered in support of the appellant by a number of the officers who have the care of him at a detention centre. All this material before the court showed that a great deal had changed in the period since the commission of the offences. When he was first admitted to a secure training centre the appellant's educational attainments were assessed as equivalent to those of a boy of 10 or 11. But whilst in custody he has consistently done well with his education. He has consistently achieved full marks and he is now studying for his GCSEs. Whilst in custody he is said to have been exceptionally well behaved. Within a short time he was promoted to the highest level of privileges and he has maintained that status ever since. 15. In the assessment of those who have the care and custody of him he presents as quite a vulnerable young man. On one occasion he was the victim of a wholly unprovoked attack by other inmates. He is regarded as someone who, certainly when younger, was easily influenced. It is perhaps significant that his highly supportive parents have resolved to move the family home to a different area to try to keep the appellant away from undesirable influences. Finally, we should mention the very clear expressions of remorse which the appellant has put before the court. 16. In terms of the sentencing guidelines for robbery offences, committed by an adult, the learned judge assessed the earlier offences as falling within Category 2B. He assessed the later offence of robbery as lying on the cusp of categories 1A and 2A, on the basis of the drawing an inference that the victim of that third robbery must have suffered serious psychological harm when he was accosted by a masked stranger pointing a gun at him. 17. The judge rightly observed that the offending was so serious that only an immediate custodial sentence would suffice. Mr Jepson does not challenge that proposition at all. The learned judge referred to the need to observe the principle of totality. Again, Mr Jepson does not argue against that, and indeed emphasises the importance of that principle. 18. The learned judge then said this at page 1D of his sentencing remarks: "I reduce the starting point because of your age, but only by one-third because of your two previous robberies." The judge went on to allow full credit for the guilty pleas. 19. He imposed the following sentences of detention: count 1, 2 years; count 2, 18 months consecutive; count 3, 3 years consecutive. Thus he reached the total of six-and-a-half years' detention to which we have referred. He directed that 197 days, comprising time on remand and time subject to a qualifying curfew should count towards the total sentence. 20. In his grounds of appeal Mr Jepson accepts that, in terms of the adult guideline, the earlier two robberies were category 2B, with a starting point of 4 years' custody and a sentencing range from 3 to 6 years. However, he challenges the judge's assessment of the third robbery. Category 1A has an adult starting point of 8 years' custody and a range of 7 to 12 years. Category 2A has a starting point of 5 years and a range of 4 to 8. Thus the difference between the two is considerable. 21. Frightening though the incident must have been, Mr Jepson makes the simple submission that in the absence of any evidence at all from the victim of that offence the learned judge could not properly draw an inference that the victim must have suffered serious psychological harm, a factor relevant to placing the offence in category 1A. Mr Jepson goes on to submit that the learned judge was wrong to reduce what would have been the adult sentences by only one-third on the grounds of the appellant's young age. He points out that the appellant was 15 at the time of the first offences and sixteen-and-a-half at the time of the later offences. On that basis he argues that the reduction from adult sentencing levels should have been much nearer half rather than one-third. Finally, Mr Jepson submits that, stepping back, the total sentence was simply far too long. 22. We take the view that the learned judge here was faced with a difficult sentencing exercise. On the one hand, these were serious offences. They were very frightening street robberies, at night, of lone victims, two of whom were outnumbered by a gang of robbers and one of whom was threatened with what he thought was a real gun. In each case there was obvious planning. In each case the participants had to some extent masked or disguised their appearances. The later offences by this appellant were committed whilst he was on police bail for the earlier offences. 23. On the other hand, the appellant was very young. All the signs were that at the time of committing the offences he had been easily led and it was therefore significant that he was in the company of older offenders at the material times. Although he was the robber who approached the victim of the third offence with the imitation firearm the circumstances appear to have been that he was both directed and equipped by his older companions to do so whilst they stood off and waited for him to deliver the proceeds of crime to them. His immaturity at the time and his susceptibility to bad influences may be said to be apparent from the exceptional progress which he has made whilst in custody. 24. We have already mentioned the passage of time between the commission of the offences and the date of sentencing. We regard it as a significant proportion of a young life. All the signs are that since his remand into custody he has flourished and has shown clear indications that he is capable of turning his life around. 25. At the time of sentencing, the Sentencing Council's Definitive Guideline on Sentencing Children and Young People had very recently come into force. The statements of principle at the beginning of that guideline make the approach of the Sentencing Council very clear: "1.1 When sentencing children or young people (those aged under 18 at the date of the finding of guilt) a court must have regard to: • the principal aim of the youth justice system (to prevent offending by children and young people); and • the welfare of the child or young person. 1.2 While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour." 26. The publication by the Sentencing Council includes not only overarching principles relating to the sentencing of the young but also a specific guideline applicable to offences of robbery committed by those under 18. The guideline sets out various considerations relevant to the assessment of culpability and harm. It goes on to consider what approach should be taken if a sentencing court is driven to the conclusion that a custodial sentence is unavoidable. It says this at page 46: 27. "Where a custodial sentence is unavoidable the length of custody imposed must be the shortest commensurate with the seriousness of the offence. The court may want to consider the equivalent adult guideline in order to determine the appropriate length of the sentence. If considering the adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the appropriate adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. The individual factors relating to the offence and the child or young person are of the greatest importance and may present good reason to impose a sentence outside of this range." 28. We agree with the learned judge that in the circumstances of this case custody was unavoidable and it was therefore appropriate to consider what the sentences would have been for an adult offender. 29. However, it seems to us, with all respect to the learned judge, that he fell into error in conducting this difficult sentencing exercise. First, we do not think that he was entitled, in the absence of any relevant evidence at all, to find that serious psychological harm had been suffered by the victim of the third robbery. No doubt that young man had suffered some psychological harm, and it may be he suffered significant harm; but in our judgment, evidence would be needed to establish that the psychological harm reached a level which could properly be described as serious. 30. Secondly, although it was a matter very much in the judge's discretion, we are troubled by his decision to vary the reduction which would otherwise have been made by reason of age, because of the previous convictions. In so far as those previous convictions make the later offending more serious, that was an aggravating factor already taken into account in assessing the notional adult sentence. In the circumstances of this case, the previous convictions could not safely be used as any indication of criminal sophistication or maturity. Those offences of a 13-year-old might equally well reflect his immaturity and his susceptibility to peer pressure. In our judgment, Mr Jepson is correct in his submission that the appropriate reduction from the adult level of sentencing was of the order of one-half. 31. Next, we agree with the judge that the imposition of consecutive sentences was not wrong in principle. Totality is however a very important consideration here, particularly bearing in mind that the offences charged in count 1 and 2 of the indictment were committed but a few hours apart. 32. Although the judge proceeded by reference to the appropriate sentence for an adult, he did not spell out precisely what the appropriate adult sentences would have been. We infer however that he must have had in mind that for the commission of these offences in these circumstances by an adult the appropriate total sentence, after trial, would have been 15 years' imprisonment. We observe that such a total sentence would have been appealably high for an adult offender. 33. In our judgment, having regard to the Definitive Guideline to which we have referred, and having regard in particular to the very significant progress which has been made in this appellant's young life, the total sentence of six-and-a-half years' detention was too long and a significant reduction should be made. 34. In our judgment, the appropriate course to take is as follows. On count 2 of indictment T20167351, we quash the consecutive sentence of 18 months' detention and we substitute for it a concurrent sentence of 18 months' detention. As a result the total sentence is reduced from six-and-a-half years to 5 years. We leave all other aspects of the sentencing unaltered and for the avoidance of doubt we make it clear that the 197 days will continue to count towards the total sentence. To that extent the appeal succeeds. 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

2017_08_18-4052.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1348/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1348

79bd4caddc896fe72c03539b2a935b81f5c2d31bfb23717e2837fc3d404f3ef8

[2010] EWCA Crim 2740

EWCA_Crim_2740

crown_court

Case Nos: 2009/04542, /04693, /04719 and /04721 Neutral Citation Number: [2010] EWCA Crim 2740 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BRADFORD Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/11/2010 Before : LORD JUSTICE RICHARDS MR JUSTICE GRIFFITH WILLIAMS and HIS HONOUR JUDGE ROOK QC (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - Regina - v - (1) John Daniels (2) Anthony Paul Davies (3) Anth

Case Nos: 2009/04542, /04693, /04719 and /04721 Neutral Citation Number: [2010] EWCA Crim 2740 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BRADFORD Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/11/2010 Before : LORD JUSTICE RICHARDS MR JUSTICE GRIFFITH WILLIAMS and HIS HONOUR JUDGE ROOK QC (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - Regina - v - (1) John Daniels (2) Anthony Paul Davies (3) Anthony Vincent Neale (4) Darren Trevor Martin - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Peter Kelson QC and Danielle Cooper (instructed by the Registrar of Criminal Appeals) for Daniels, Davies and Neale Iain Goldrein QC (instructed by BH Mohamed Solicitors ) for Martin Tom Bayliss QC (instructed by the Crown Prosecution Service) for the Crown Hearing date : 20 October 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Richards : 1. Anthony Davies and Darren Martin appeal against their conviction on 5 August 2009, after a trial at Bradford Crown Court before Langstaff J and a jury, on counts of murder and conspiracy to rob. John Daniels and Anthony Neale appeal against their conviction, after the same trial, on the count of conspiracy to rob. Davies also appeals against sentence. A co-defendant, Sonny Stewart, had previously entered into an agreement pursuant to section 73 of the Serious Organised Crime and Police Act 2005 (“SOCPA”) under which he agreed to give assistance to the authorities. In accordance with that agreement he pleaded guilty to manslaughter and to conspiracy to rob, and he gave evidence for the Crown at the trial of the appellants. The central issue in the conviction appeals is whether it was an abuse of process for the case to proceed on that evidence and/or whether the evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 (“ PACE ”). 2. The victim was Edward (or Teddy) Simpson, whose body was found in the grounds of a disused nursing home at Shirley Manor, Bradford, on 2 August 2007. He was naked save for his underpants, trousers binding his ankles, and a top which was wrapped loosely around his neck. His hands were tied behind his back. The pathologist recorded some 56 separate external injuries to the body. They included a cut to the left ear which was consistent with it having been pulled by an instrument such as a wrench. The facial skeleton had been shattered by blows which had also caused underlying brain damage. The cartilages of the voice box had been broken, either by stamping or by compression. Both shoulder blades had been fractured. At least seven ribs had been fractured, also causing a lung to be punctured. The multiple injuries were the cause of death. It was likely that the deceased remained alive for between one and six hours after the injuries were inflicted. The brain injury would have led to unconsciousness and it was unlikely, though not impossible, that he regained consciousness. 3. A number of men were charged with the victim’s murder. In June 2008, shortly before their trial was due to commence, Stewart entered into the SOCPA agreement and entered guilty pleas as we have indicated. At the trial he gave evidence for the Crown. Dacosta Daniel, Errol Witter and Robert Cameron were convicted of murder and conspiracy to rob and were each sentenced to life imprisonment with a minimum term of 33 years. Mumtaz Ali was acquitted on both counts. The jury were unable to agree a verdict on either count in respect of Davies, Neale and Martin. 4. A second trial took place between June and August 2009. For Davies, Neale and Martin it was a re-trial. Tried with them was Daniels, who had been implicated by Stewart but too late for him to be charged and tried with the other defendants at the first trial. Stewart again gave evidence for the Crown. Davies and Martin were convicted on both counts and were each sentenced to life imprisonment, with a minimum term of 35 years in the case of Davies and of 24 years in the case of Martin. Neale and Daniels were acquitted of murder but convicted of conspiracy to rob, and were sentenced respectively to 12 years’ imprisonment and 13 years’ imprisonment. The evidence at the second trial 5. Stewart’s importance as a prosecution witness is shown by a summary of the evidence he gave at the second trial. We will start with that and will refer briefly to the main features of the other evidence at the trial, before examining Stewart’s SOCPA agreement, the circumstances surrounding it and the issues arising out of it. 6. Stewart gave evidence that he and Anthony (“Jigger”) Davies had been like cousins and had more or less grown up with each other. Stewart, Davies and Daniels had had two conversations together at Daniels’ house during which they formulated a plan to rob the deceased. The first of the conversations occurred about one week before 1 August 2007, soon after Daniels had been released from prison. Daniels was looking to raise some money and said that he had just “slapped a kid and taken 50 grand off him”. Daniels suggested that they find somebody worth robbing, and Davies enthusiastically supported the suggestion. Daniels and Davies were doing the talking. No specific target was identified during this first conversation. 7. Stewart felt that Davies and Daniels must have spoken together without him between the first and second conversations, as by the time of the second conversation they had narrowed the intended target to two people. Daniels said that he had taken the £50,000 from the deceased, who had owed him the money for protection, and that the deceased was worth robbing as he had a further couple of hundred thousand pounds at his house and was due to receive a shipment of drugs. Daniels thought that it would be quite easy to take the money from him. The decision was therefore taken to rob the deceased. 8. Daniels gave the impression that he wanted Davies to commit the robbery as Daniels himself was on an electronic tag. He said that the deceased was a “shiverer”, meaning that he would give up the money straightaway when confronted by intimidating looking men. He said that there would not be any need for violence. Davies told Stewart privately that he did not want to do the robbery and asked him whether he knew anyone from out of town who would want to do it. Stewart said that he did know someone. He phoned Neale, who said that he was not interested but that he could get someone who would be willing. 9. On 1 August Davies phoned Stewart at 16:00, asking him to find out whether Neale had found someone to do the robbery as it was on for that evening. At the time of the call Stewart was in his Renault Laguna together with the co-accused Ali and with a man called Dean Martin (to be distinguished from the defendant Darren Martin, to whom we refer simply as “Martin”). Davies said that he was on his way back to Bradford and told Stewart to “get it sorted”. Further calls from Davies followed, as Stewart did not immediately phone Neale. When he did phone Neale, he was told that Neale had found someone to do the robbery and that that person would phone Stewart within the next 20 minutes. The person who thereafter contacted him was Dacosta Daniel, who said to him, “I’m going to do this thing for you”, and stated that he would make his way over shortly. (Dacosta Daniel, Witter and Cameron were referred to as “the Leeds men” and were the three defendants convicted at the first trial.) 10. Stewart was picked up from his brother’s house by Ali. They drove together to a petrol station where they met Davies, and then on to another petrol station where they had a rendezvous with the Leeds men between 18:00 and 18:30. From there they drove in convoy: Stewart and Davies in a Ford Focus, the Leeds men in a white van, Ali in Stewart’s Laguna. They drove to Daniels’ house in Cutler Heights Lane where Davies had a quick conversation with the Leeds men before going into Daniels’ house for about five minutes. 11. Thereafter Stewart got a call to go to a restaurant called Akbar’s which was about five minutes away. He travelled to Akbar’s with Davies and Ali in the Laguna. The men from Leeds followed them and waited in a side street while they were at the restaurant. 12. After they left Akbar’s there was a series of phone calls between 19:11 and 19:16 to establish the whereabouts of Martin, who had been tasked with delivering a replica hand-gun for use in the robbery. After leaving Daniels’ house Davies had made a phone call to Martin and had said, “Bring the toy”. Stewart had known that a gun was to be involved since that afternoon at the latest. The handover of the gun took place in a side street called Broad Lane. Davies got out of the Laguna and directed Martin to pass the gun through the window of the van. Martin got out of his car and did as instructed. Stewart saw the handover with his own eyes. 13. Following the handover they drove past the deceased’s house in Sticker Lane. Davies, while on the phone to the Leeds men, pointed out the house from the car. They parked nearby. Davies got out of the car and said to the Leeds men that they knew to simply threaten the deceased and not to hit him. He also told them to take the CCTV video tape from the house and to phone when they were in the house. Stewart, Davies and Ali then all returned to Stewart’s house in Hope Lane. 14. While they were there, Stewart received a phone call from Dacosta Daniel who said that he was in the deceased’s house and asked where the money and video tape were. Stewart did not know, so he handed the phone over to Davies. Stewart understood from what he could hear of the conversation that the men were unable to find the tape, the drugs or the money. Davies eventually said that they were coming over to Sticker Lane. 15. They met up with the Leeds men in a side road just off Sticker Lane. Davies waved at them and indicated that they should follow. They eventually stopped and Witter informed Davies that they had found no money or drugs and that the deceased was in the back of the van. Davies told them to drive to Judy Woods. Davies phoned Martin and told him to bring a Transit van. Stewart left before Martin arrived. 16. Stewart returned home with Davies to put on a tracksuit top. He said he did not want to leave the house again but Davies persuaded him to do so. Davies received a phone call, Stewart thought from Dacosta Daniel, and was informed that Witter and Cameron had gone home. Davies relayed this phone conversation to Stewart. Dacosta Daniel was complaining that Martin was hitting the deceased and cutting him. Davies’ reaction to the news was to laugh and say, “He’s a game lad, Darren”. Davies appeared to be enjoying it. 17. They went to pick up Martin. Stewart swore at him and voiced the opinion that what he had done to the deceased was wrong. Martin replied, “What’s up?”, as if he had not done anything at all. Stewart asked him what he had done and Martin replied, “What? I haven’t done nowt”. 18. Back at Martin’s house they swapped cars and Martin took the Laguna. Stewart understood that he was going back to Judy Woods. Stewart and Davies drove to Davies’s house before setting out to look for Dacosta Daniel. Stewart received a phone call from Neale wanting to know what had happened. Neale said that he had heard that Cameron had been stabbed (this referred to an injury received by Cameron in the course of events at the deceased’s home) and that there was no money or drugs. He said that he was on his way to Bradford and wanted to speak to Davies and collect Dacosta Daniel. 19. Davies spoke to Martin on the phone and told him that they were going to meet Neale. Stewart heard from Martin, via Davies, that the deceased was still alive in the van. Stewart and Davies met with Neale. They then drove to Shirley Manor where Dacosta Daniel and Martin were present with the van and where the deceased’s body was dumped. 20. The following morning Stewart was awoken by Davies and informed that the deceased had died. Davies told him to get up. Martin was waiting outside the house in his car. Stewart blamed Martin for what had happened, but Martin did not seem bothered. In the afternoon he and Davies hired some bikes to go to Judy Woods to look for the discarded gun. During an argument between Davies and Ali which was captured on CCTV, Davies had said, “You’ve just found out you’re involved in a murder and you’re going around with a known grass (i.e. Dean Martin)”. Stewart and Ali both left Bradford to get out of the way. 21. Matters covered in the cross-examination of Stewart included the circumstances in which he had agreed to give evidence for the Crown (an issue to which we will return) and inconsistencies between the accounts he had given at various times. 22. Other prosecution evidence included a detailed log of calls made between the defendants’ various mobile phones, together with cell site evidence as to the location of the phones when those calls were made. Stewart’s evidence was consistent with that evidence, though one of the points made in cross-examination of him was that he had tailored his account to fit with it. There was also a body of CCTV evidence showing the movements of vehicles and defendants at various times. Dean Martin gave evidence which, among other things, supported Stewart’s account of the phone call he received from Davies while he was in his car with Ali and Dean Martin. 23. A man called Gary Folkard, a friend of the deceased, gave evidence that he called at the deceased’s home at about 20:00 for a pre-arranged meeting. Having knocked repeatedly at the door, he was dragged into the house and hit a number of times over the head with a wrench and some sort of metal object (which forensic evidence indicated was probably a frying pan). A man wearing tights over his head came into the hallway carrying a gun, which he forced into Mr Folkard’s mouth. Mr Folkard lost consciousness. As he regained consciousness he saw two men dragging the deceased out of the house by his shoulders, face down. The deceased looked unconscious. The man with the gun said that the deceased was coming with them until they got what he owed. 24. Forensic examination of the address revealed that the deceased must have received at least four blows at that location. Evidence also suggested that a cushion cover had been placed over the deceased’s head while he was bleeding and that water had then been poured over it from a jug. There was extremely strong evidence that the deceased had been struck with the wrench and had then been dragged out of the house. 25. Moving to the later stages of the crime, a van and a car, driving in convoy, were witnessed entering the grounds of Shirley Manor just after midnight. At about 00:30 a group of teenagers camping in the area heard a number of people talking and what sounded like a van door sliding open and shut. The van drove off with screeching tyres. At 01:13 Martin purchased some petrol. At between 2:10 and 2.45 the van was set alight. The burnt-out van was subsequently recovered and was identified as a Ford Transit purchased by Davies less than a month before the killing. There was expert evidence that the tyre marks found at Shirley Manor matched the section of burnt tyre recovered from the van. 26. In relation to Davies, there was evidence of bad character: in an undercover police recording made in connection with an unrelated matter he was heard directing violence against an unknown individual in relation to an unpaid drug debt, and expressing his approval of the violence used. 27. In relation to Martin, there was evidence that a swab taken from the inside of the left arm of the deceased matched Martin’s DNA. 28. Daniels, Davies and Martin did not give evidence. Neale gave evidence to the effect that he had no involvement in the robbery and that his contacts with Stewart and Dacosta Daniel were entirely to do with a cannabis deal. The SOCPA regime 29. Sections 71-75 of SOCPA, the statutory provisions relating to defendants who assist in the investigation or prosecution of an offence, were examined in detail in R v Blackburn [2007] EWCA Crim 2290 , [2008] 2 Cr App R (S) 5, and do not need to be set out at length here. Section 73 governs the arrangements for a reduction in sentence for a defendant who in specified circumstances has provided assistance. By subs.(1), the section applies if a defendant (a) following a plea of guilty is either convicted of an offence in proceedings in the Crown Court or is committed to the Crown Court for sentence, and (b) has, pursuant to a written agreement made with a specified prosecutor, assisted or offered to assist the investigator or prosecutor in relation to that or any other offence. By subs.(2), in determining what sentence to pass on the defendant the court may take into account the extent and nature of the assistance given or offered. 30. At para 27 of the judgment in R v Blackburn the court stated that “[t]he essential feature of the new statutory framework is that the offender must publicly admit the full extent of his own criminality and agree to participate in a formalised process”. Those and other features of the SOCPA regime are reflected in the Attorney General’s guidelines on witness immunities and undertakings. 31. Because of the way it featured in the judge’s ruling at the trial and in the argument on the present appeal, it is also relevant to note what the court said at para 22 of the judgment in R v Blackburn , under the heading “The Common Law”, before it came to the detail of the SOCPA regime: “There never has been, and never will be, much enthusiasm about a process by which criminals receive lower sentences than they otherwise deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, but about which they have provided useful information to the investigating authorities. However, like the process which provides for a reduced sentence following a guilty plea, this is a longstanding and entirely pragmatic convention. The stark reality is that without it major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would escape justice. …. The solitary incentive to encourage co-operation is provided by a reduced sentence, and the common law, and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction.” Stewart’s SOCPA agreement 32. The factual background to the making of Stewart’s SOCPA agreement was as follows. On 7 August 2007, Stewart was arrested, interviewed and released without charge. 13 November 2007, he was arrested for a second time, was interviewed further and was charged with murder. Throughout this process he made limited comment and denied any involvement in the murder. 33. Some time between February and April 2008, an exchange of draft proofs of evidence took place between Stewart and Dacosta Daniel while they were in prison. Stewart wrote a manuscript letter to Dacosta suggesting a number of amendments to Dacosta’s proof of evidence so that it more closely reflected Stewart’s account of events. 34. In June 2008 Stewart contacted the police through his solicitors to indicate that he wished to speak to them within the SOCPA framework. On 16 June 2008 there took place a “scoping” interview in which he gave his account of events for the purpose of enabling a decision to be made by the prosecution as to whether to enter into a SOCPA agreement. In the course of the interview Stewart handed over a draft proof of evidence prepared by his legal team on the basis of his instructions. At the end of the interview one of the interviewing officers expressed the view that they had got enough for a decision to be made. On the morning of 17 June, however, before the SOCPA agreement was entered into, a further scoping interview took place at which, as explained further below, Stewart for the first time implicated Daniels in the events leading up to the death of Edward Simpson. 35. The SOCPA agreement was then entered into, signed by Stewart and a specified prosecutor. It provided: “2. It is hereby agreed that Sonny STEWART will assist the investigator and prosecutor in relation to the ongoing investigation being conducted by West Yorkshire Police into the murder of Edward Simpson. 3. Assistance under the terms of this agreement will include the following: (a) Sonny STEWART will plead guilty to the offences of conspiring to rob Mr Simpson and manslaughter as a result of his death. (b) Sonny STEWART will participate in a de-briefing process. He undertakes during that process, which will be tape recorded and conducted under caution, to fully admit his own involvement in the matters under investigation. (c) Sonny STEWART will provide the investigator with all known facts, statements, documents, evidence or any other items available to him relating to the said investigation and offences and the existence and activities of all others involved. (d) Sonny STEWART will maintain continuous and complete co-operation throughout the investigation of the said offences and until the conclusion of any court proceedings arising as a result of the investigation. Such co-operation includes but is not limited to Sonny STEWART: (i) voluntarily and without prompting providing the investigator with all information that becomes known to him or available to him relating to the said offences in addition to any such information already provided; (ii) providing promptly, and without the prosecutor using any powers under any section of the Act, all information available to him, wherever located, requested by the investigator in relation to the said offences, to the extent it has not already been provided. (e) Sonny STEWART will give truthful evidence in any court proceedings whatsoever arising from the investigation of the said offences.” 36. There followed, on 17 June and 18 June, a number of formal evidential interviews under caution. 37. Thereafter Stewart pleaded guilty to conspiracy to rob and to manslaughter, and the evidence he gave at the trials of his co-defendants accorded with the account given in the evidential interviews which followed the SOCPA agreement. 38. Certain features of the SOCPA agreement and the surrounding circumstances are of particular importance for the submissions on the appeal: i) Stewart’s plea of guilty to manslaughter, and the Crown’s acceptance of that plea, are criticised on the basis that Stewart’s own account provided no proper factual basis for a plea to manslaughter, whilst on the case as advanced by the Crown at trial Stewart was guilty of murder rather than manslaughter. In his own account Stewart accepted involvement in the conspiracy to rob but maintained that the conspiracy envisaged only minimal if any violence being required to facilitate the robbery, owing to the timidity of the victim. The prosecution case, on the other hand, was that the conspirators must have envisaged that serious violence might be needed for the robbery. ii) It was only at a very late stage, immediately prior to the signing of the SOCPA agreement, that Stewart implicated Daniels in the events leading to the death of Edward Simpson. In his first scoping interview, on 16 June, and the draft proof of evidence handed across at that interview, he made no reference to Daniels. At the beginning of the further scoping interview, on the morning of 17 June, he was asked if there was anything else he wanted to tell the police about the events leading to the death. He responded that Daniels was “the main player in the organisation and all of the death of Edward Simpson” and went on to give details of Daniels’ involvement and of the basis of his, Stewart’s, knowledge of it. He claimed not to have said this before because he was scared for himself and his family’s wellbeing. iii) In the first scoping interview and the draft proof of evidence, Stewart said that Davies “laughed” on hearing that Martin was cutting the deceased’s ear. In the interviews after the SOCPA agreement, however, Stewart added to his account by stating that Davies not only laughed but said words to the effect of “Darren’s a game lad” on hearing the news about Martin cutting the deceased’s ear. It is said that this evidence about Davies glorifying in violence became a potentially important part of the case, because the jury convicted Davies of murder after asking a specific question “If a defendant became involved in the events at a point after some injuries had occurred, but did not contribute to the death by way of violence, but also did not stop events and attempt to help the victim, does that make him guilty of murder?”. The application to exclude Stewart’s evidence at the trial 39. At the start of the second trial it was submitted on behalf of Daniels that the case against him should be stayed because the evidence of Stewart had been obtained through an abuse of executive power and there was no other evidence on which the Crown could rely against him; the Crown had irrationally and for improper purposes failed to observe the usual practice under ss.71-75 of SOCPA; there was no proper legal basis for Stewart’s plea to manslaughter; Stewart did not accept his full criminal responsibility; the circumstances and timing of his first mention of Daniels gave rise to the suspicion that he was induced to mention that name; and his evidence at the first trial lacked credibility in a number of respects. For similar reasons it was submitted on behalf of Davies that Stewart’s evidence should be excluded under s.78 of PACE . 40. In rejecting those submissions, Langstaff J said that ss.71-75 of SOCPA deal with the relationship between the Crown and those who give evidence about their own criminality in return for immunity or a reduction in sentence; they do not deal with the relationship between the Crown and co-defendants, save that they may be said to imply that it will not be an objection to the admissibility of the evidence of such a witness that he has “self-interestedly done a deal or entered into … a Faustian pact”. He referred to R v Blackburn , cited above, in particular to the passage in para 22 which talks of an overwhelming public interest that major criminals should be caught and prosecuted to conviction. As to the well recognised risk that where a witness gives evidence against accomplices he is serving his own ends and not those of justice, the judge observed that the conventional answer to that has not been exclusion but entrusting the jury to reach the appropriate conclusion on the evidence in the light of cross-examination and with an appropriately worded direction from the court. He also referred to R v Cairns [2003] 1 Cr App R 38 for the proposition that the prosecution has a discretion to call a witness part of whose evidence is capable of belief even if not all of his evidence is regarded as reliable. He continued: “It seems to me that there is no abuse in executive discretion given the overriding public interest to which I have made reference. For the Crown to accept as a pragmatic matter a plea which is freely offered in consequence of legal advice accepted by him and in respect of which there is no evidence of improper pressure, … put shortly in the circumstances of this case – I can understand, as I indicated in the previous trial I did, why that pragmatic approach might be taken. It does not seem to me to be relevant that there is, in effect, a plea to [an offence] which, on my current understanding of the law, it would be difficult if not impossible for the Crown to make out. Given not least that Section 71 to Section 75 make provision, amongst other things, for immunity in cases of those defendants who are known … to have committed various crimes. I turn, therefore, to the argument in respect of Section 78 . The argument here is to exclude the whole of the evidence, that is a bold argument. In my view there is no proper basis for excluding the whole of the evidence. … The jury are the proper arbiters. It is not in my view appropriate to regard evidence of a co-conspirator or accomplice otherwise admissible and whose admissibility is provided for by inference by Sections 71 to 75, by regarding the prejudicial effect as outweighing the probative value, because in one sense the more cogent the evidence is against a defendant the greater the ‘prejudicial’ effect may seem to be. The safeguard it seems to me to be applied here is that which is conventionally applied in the case of those who give evidence against their mates, and that is to give proper directions reminding the jury of Stewart’s self-interest, and any particular flaws which have emerged in his evidence and inconsistencies therein. It seems to me that that is the way in which the interests to which I first referred, those of securing a fair trial, that is a fair trial to all parties, can be served. For those reasons I do not regard the balance is made out favourably to exclusion. The evidence is to be included.” 41. Prior to the judge’s ruling there had also been argument on behalf of Davies that, by handing over his draft proof of evidence in the course of the first scoping interview, Stewart had waived legal professional privilege in communications between himself and his legal advisers, so that the defence could seek disclosure of that material. The proposal canvassed by counsel for Davies was that a witness summons should be issued by the defence against Stewart’s solicitors. The judge expressed a provisional view that privilege had not been waived. Full argument was left over on the basis that it would require Stewart himself to be represented, since the privilege was his. It appears, however, that the matter was not then pursued and that the judge was not called on to make a formal ruling on it. 42. When it came to his summing-up, the judge gave directions of the kind he had indicated in his ruling on abuse of process and unfairness, as to how the jury should approach Stewart’s evidence. They included this: “Do not lose sight of the fact that some witnesses may have reasons of their own for being not wholly truthful. In particular, take care when you are looking at the evidence of Sonny Stewart. He was ‘One of the gang’. He has done what has been described as the deal of the decade if not of the century, got away with murder, engaged in a deal which the Prosecution are said have ‘Done a deal with the devil’, two of the phrases. You may think that if he had been in the dock you would have been asking whether he was guilty of murder. Well, he offered a plea to manslaughter. Plainly, you may think, the prosecuting authorities accepted that in order to put his evidence before you. They do so on the basis that he promised, in a form of agreement which is authorised by an Act of Parliament, the SOCPA agreement, … to tell the whole truth. That does not mean to say he has told the whole truth, it is for you to decide the extent to which he has done. It has been strongly suggested that to secure the deal he might have emphasised some other Defendants’ roles or even in the case of Daniels, invented them. Does he have a reason to do so? Has he minimised his own role? Your distaste for the procedure does not matter, you must avoid prejudice. But you should be careful of the fact that he might have interests of his own to serve. He did not mention a word of Johnny Daniels’ involvement on the day he was first interviewed by the Police to see if they would enter into an agreement, yet the very next morning almost the first thing he did was to volunteer his name. Look carefully at why that was. Do you accept that the reason he did not mention Daniels on the 16 th June last year, was that he was worried, scared about what he thought Daniels might do to him and his family? Or was it because he wanted to offer a name to secure a beneficial deal?” The submissions on the appeal 43. The case advanced on appeal is that the prosecution should not have been allowed to adduce Stewart’s evidence at all: it was an abuse of process for the trial to proceed on the basis of that evidence, or the evidence should have been excluded under s.78 of PACE . 44. Reliance is placed, first, on the general nature of the SOCPA agreement and Stewart’s plea of guilty to manslaughter. Neither Stewart’s own account nor the way in which the prosecution put its case against the co-defendants at trial provided any proper basis for Stewart’s manslaughter plea. Thus the prosecution were calling as their principal witness a man whom they knew or believed to be lying on a matter as fundamental as the basis of his own plea. Moreover, under the SOCPA agreement Stewart had agreed to “fully admit” his own involvement in the matters under investigation; and the effect of the agreement and its statutory framework was to compel him to see his account through to the bitter end if he was not to lose the benefit of the SOCPA process. It was an abuse or unfair for the prosecution to rely on his evidence in those circumstances. 45. Reliance is also placed on the specific circumstances surrounding the making of the SOCPA agreement, a point which shades into the second aspect of the case advanced. The fact that the SOCPA agreement was entered into immediately after Stewart had implicated Daniels, having made no previous mention of his involvement, prompted questions about the conduct of the police. Concern was expressed that one of the officers concerned harboured prejudice towards Davies. The nature of the questioning of the police officers at the trial and of the evidence elicited is apparent from the following passage in the judge’s summing-up: “What is of particular importance, you may think, in this case was whether or not Sonny Stewart had had any off-the-record conversations between the first day, the 16th, and the second day, the 17th, the very first time that he mentioned anything about the involvement of Johnny Daniels. Why was that? Was it because he had spent the night wondering how he might beef up his account; was it because he was wondering whether he should tell what he knew. Was it because something was said to him secretly, off-the-record, that is, off the tape record – there was a record of it but not a tape record of it, by the Police. Well, when he was asked in cross-examination, my note of it reads thus. ‘Did you have any conversations with the Police about the account you’d given?’ Answer, ‘No’. ‘No-one approached you to ask you about what you had said?’ Answer, ‘No’. The Police Officers who came told you that there were conversations about telling the truth, that is what you had to do. They said there was a conversation about giving him material which he had not got with him in the police station, the CCTV and the telephone records. But there is no actual evidence that there was a conversation about the account which he had given. That may miss the point, the point that has been made to you powerfully by Defence counsel is, everything else was tape-recorded, why was this particular conversation not tape-recorded? So you know, so you can be sure of that. But there it is, it is for you to make of the evidence what you will.” 46. That feature of the evidence is relied on as reinforcing the general case as to abuse and unfairness in permitting Stewart to give evidence. It also leads in, however, to the separate submission that Stewart should not have been permitted to give evidence without waiving legal professional privilege so as to allow the defence to see his solicitors’ files. It is submitted that that material was of potential importance for a number of issues, notably: (i) the reason for Stewart changing his account just before the SOCPA agreement so as to implicate Daniels in the events leading to the murder; (ii) what led Stewart to embellish, in a manner adverse to Davies, his account of Davies’s reaction to the information that Martin had cut the deceased’s ear; (iii) the circumstances in which Stewart came to exchange draft proofs of evidence with Dacosta Daniel in prison and to suggest changes to Dacosta’s own proof; and (iv) the wider circumstances of Stewart’s entry into the SOCPA agreement and his change of plea to one of guilty to manslaughter. Given the dangers inherent in evidence of the kind given by Stewart against his co-defendants (cf. Benedetto v The Queen [2003] 1 WLR 1545 ), the prosecution bore a heavy burden to investigate his account exhaustively as to its reliability, and those investigations should have included full analysis of the solicitors’ files on those matters. 47. The argument put to Langstaff J that Stewart had waived legal professional privilege by entry into the SOCPA agreement or disclosure of his draft proof of evidence was, very sensibly, not pursued before us. It was, however, submitted to us, though it had not been put that way to the judge, that the prosecution could and should have required Stewart to waive privilege and that in the absence of a waiver and an investigation of the solicitors’ files it was an abuse and unfair for Stewart to give evidence. 48. In his submissions on behalf of Daniels, Davies and Neale, Mr Kelson QC placed a great deal of weight on the ruling given by Owen J on 7 December 2009 on a defence application for prosecution disclosure in R v George and Others . In his contention that ruling, which was made after the trial of the present appellants, could be transposed to this case and should lead to the conclusion that every defendant who enters into a SOCPA agreement can be required to waive privilege and that the prosecution cannot rely on his evidence if he refuses to do so. We examine Owen J’s ruling in the next section of this judgment. 49. Mr Goldrein QC, who represented Martin on the appeal but did not appear below, put the focus of his submissions on the obligations in Stewart’s SOCPA agreement. The existence of the SOCPA process may be the result of pragmatism (see R v Blackburn , para 22), but there is no room for pragmatism in the operation of that process. Unlike the former “text” regime, which still exists as an alternative, the SOCPA regime is much more formalised (see R v Blackburn , para 27, and the observations in R v H [2010] 2 Cr App R (S) 18, para 3). The formalised process means that strict compliance is required. The defendant is bound by contract to make complete disclosure and is in breach of contract if he fails to do so. If a defendant is to be “cleansed” by the process, he can have nothing to lose by waiving privilege; and if a waiver is not volunteered, the inference must be that there is something to hide. For that reason some authorities are including a provision in their SOCPA agreements requiring the defendant to waive privilege. In this case the prosecution called a witness, Stewart, whom they could not put forward as totally reliable, yet they had contracted with him that he would tell the whole truth. The SOCPA agreement does not allow the prosecution to call someone whose evidence is known or believed to be contaminated by lies. 50. We should emphasise that the case advanced before us relates only to the question whether the trial should have been allowed to proceed at all on the basis of Stewart’s evidence. No complaint is made about the way in which the judge dealt in his summing-up with that evidence once it was given, either as regards his summary of the evidence itself or as regards his directions to the jury about the approach they should adopt in assessing Stewart’s reliability. The ruling in R v George 51. R v George & Others was a prosecution brought by the Office of Fair Trading (“the OFT”) against executives of British Airways (“BA”) for alleged participation in a price-fixing arrangement with Virgin Atlantic Airways (“VAA”). Owen J’s ruling of 7 December 2009 was made on a pre-trial application by one of the defendants for disclosure by the prosecution. The material in question was in the possession of third parties. The judge proceeded on the basis that where there were reasonable grounds to suspect that a third party had material or information that might be disclosable if in the possession of the OFT, the OFT was under a duty to take reasonable steps to obtain it. 52. The disclosure sought included material relating to three VAA executives who had been granted immunity from prosecution and were prosecution witnesses. Legal professional privilege had been claimed in respect of such material. The relevance of the material can be seen from this passage of the ruling (para 21): “So far as the first category is concerned, the defence seek disclosure not only of all previous accounts of the relevant events given by the three VAA witnesses, but any record of the context in which such accounts were given, i.e. the questions put to or comments made to them in the course of giving their accounts. It is submitted on behalf of Mr George that in the light of the disclosure that has now been given, it can be seen that each of them give accounts that develop significantly and change over time. Moreover none of the witnesses, either in their first or subsequent more detailed accounts suggested that they were guilty of the cartel offence, yet subsequently admitted their guilt when required to do so by the OFT. [Counsel for Mr George] also relies upon the fact that the statements made by them to lawyers acting for VAA are inconsistent with the statements served by the OFT. She submits that it is therefore reasonable to infer that the witnesses were put under pressure either to give statements and/or to tailor their evidence to safeguard their own position and/or to protect the perceived interests of VAA. It is submitted that the material in relation to which disclosure is now sought is likely to support the proposition that such witnesses were subject to inducement or pressure, and that that could have the most serious effect upon their reliability or credibility. I accept that it is possible that such material could have that effect, and I have no doubt that if in the possession of the OFT, it would be disclosable.” 53. Owen J considered it far from clear that legal professional privilege had been properly claimed in relation to the VAA witnesses. He also held, however, that the OFT ought to press for a waiver of the privilege if it existed. In reaching that conclusion he took into account an OFT guidance note concerning the obligations assumed by those who benefit from immunity or leniency. The note included the following: “8.1 The requirement to maintain continuous and complete co-operation throughout the OFT’s investigation and any subsequent proceedings is at the heart of the leniency process and is a stated requirement in both the OFT’s penalty and no-action guidance. Clearly the requirement necessitates compliance with the rules and principles set out in those guidance documents and also in this guidance note …. … 8.26 It is important that a careful note is made of all actions taken as part of an internal investigation, and that those are retained until the conclusion of any proceedings. There may be circumstances where the OFT will need to rebut arguments that an internal investigation has compromised the integrity of the OFT’s case, and clear contemporaneous notes detailing each step in such an investigation will be invaluable. 8.27 The importance of note-taking and the retention of notes is particularly acute when it involves the conduct of interviews with witnesses …. … 8.29 It is accepted that the undertaking may contend that legal professional privilege will attach to both of the types of notes referred to in paragraphs 8.26 and 8.27 above. However, there may be circumstances where the OFT is advised by counsel that disclosure to the OFT and to others is necessary to enable a case to proceed and in those circumstances the OFT will expect an undertaking or individual to waive any applicable privilege to the extent that the OFT is advised that it is necessary ….” 54. The judge said that the question was whether it would be reasonable for the OFT to press for disclosure of the material, notwithstanding the claim to legal professional privilege, on the basis that both the airlines and the VAA witnesses were under the duty to give continuous and complete co-operation as a condition of leniency/immunity and, failing a satisfactory response, to invoke its power to revoke the leniency agreements and no-action letters. He stated (at para 32): “In my judgment the OFT ought reasonably to take such steps. I arrive at that conclusion for a number of reasons. First I have borne in mind the overriding obligation on the OFT as the prosecuting authority to deal fairly with the defence. Secondly I take account of the duty on the airlines and VAA witnesses to give continuous and complete co-operation, and of the fact that the airlines are required to grant the OFT access to all relevant documentary material as a condition of the leniency agreements. Thirdly I take account of the nature of the material sought, and of the fact that it may shed light upon an issue likely to be of considerable importance at trial, namely whether the VAA witnesses were subject to pressure or inducement with regard to the changes in their account of the events in question. Fourthly I bear in mind that waiver would not result in any unlimited loss of the applicable privilege since any waiver would be for the purposes only of the criminal trial. If a request for waiver is made, it may be that the airlines, and more importantly the VAA witnesses, will respond favourably, bearing in mind that if they do not do so, they will face the risk that immunity/leniency will be withdrawn.” The conviction appeals: discussion 55. We do not accept that Stewart’s evidence was wrongly admitted at the trial. It was not an abuse of process for the prosecution to adduce it, nor did it have an adverse effect on the fairness of proceedings so as to call for exclusion of the evidence under s.78 of PACE . 56. There can be no objection of principle to the admission of evidence given by a defendant who has entered into a SOCPA agreement. As Langstaff J observed in his ruling, it is implicit in the statutory framework that the fact that a witness has done a SOCPA deal will not in itself be an objection to the admissibility of that witness’s evidence; but in any event the position in this respect is no different from that which applies to a defendant who co-operates with the authorities under the procedures that have existed at common law since long before the enactment of SOCPA (to which reference is made in para 22 of R v Blackburn , cited above). The dangers inherent in a witness giving evidence against accomplices in such circumstances are of course well recognised. They are met, however, by ensuring that the jury are given a proper warning of those dangers and of the need to take them into account in their assessment of the evidence, as was done by the judge’s directions to the jury in this case. They do not generally mean that the evidence should be excluded altogether, even where it is of central importance as it was here. Similar considerations apply to the contention that the evidence of a defendant who has entered into a SOCPA agreement should be excluded because the agreement and the statutory framework “compel” him to see his account through to the bitter end for fear of losing the benefit of the agreement. That, again, may be relevant to the assessment of the evidence but is not a reason why the evidence should not be admitted at all. 57. There is nothing in the particular circumstances of the present case to warrant the conclusion that Stewart’s evidence should nonetheless have been excluded. The prosecution’s decision to accept his plea of guilty to manslaughter even though it was neither supported by Stewart’s own account nor consistent with the way the Crown advanced its case of murder was described as a pragmatic one and, like the judge, we find it difficult to see a coherent legal basis for the plea. There is, however, plainly room for pragmatism under the SOCPA regime as in relation to the corresponding processes at common law. It may well be that, in return for giving evidence against his co-defendants, Stewart got off very lightly. Indeed, in sentencing him the judge observed: “You are lucky, in my view, not to have been convicted of murder, and for that you have the fact that you entered into the agreement you did with the Prosecution to thank”. Such a possibility is inherent in the SOCPA regime. It does not provide a good reason for excluding the evidence, though it does reinforce the need to ensure that the jury are properly directed on how to approach the evidence. 58. If the prosecution considered core features of Stewart’s evidence against his co-defendants to be capable of belief, it was entitled to put Stewart forward as a witness even if he was not considered to be telling the whole truth about his own involvement. The judge rightly relied on R v Cairns [2003] 1 Cr App R 38 to that effect. The position is not altered by the fact that Stewart’s SOCPA agreement required him fully to admit his involvement and to give truthful evidence but there was reason to believe that he was not making a full admission or giving truthful evidence as to the extent of his own involvement. Any such failure to fulfil the terms of his agreement exposed him to the risk that he would lose the benefit of the agreement and to proper attack upon his credibility in cross-examination by the defence. It did not, however, make it an abuse or unfair for the prosecution to put him forward as a witness. 59. Although a great deal was made at trial, as in the submissions to us, about the circumstances in which the SOCPA agreement came to be made, we see nothing in those circumstances that made it an abuse or unfair for the prosecution to rely on Stewart’s evidence as it did. It is true that Stewart’s first mention of Daniels was made at a very late stage, just before the agreement was entered into. It is also true that in his evidential interviews he added to what he had said previously about Davies’ reaction to Martin cutting the ear of the deceased (“Darren’s a game lad”). There was, however, no evidence that he had been pressured or induced by the police to change his account in either respect or had been encouraged to lie in the account he gave. The evidence about his conversations with the police over the relevant period, including the absence of a tape record of them, was before the jury for them to assess. That, rather than the exclusion of his evidence, was the correct way for the matter to be dealt with. 60. On the issue of legal professional privilege, one of the difficulties facing the appellants is that the arguments were advanced before the judge in a less developed way than before us and do not appear to have been pursued to a conclusion. Unlike in R v George , there was no application for prosecution disclosure that would have required the prosecution to obtain documents in the possession of the witness’s solicitors and if necessary to procure a waiver of privilege for the purpose. It seems that there was no actual application of any kind. Nevertheless we think it right to address the issues that have been raised on the appeal. 61. The fundamental importance of legal professional privilege in the context of disclosure in criminal proceedings was affirmed by the House of Lords in R v Derby Magistrates’ Court, ex parte B [1996] 1 Cr App R 385 ; and see, more recently, R (Kelly) v Warley Magistrates’ Court [2008] 1 Cr App R 14 , para 25, and R v Seaton [2010] EWCA Crim 1980 . Mr Bayliss QC, resisting the present appeals, submitted that it is so fundamental that, in the absence of express provision to that effect, SOCPA is not to be read as authorising the imposition of a requirement that a defendant waive privilege as a condition of a SOCPA agreement, and/or the terms of Stewart’s SOCPA agreement are not to be read as imposing such a requirement: they should not be so read in the absence of express provision or necessary implication to that effect. 62. We are inclined to the view that it is open to a prosecutor to include in a SOCPA agreement an express condition as to waiver of privilege if it is considered that such a waiver is or may be necessary for the purpose of obtaining the defendant’s full assistance. But we heard only limited argument on the issue and we do not need to decide it for the proper disposal of the present appeals. 63. Assuming that a requirement to waive privilege can lawfully be included in a SOCPA agreement, we doubt whether the terms of Stewart’s actual SOCPA agreement are sufficient to enable the prosecution to require him to waive privilege. The language is certainly very wide, with obligations such as to provide “all known … documents” and to “maintain continuous and complete co-operation”, but in our view one should be slow to read such general language as imposing an obligation to waive privilege or to provide documents that are the subject of privilege. If a requirement to waive privilege is to be imposed, we would expect it to be spelled out in clear, specific terms. We acknowledge that in R v George Owen J took the view that the OFT could rely for that purpose on the obligation under the immunity/leniency agreements to give continuous and complete co-operation and to grant access to all relevant documentary material, and that the scheme under consideration in that case had many similarities to the SOCPA regime. On the other hand, the OFT guidance contained an express indication that a waiver of privilege might be called for, and the agreements in question might fall to be read in the light of that guidance. There are other possible points of distinction between the cases. Accordingly, the reasoning in R v George cannot necessarily be transposed to the present context. Again, however, we do not need to reach a decision on the point. 64. It is sufficient for present purposes that even if the prosecution had the power in this case to require Stewart to waive privilege in the material in his solicitors’ files and thus the power to obtain that material, there was no application that the prosecution should follow that course; it did not fail in its duties of investigation and disclosure by not following that course of its own initiative; and such a failure could not be said in any event to have been of such seriousness as to make it an abuse or unfair to rely on Stewart’s evidence. The material simply did not have the potential importance claimed for it. The suggestion that it might have contained something capable of undermining Stewart’s credibility or unreliability is pure speculation. As it was, the nature of the SOCPA agreement and what it meant for Stewart were squarely before the jury. The changes in his account over time and in particular just before and just after entering into the agreement were likewise before the jury, as were his explanations for them, the evidence of the police as to the conversations that took place and the fact that, exceptionally, those conversations had not been tape-recorded. The jury also had Stewart’s letter to Dacosta Daniel asking for changes to Dacosta’s proof of evidence, and Stewart’s explanation for that letter. There is no reason to believe that the solicitors’ files contained anything capable of adding materially to the very full picture already before the jury on those issues. 65. Further, although cross-examination of Stewart and comment on his evidence were limited to some extent by the need to avoid intruding upon the privilege, we have been shown nothing to suggest that this was a serious limitation in the overall context of the case. 66. Taking everything together, the arguments concerning legal professional privilege appear to us to lack cogency in the factual circumstances of this case even if the requisite powers to require a waiver of privilege and to obtain privileged material are assumed to exist. The conviction appeals: conclusion 67. In conclusion, we are satisfied that Langstaff J’s ruling on the issues of abuse of process and exclusion of evidence under s.78 of PACE was correct and that Stewart’s evidence was properly admitted at the trial of the appellants. We are also satisfied that it was not an abuse or unfair for Stewart’s evidence to be given without waiver of legal professional privilege and disclosure of the material in his solicitors’ files. The matters advanced on behalf of the appellants have not caused us to doubt in any way the safety of their convictions. All the appeals against conviction are therefore dismissed. Davies’s appeal against sentence 68. That makes it necessary for us to consider Davies’s appeal against the minimum term of 35 years specified by the judge in respect of the offence of murder. 69. In setting that minimum term, the judge took a starting point of 30 years, on the basis that, as a murder committed in the course of a robbery, this was an offence of particularly high seriousness. He considered there to be a number of aggravating features which justified an increase over the 30 year starting point: a significant element of pre-planning of the robbery, that it was a group attack, the fact that the victim was vulnerable, the use of an imitation firearm, and the persistence of the assaults committed on the deceased throughout the evening until he succumbed, without any attempt to seek assistance for him although he was known to be seriously injured. He had previously also referred to the attack on Gary Folkard (the man who called at the victim’s house at the time of the robbery) as an aggravating factor. The judge accepted that the defendants did not intend to kill the deceased, but he said that that mitigating feature was balanced by the fact that the intent was to use whatever violent means were necessary to extract the whereabouts of the money and cash, and it was an intent to cause considerable suffering. 70. Davies had a substantial criminal record, mainly for drugs offences and acquisitive offending. His first convictions were in 1998, for possession of cannabis and amphetamine. Other convictions included numerous offences of theft and obtaining by deception in 2001 and an offence of handling stolen goods in 2004. In October 2008 he was sentenced to a total of 6 years’ imprisonment for offences relating to the supply of class A and class C drugs. The judge noted that Davies’s record was not one of violence but that he had been heavily involved in drugs. Davies still had over a year to serve of the 6 year sentence imposed in October 2008. The judge considered that he should reflect the outstanding period in the minimum term for the murder. 71. The judge went on to refer to evidence called in the case which demonstrated that on a number of occasions around the time of the murder Davies used violence as an ancillary to his drugs trade. He had no doubt that Davies was someone who had taken pleasure in his physical strength and in violence. Further, Davies occupied a central role in the present offences, foresaw that serious bodily harm might occur within the house and knew that it was happening thereafter. 72. Having gone through those various matters, the judge concluded as follows: “Starting at 30 years, the aggravating features I have already identified put that figure up to 33 to 34 years given your organising role. I make allowance for the fact that you did not yourself wield a weapon within … the home of the victim. Having taken account of the fact that you are currently serving a sentence with a year and some months to run, it seems to me that the appropriate minimum terms that you must serve before you are even considered for release is one of 35 years.” 73. It is submitted on Davies’s behalf that, while the 30 year starting point was not inappropriate, the minimum term of 35 years was manifestly excessive. The aggravating factors relied on by the judge were factors that had already been accounted for in the starting point of 30 years, and in using them to increase the figure from that point he was double-counting. The judge was also wrong to describe the victim as vulnerable and to treat the attack on Gary Folkard as an aggravating factor. The only fair conclusion from the evidence and the jury’s verdicts in respect of the various co-defendants is that Davies did not have within his contemplation the very serious violence that was inflicted during the attack inside the deceased’s house; and the fact that he was not directly involved in the initial attack is a relevant factor, although the jury’s verdict must mean that his involvement in the treatment of the deceased after he had been removed from the house was such as to make him guilty of murder. In those circumstances a longer minimum term than given to those who inflicted the fatal injuries and carried out the torture inside the house cannot be justified. Finally, the judge failed to give adequate weight to the lack of an intention to kill in this case. 74. In assessing those submissions, it is highly material to note that the co-defendant Cameron was refused leave to appeal against his minimum term of 33 years, the court taking the view that a minimum term in excess of the 30 year starting point was inevitable and that a term of 33 years could not be said to be manifestly excessive: see [2010] EWCA Crim 1282 . 75. The judge, having presided over the two trials and heard all the evidence in the case, was in an excellent position to form a view on the relevant aggravating and mitigating factors, Davies’s organisational role, the degree of violence contemplated by him and other matters relevant to culpability. We see no error in the matters that he took into account or in the conclusion he reached. Bearing in mind what the court said on Cameron’s application and the particular features of Davies’s case, including the period remaining to be served of his existing sentence, we take the view that it was open to the judge to specify a minimum term of 35 years. The sentence was not manifestly excessive. 76. Davies’s appeal against sentence is therefore dismissed.

2010_11_24-2559.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2740/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2740

a18c0b3692e3b720ffa977a431e46c929f45f3be1746e6766fd4a286a34a4def

[2015] EWCA Crim 1101

EWCA_Crim_1101

crown_court

Neutral Citation Number: [2015] EWCA Crim 1101 Case No: 201500558 C3, 201501939 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 10 June 2015 B e f o r e : SIR BRIAN LEVESON (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE KENNETH PARKER MR JUSTICE STEWART - - - - - - - - - - - - - - - - - - - - - R E G I N A v RUPERT BRIAN STROTTEN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWa

Neutral Citation Number: [2015] EWCA Crim 1101 Case No: 201500558 C3, 201501939 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 10 June 2015 B e f o r e : SIR BRIAN LEVESON (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE KENNETH PARKER MR JUSTICE STEWART - - - - - - - - - - - - - - - - - - - - - R E G I N A v RUPERT BRIAN STROTTEN - - - - - - - - - - - - - - - - - - - - - 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 G Hepburne-Scott appeared on behalf of the Appellant Miss D Chan appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. SIR BRIAN LEVESON: On 12 January 2015, in the Crown Court at Lewes before HHJ Scott-Gall and a jury, the appellant was convicted of two counts of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003. He was acquitted of four further counts. On 27 March, before the same court, he was sentenced to 9 months' and 12 months' imprisonment in relation to the offences for which he was convicted; those sentences were ordered to run consecutively, totalling 21 months' imprisonment. A Sexual Offences Prevention Order was imposed and an unspecified Victim Surcharge Order made. This Surcharge order was unlawful on the basis that count 1 of the indictment alleged an offence on 7 January 2005, and the relevant legislation came into force without retrospective effect on 1 October 2012; it is therefore quashed. 2. Substantively, however, the appellant now appeals against conviction by limited leave of the single judge. His application for leave to appeal against sentence has been referred to the full court by the Registrar. 3. The background to this prosecution is as follows. In January 2005, the appellant (then aged 15 years) was arrested in connection with sexually touching a boy, CP (then aged 6 years). The allegation was that he had been alone with CP while baby-sitting him and had initiated a 'tickling game', which culminated in him deliberately touching CP's penis under his underwear. The appellant was then interviewed and released without charge. However, over 8 years later, in March 2013, the appellant (then aged 23 years) was again arrested, this time in connection with an allegation of sexually touching another boy, RG (then aged 3 years). It was alleged that he had sexually assaulted RG when alone with him and told him not to tell anyone as it was their "big secret" and that he (RG) would get into trouble if he did so. RG exhibited behaviour consistent with having been sexualised by an adult while at nursery school. 4. The prosecution contended that CP and RG were unconnected and had never met. Their complaints were independent of one another, and the prosecution argued that each was capable of lending support and credence to the other. As a result, the charge in relation to CP was resurrected and formed count 1 of the indictment which he faced; the remaining five counts concerned RG. The defence case was one of denial. The appellant had never touched the penis of either complainant. 5. In order to understand the factual matrix that surrounds this appeal, the facts must be set out in a little detail. CP who was born in November 1998 and gave evidence via ABE interviews recorded on 13 January 2005, that is to say immediately after the allegation arose when he was 6 years of age and again on 1 May 2013 when he was aged 14 years. In the first interview he stated that the appellant had touched his 'willy' and pointed to his genital area. CP said that the appellant had touched, tickled and licked his penis "again and again and again." The offending occurred at the appellant's family home. The touching occurred under his clothing. CP further stated that he had seen the appellant's "willy". 6. In May 2013, when interviewed again, CP said that the appellant and other children had been baby-sitting him. He and the appellant had been in the appellant's bedroom when the appellant started tickling him. The appellant moved lower down his body until he has tickling his penis by putting his hand under CP's trousers and pants. The appellant's mother had then entered the room and told the appellant to stop. 7. When cross-examined, CP agreed his recollection of the incident was vague. He could not now recall any 'licking'. He denied having been coached by his father as to what to say in interview. He agreed that the appellant's mother had not entered the room. He had previously said that she had as he had been nervous on the day of the second ABE interview. He maintained that the appellant had indeed touched his penis. 8. CP's father had known the appellant's mother for a number of years. They frequented the same public house and on previous occasions they and others would bring their children with them, and the children would play together in the beer garden. On the relevant day he was redecorating the public house and it was agreed that the appellant's mother would take CP back to her house with some other children, and that the appellant would look after them. He later went to collect CP from the appellant's family home. On their way home he asked CP if he had been "good" and had enjoyed himself. CP told him that he had. CP said that the appellant had touched his "willy" and tickled it. CP then immediately changed the subject. As a result, the police were later telephoned. He went on to add that he remained a friend of the appellant's mother and they had never discussed matters between them. 9. We turn to the remaining five counts. RG, born in May 2009, was interviewed in accordance with ABE guidelines on 5 April 2013, when he was aged 3 years, and on 26 June and 4 July 2013, when he was aged 4 years. In the first interview he said, among other things, that the appellant was "naughty" because he smoked and that the appellant slept in his bed but "fell out of my house and died." When asked if anything had happened to his penis, he replied "no" and when asked if the appellant had ever done anything to his penis, he replied, "He never has". In interview on 26 June 2013, he was asked how he knew about "licking willies" and maintained that he did not. It was put to him that he had told his mother that the appellant had touched his penis and he replied, "No, that didn't happen". The final rather more brief interview was inconclusive. 10. This, however, was not the totality of the evidence. RG's mother lived with him in a flat in the same building as the appellant. She explained that she had befriended the appellant and he would run errands for her and look after RG. At one point, when RG was a toddler, the appellant would visit their flat about four times a week. He would help her to change RG's nappy and they would play together in the communal gardens. She went on to say that RG, when 2½ years old, told her and her partner that the appellant had been "playing with his (RG's) willy". The two discussed what they had heard and they thought it was "not normal" but "brushed it to one side". They thought it could not have happened and did not take it seriously. They did however ask RG about what he had said, but he would reply, "Nothing, nothing, nothing." 11. RG's mother then sought advice from the nursery RG attended and they advised her not to let RG and the appellant spend any time together. Eight months later, however, the nursery contacted her to express concern over RG's sexualised behaviour and in particular his behaviour towards another child in the toilet at the nursery. 12. The basis of these allegations developed on 26 March 2013 when RG's mother was in her kitchen with a friend, while the appellant and RG were in the front room. She could hear the appellant and RG playing. She heard RG mention that the appellant was licking him; the appellant then said that he was tickling him. The appellant then entered the kitchen and said he was leaving. He was red in the face. She did not see him again. Later that day RG told her that the appellant had "been playing with his willy" and "plays with my willy." She later telephoned the police and told them what had happened on that day and what RG had told her in the past. 13. RG had also told her that the appellant liked to put RG's penis into his mouth and suck it. She had attempted to talk to RG about these matters, but he had not wished to speak about them and expressed concern over getting other people into trouble. After RG had been interviewed by the police, he told her that he had not been forthcoming in his ABE interview as he was frightened and would feel bad if others got into trouble. 14. When cross-examined, RG's mother agreed that RG had told her that another child from his nursery had put RG's penis into his mouth. She maintained, however, that RG had told her that the appellant liked to play with his (RG's) penis. 15. The mother's partner gave evidence that she overheard RG playing with another child. The other child had asked RG to "eat" his penis. She had attended RG's nursery and discussed matters with the staff there and there was an agreed summary of the log from the nursery. She added that after the matter had been reported to the police RG had asked her if they did not see the appellant anymore because he [the appellant] had "been bad" and asked her if his mother would be upset because the appellant had been bad. 16. The remaining evidence came first from a forensic scientist, who examined the underpants worn by RG on the date upon which matters were reported to the police. Tests revealed the presence of DNA from at least two individuals, but there was no indication that the appellant's DNA was present. Secondly, the officer in charge of the case confirmed that the appellant had been arrested and interviewed in January 2005 in connection with the allegations of CP; he was then released without charge. As for these later allegations, he responded to questions in interview and provided an account consistent with his evidence at trial. 17. The appellant gave evidence that he had not touched CP's penis and maintained the account that he had given the police in 2005 was truthful. As for RG, he had a good relationship with him, had never touched his penis and had never licked him. He would not assist RG if he wished to use the toilet. 18. On the evening of 26 March 2013, he had been at the boy's flat from about 7.30pm until 9.30pm. He had not been sleeping well in the days prior and had left abruptly as he felt tired and dizzy. RG had shown him some pictures he had painted at nursery. The appellant said he had not mentioned tickling to RG at all, notwithstanding what the mother had overheard, but RG was in the habit of saying odd things, some without foundation. RG had once said a dog had bitten him on the leg or the arm, but there was no evidence of this. When cross-examined, he agreed that he had been alone with CP on the relevant evening, although he could not recall tickling him. He agreed he had time with RG and on 26 March 2013 had been alone with him whilst his mother was engaged with her friends in the kitchen. 19. In the event, the jury convicted the appellant of the allegation concerning CP and of one allegation concerning RG, that is to say touching. Other allegations, all of which were samples, included licking and touching other parts of RG based upon complaints made to his mother. The remaining counts affecting RG, which went beyond touching and particularised to other conduct, led to verdicts of acquittal. 20. The sole ground of appeal concerns the admission by the judge of the hearsay evidence of RG's mother and friend as to the complaints which RG had made, but which he did not repeat during the course of the ABE interview. During the trial it was argued that RG, who was available to give evidence at the trial, had failed to substantiate the allegations and that, as a result, the application to admit the hearsay evidence could not be brought within section 114(1)(d) of the Criminal Justice Act 2003. The Judge was mindful of the provisions of section 114(2) of the 2003 Act and the counterbalancing measures set out in R v Ibrahim [2012] 2 Cr App R 32 , but concluded that there was no justification to refuse the application and that the defence would not be disadvantaged in challenging the evidence. 21. In this court Mr George Hepburne-Scott, who has said all that can properly be said for the appellant and who also appeared in the Crown Court, pointed to the fact that RG had also said that the appellant had cut his hand off and that the dog had told him things as undermining RG's reliability. He made the point that when giving his ruling on admissibility the judge did not refer to these features as affecting the boy's reliability, indeed he said that there was nothing that impacted on his reliability. On closer examination during the course of the appeal, however, it seems clear that these features of the evidence were not brought to the Judge's attention and Mr Hepburne-Scott resiled from the criticism that he made of the Judge's summary during the course of his ruling. 22. As to the hearsay remarks, however, Mr Hepburne-Scott underlined that RG had repeatedly denied that anything untoward had ever happened to him. He argued that the hearsay comment to the mother's partner, "We don't see Rupert any more because Rupert was bad because of the things he did around my bottom, but I don't want to say anything to Mummy as I don't want to make her angry and upset", came months after the appellant had been arrested and may well have been the result of contamination, that is to say, discussions between adults that RG had picked up. 23. As to the law, Mr Hepburne-Scott referred to the contrasting case of R v Riat & Ors [2012] EWCA Crim 1509 in which the complaints of a 3½-year-old child could not be subject to an ABE interview. In addition to the hearsay complaint, however, when her mother had been told and had decided to call the police, the defendant had left the house without saying anything by way of farewell. Further, on arrest, he had told one of the officers not to look at him as if he were a paedophile (there being a dispute as to whether he had been told the reason for his arrest). 24. Finally, in that case, the appellant provided an explanation for the possibility that his DNA could be found on the child's knickers, which the jury were entitled to reject as absurd, even though, in the event, his DNA was not found. Giving the judgment of the court, Hughes LJ (as he then was) observed that if the statement to the mother had stood alone, it would have been wrong to admit it or allow the case to go to the jury, but it did not for there were three other elements, to which we have referred, which provided sufficient means to test and assess the complaint. In the circumstances, the admission of the evidence, and thus the verdict, could not be impugned. Mr Hepburne-Scott contrasted that circumstance with this case, which he argued depended solely on the hearsay complaint. 25. On behalf of the Crown, Ms Dianne Chan, who also appeared in the court below, said that the complaints made by RG had to be considered in the round along with the other potentially supporting evidence. The remarks had spanned some 18 months and were consistent. They were supported by observations that he had made to his mother and her partner, and by evidence of sexualised incidents at the nursery, albeit that those sexualised incidents, which may well have demonstrated involvement in sexual activity, could not, under any circumstances, be brought home to the appellant himself. The additional justification for the admission of the hearsay came from the similar fact allegation made by CP who was entirely unconnected to RG. 26. She accepts that the remarks on 26 March 2013, which it seems to us from an examination of the facts occurred either at or immediately proximate to the incident, were not put before the judge as part of the res gestae. Although it is clear, having regard to the impact of the decision in Ratten v the Queen [1972] AC 378 , that an argument could have been advanced that these observations were admissible as part of the res gestae. In that regard, the possibility of concoction or distortion in relation to that allegation alone is capable of being discounted, not only because the appellant was there accepting that he was touching the boy RG, albeit not, as, he asserted it, sexually, and by the immediacy of the circumstances. 27. We have been taken to the ruling which the learned judge provided when he dealt with the application to admit this hearsay evidence. It is abundantly clear, once one discounts the fact that he knew nothing of the rather odd allegations that the boy made at other times about incidents which could not be true, that he analysed the facts in a way which cannot be challenged. Mr Hepburne-Scott submits that once this other material became available the judge should have revisited his ruling, and if that had led to the discharge of the jury so be it. In the event, no such application was made. 28. We have come to the conclusion that the multiple circumstances to which Miss Chan referred were sufficient to permit the judge to reach the conclusion that he reached in his comprehensive ruling. Had the matter been brought back to the judge at a subsequent occasion, it may very well be that consideration of the law of res gestae would have caused him to allow that aspect of the evidence to be admitted in any event, in which circumstance the rest of the material would also have fallen to be admissible, not least because the balance of discretion would then have flowed in favour of the admission of the entirety of the evidence, if only because of the intention, as was eventually realised, to play the entirety of RG's ABE interviews so that the jury could consider the matter in the round. In the circumstances, notwithstanding the powerful arguments which Mr Hepburne-Scott has raised, this appeal against conviction is dismissed. 29. We turn to the question of sentence and note that the appellant was sentenced to 21 months in custody, being 9 months in relation to the assault on CP and 12 months consecutively for the assault on the child RG. Mr Hepburne-Scott submits that as a matter of totality that sentence is too long. Of course the learned judge not only had the great benefit of having seen all those involved in these incidents in a trial, but he also had the benefit of comprehensive reports upon the appellant both in the form of a pre-sentence report provided by Jo Barton, dated 9 February 2015, and a psychiatric report prepared by Dr Daniel Hume, dated 16 February 2015. 30. In the latter Dr Hume identified that the appellant suffers from "a pervasive development disorder or autistic spectrum condition, and a mental and behavioural disorder secondary to the harmful and hazardous use of cannabis". He recommended that a sentence plan should include additional victim empathy awareness and specialised social skills training in addition to a sexual offending component in order to reduce the appellant's risk of offending in the future. He also noted that the appellant was suffering from symptoms of anxiety and depression relating to his current circumstances, but that these were being appropriately treated in custody. He did recommend, and we hope that it has come about, that the appellant will benefit from input from a mental health team while in custody. The probation officer believed that the only appropriate disposal was a term in custody. 31. We have been concerned that the original term is rather longer than would have been passed on a boy of 16 years of age, but we are extremely conscious that the judge had the overall sentence in mind and had conducted this comparatively lengthy trial with the benefit of seeing CP, RG, their respective families and most importantly the appellant himself. In the circumstances we are not prepared to conclude that this sentence is either wrong in principle or manifestly excessive, save in relation to the surcharge, to which we have previously referred, and for which purpose we grant leave to appeal against sentence and quash the order, as we have indicated; the appeal is otherwise dismissed.

2015_06_10-3618.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1101/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1101

f527a96ff97af6ab47aa996cc491c297897d8d47d74f8b260e85b7c40ad906f3

[2016] EWCA Crim 597

EWCA_Crim_597

crown_court

No: 2015/1204/C5 Neutral Citation Number: [2016] EWCA Crim 597 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 13 April 2016 B e f o r e : LORD JUSTICE McCOMBE MRS JUSTICE McGOWAN DBE THE RECORDER OF LEEDS HIS HONOUR JUDGE COLLIER QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - R E G I N A V WAYNE CAMPBELL - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International

No: 2015/1204/C5 Neutral Citation Number: [2016] EWCA Crim 597 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 13 April 2016 B e f o r e : LORD JUSTICE McCOMBE MRS JUSTICE McGOWAN DBE THE RECORDER OF LEEDS HIS HONOUR JUDGE COLLIER QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - R E G I N A V WAYNE CAMPBELL - - - - - - - - - - - - - - - - - - - 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 J Winship appeared on behalf of the Applicant The Crown did not appear and was not represented - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE McCOMBE: On 13th February 2015 in the Crown Court at Canterbury, after a trial before Her Honour Judge Norton and a jury, the applicant was convicted of two offences of rape contrary to Sexual Offences Act 2003, section 1 , and one offence of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 . 2. On 19th May 2015 he was sentenced in respect of those offences and for three further assault offences and one offence of handling stolen goods in respect of which he pleaded guilty on other occasions. For the offences mentioned above in respect of which he was convicted by the jury, he was sentenced by the judge to 11 years' imprisonment on each count of rape to be served concurrently and to two years' imprisonment also to be served concurrently for the assault, giving rise to a sentence of 11 years' imprisonment. In respect of the other offences to which he had pleaded guilty he received total sentences amounting to one year's imprisonment, consecutive to the other sentences that were imposed following the trial, giving rise to a total sentence of 12 years' imprisonment. He now renews his application for leave to appeal against conviction in respect of those offences of which the jury convicted him, following refusal of leave by the single judge. His application has been argued by Mr Winship in a very cogent and succinct manner for which we are grateful. 3. The short facts were these. The complainant on all four counts before the jury was a woman who we will refer to by the initials LD, a 24-year-old who was acquainted with the applicant through her friendship with his girlfriend, a lady called RM. It was not in dispute that both the complainant and the applicant were users of class A drugs and both had previous convictions. 4. The prosecution case was that on Thursday 7th August 2014 the complainant LD had met the applicant by chance outside a shop in Ashford. He had recently had an argument with RM, the circumstances of which gave rise to the offences of assault to which he had pleaded guilty and for which he was sentenced after the trial by the learned judge. He needed, said the Crown, somewhere to stay and it was agreed he would spend the night at the complainant's home address, a one-bedroomed flat. She said he was flirtatious towards her but she made it clear she was not interested and she went to bed expecting him to sleep on the sofa. She was awoken in the early hours to find him with his hand inside her pyjama shorts, digitally penetrating her vagina. That formed count 1 on the indictment in respect of which the applicant was acquitted. She protested, but he forcibly restrained her by straddling her, effectively pinning her arms down with his knees and attempting to force his penis into her mouth (count 3 on the indictment) before raping her vaginally (count 2). Throughout she was struggling and shouting. He subsequently abandoned intercourse and left the room. He returned a little while later, she said, and apologised. She told him to leave and he then forced her into the living room and onto a sofa where he pulled a dressing gown cord around her neck until she lost consciousness (count 4 on the indictment). 5. The following morning, as had previously been arranged, a neighbour arrived at her flat to give the complainant a lift to a contact centre where she was due to see her son. When the neighbour knocked at the door she rushed are out and made an immediate complaint of assault. She asked him to come in. The applicant was still present but after he left, as he did shortly after that, she told the neighbour that she had been raped. He took her to the contact centre. The allegations were repeated to staff there and the police became involved. She was examined medically and found to have numerous injuries which the Crown claimed were consistent with resistance to a gripping form of force. 6. The defence case on the other hand was that there was some consensual sexual activity. He denied the allegation that he was violent towards her or that he put a dressing gown cord around her neck. It was his case that the complainant was lying simply and that she was jealous because he was intending to return to his girlfriend (RM) and had threatened to leave the premises taking his drugs, in which they were mutually interested, with him. 7. He gave evidence that the chance meeting in Ashford was in fact on the Monday of that week, 4th August, and not the 7th as the Crown alleged. He had stayed at the flat at her invitation, from then on sleeping with her in her bed at her request. At that point there was no sexual contact but there was mutual drug use. On the Thursday, however, said the applicant, they took drugs and ended up in the bedroom where they had consensual sexual contact, including mutual oral sex. Vaginal intercourse he said was attempted but was unsuccessful. She then fell asleep. He said he went to another room and played on computer games. He woke her at 7 am to meet the appointment to go to the contact centre. She was angry at being awoken and a heated argument had pursued. He said he then packed his belongings while the neighbour was at the property. He then left and he denied that she had had any injuries at all when he left the premises. 8. The issue on the present application for leave to appeal arises out of a rejection by the learned judge, in a detailed ruling described on more than one occasion by Mr Winship as a "rigorous" one, of a defence application for leave to cross-examine the complainant in relation to two previous allegations of sexual misconduct made by her in February and March 2011 against a different man. The outcome of the application turned upon the provisions of section 41 of the Youth Justice and Criminal Evidence Act 1999 and upon section 100(1)(b) of the Criminal Justice Act 2003 . 9. The circumstances of the earlier allegations were summarised by the learned judge between pages 5D and 7E of the transcript: i. "It is accepted that the route to admissibility in respect of either allegation depends upon whether or not the cross-examination is about ... (computer glitch)... Any previous sexual behaviour or experience of LD. If so, then leave is required under section 41 of the Youth Justice & Criminal Evidence Act and the route to admissibility will depend upon the issue in the case and the purpose for which the evidence is sought to be deployed. 1. If, on the other hand, the defence can establish a proper evidential basis for asserting that the allegations were untrue, then the previous allegations are not caught by section 41 but will be evidence of non defendant's bad character and, therefore, the route to admissibility would depend upon the application of section 100(1)(b) of the CJA . 2. As previously stated, both previous allegations were made against a man called RD. He was a convicted sex offender who was many years older than LD but with whom it would appear she regularly stayed. That may or may not have been in connection with drugs. In a statement dated 13th March 2011, she set out the basis of their friendship and stated that he had become obsessed with her and frequently touched her in a sexual way. 3. On 20th February, according to details recorded on a CRIS dated the same day, LD flagged down a police car and alleged that she had been physically assaulted by [RD] and sexually assaulted by him the previous day. No statement at the time of writing had been located from LD in relation to these matters, but the record on the CRIS is to the effect that she alleged that she had been asleep on Mr. Davies' bed and woken up to find him standing over her with his hand inside her knickers, although she stated that he did not touch her vagina. She shouted at [RD] who denied that he was doing anything but she got up and left the premises. She stated that she did not report it at the time as she wanted to get away from him. 4. According to the details on the CRIS, [RD] was arrested and interviewed. He admitted common assault but denied sexual assault, claiming an alibi. That alibi was disproved. [RD] was re-interviewed and gave a different account of his movements. In the event, [RD] was cautioned for a common assault but no further action was taken on the sexual assault. 5. Having noted that LD had not returned calls to her mobile phone, a Detective Sergeant Rentle stated that he 'had considered the reliability of the IP's account and had noted that she had an antecedent history containing a large amount of dishonesty and is not of good character. 6. Taking all of the above into consideration, I am of the opinion that there is no likelihood of a successful prosecution in this case and will agree no further action.' ii. I note at this point that albeit that this case is only four years ago, now it would be the CPS and not the police who would be responsible for charging decisions and I suspect that given current thinking, it is unlikely that the reasoning adopted by the police in deciding not to charge would feature in any similar decision making process in the future. iii. Three weeks later, LD made a further allegation against [RD]. Again, she stated that he had touched her sexually whilst she was asleep, this time by fondling her breasts. Again, there was an argument between them following which she called the police. The defendant was arrested and admitted touching her breasts but said that he did so accidentally as he was waking her up. 1. As previously stated, the matter proceeded to trial but LD failed to attend and a not guilty verdict was directed. No information has been forthcoming as to why she did not attend on that occasion." 10. The argument before the judge and before us turns upon whether the proposed cross-examination of the complainant was to be "about any sexual behaviour with the complainant" within the meaning of section 41(1) of the 1999 Act . Alternatively if not about such behaviour should the questions have been permitted as evidence of bad character of a person other than a defendant, ie as evidence of false complaints by this complainant, pursuant to section 100 of the 2003 Act. 11. Applying principally the decision of this court in AM [2009] EWCA Crim. 618 to the question of the applicability of section 41 of 1999 Act, the judge asked herself whether there was a proper evidential basis for the assertion that the previous complaints had been untrue, so that there was a possibility that the proposed questions were not about previous sexual behaviour with LD at all. If there was no proper evidential basis to suggest that the previous complaints were untrue, the question about sexual behaviour fell within the ambit of section 41 . Questions would then only be permissible within the strict confines of that section. If there was such an evidential basis for the assertion of untruthfulness in making the earlier allegations the question was whether such evidence of potential bad character in making the allegations at all should be admitted under section 100 of the 2003 Act as important explanatory evidence, with substantial probative value, on an issue in the proceedings which is of substantial importance in the context of the case as a whole (We paraphrase section 100(1).) 12. In support of the submission that the proposed questioning did not fall within section 41 because there was a good evidential basis for asserting that the complaints were false, Mr Winship for the applicant relied before the judge upon the features recited by the judge at page 7F to H of the ruling in the following terms: i. "... firstly, that LD does not make a complaint to the police until the following day after she had then been physically assaulted; secondly, the police were sceptical and decided not to charge; thirdly, that she has a drug addiction; fourthly, that she has a potential motive to lie in that the defendant's account in interview was that she wanted money from him for drugs. She said that he sought to control her or get her to do what he wanted by withholding her methadone." 13. Mr Winship also relied on certain inconsistencies in LD's account of the first earlier incident as they appeared in the CRIS reports maintained by the police, in comparison to a statement that she made in respect of the second of the two earlier incidents which also touched upon however the first such incident. Mr Winship further relied upon LD's failure to attend at court at the trial of the charge arising out of the second incident. 14. The judge stated the law as she saw it to apply to the section 41 question in a passage at page 9A to G of her ruling on 6 February 2015: i. "in determining this issue and having read a number of authorities placed before me, the approach to be taken, it seems to me, is as follows: firstly, the defence must demonstrate a proper evidential basis for asserting that any previous allegation is untrue. A proper evidential basis is less than a strong factual foundation for concluding that the previous complaint was false but nevertheless, there must be some material to which the defence can point from which it could be properly concluded that the complaint was false. 1. Although in AM, it is expressed that asking whether there is a proper evidential basis for an assertion that a complaint is false requires the Judge to ask himself whether, on the material before him, depending on the answers given by the complainant, the jury could have been satisfied that the previous complaint was false. It is also clear that the Judge should not speculate about what could materialise if the matter was to go before the jury or to allow questioning on the basis that answers might be given which would then provide the basis for falsity. 2. As was said in R. v. D [2009] EWCA Crim. 2137 , the trial process cannot be used to investigate the truth or falsity of an allegation just because there is some material which could be used to try to persuade a jury that it is false. 3. Finally, in determining whether a proper evidential basis has been demonstrated, is a matter for the trial Judge exercising his or her judgment as opposed to discretion on a fact and case specific basis." 15. Mr Winship acknowledges that the learned judge's approach set out in that section and indeed in the whole of her ruling adopted the correct approach to the questions she had to ask. However he submits, and we will come to this, that she just reached the wrong conclusion having correctly directed herself as to principle. 16. On the submissions made to her the judge found that there was no proper evidential basis for asserting that the previous allegations were false. She said this in short. First, the delay, if such it was, was only one day. Anyway delay was by no means unusual in cases of this type. Secondly, the failure to prosecute an earlier complaint did not demonstrate falsity. Thirdly, the judge was unpersuaded as to the suggested inconsistencies in LD's earlier complaints. Fourthly, the fact of drug addiction and other bad character might touch upon credibility but did not give rise to a proper evidential basis of falsity. Otherwise all sexual complaints by persons of such a background would be approached on the basis that they were or might be false. On the other hand, countervailing those considerations, the judge found factors leading to credence of the allegations that had been made previously. First, [RD] was a convicted sex offender and had accepted a caution in respect of physical assault and in respect of a second allegation he accepted an accidental touching of the lady's breasts. 17. The judge also rejected an argument raised by Mr Winship as to the similarity of the allegations made against the other man and those made in this case, drawing an analogy with the rationale between the use of evidence of previous allegations of a similar kind to demonstrate propensity for the purposes of the rather different provisions of section 101(1)(d) of the 2003 Act. Such similarity with regard to allegations that did not result in a finding of guilt was, Mr Winship argued before the judge, hardly coincidental. The judge at page 12G to H of the transcript rejected the contention that the allegations were of striking similarity. She said at page 13E-G that the first two allegations involving touching the complainant while she was asleep was the "be all and end all of the incident". Here it was the Crown's case that it was the precursor of sustained sexual and physical attack, the only similarity was with regard to the initial touching in each case. 18. The judge's conclusion as a whole appears at a passage at page 13G onwards of the transcript: i. "In those circumstances, I am not persuaded that there is sufficient evidence of similarity to render the evidence of the previous allegations admissible either under section 100(1)(b) if bad character in that it does not have substantial probative value, or under section 41(3)(a) if it is assumed that the previous allegations are, or may be, true and, therefore, previous sexual behaviour, in that I am not satisfied that refusal of leave might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case." 19. On the present application, Mr Winship maintains in a qualified form the arguments that he advanced unsuccessfully before the judge and in his written grounds before the single judge of this court. He argues that section 41 of the 1999 Act did not apply here and there was a proper evidential basis for asserting the falsity of the previous allegations made by the complainant. He also submits that the circumstances of those allegations did have a substantial probative value in the context of this case, if necessary for the purposes of section 100 of the 2003 Act. He went so far in his oral submissions to suggest that the admissibility of the evidence followed inexorably from any perceived potential falsity in the allegations made. 20. However, his submissions are, as we say, rather more qualified than they were before the judge. He no longer relies upon the inconsistency point in respect of the complainant's past allegations as advanced to the judge and repeated in paragraph 39 of the grounds of appeal. Further, he does not rely upon the potential falsity of the second allegation in the March in the light of the acceptance by RD of the touching of the breasts of the complainant (again paragraph 39). However, he does continue to rely on what he calls in his written grounds "the combined effect of the circumstances in the February matter." He argues that the judge could not properly put aside the circumstances of that matter without having heard the complainant's answers. He argues that the judge gave too much weight to the factors supporting the truth of the allegation made by LD, for example she relied on the bad character of RD without giving similar weight to assertions that could be classed upon LD's background. He submitted to us orally that the question which one must ask is may the jury's decision on any count have been different if they had known about the previous complaint in the course of the trial process? On that question submissions would have been addressed to the jury in the light of answers that had been given by the complainant to the questions put. Mr Winship argues in that context, that the proposed cross-examination would have been a properly targeted line of questioning that might have revealed a tendency to make false allegations. It would not have been a merely speculative inquiry as to the complainant's sexual history generally. He relies again on what he says to be the significance of the manner in which the incidents were said to have started, even if the second incident was said to have developed in an even more serious manner after the initial incident of touching. On the alternative hypothesis, that the matter fell to be considered under section 100 of the 2003 Act, Mr Winship argued that the previous incidents had an impact upon the probative value of the previous complaints and would have had substantial importance for the case as a whole. 21. In our judgment, carefully formulating in advance, as these submissions were, they do not give rise in fact to realistic grounds for considering that the convictions in this case were unsafe. We consider, as Mr Winship accepts, that the judge correctly directed herself as to the applicable law and conspicuously and carefully considered the features of the case that were relevant to the issues. In contrast to the case of AM , the evidential basis for alleging that the complaints were false were rather different. In AM the features tending to show falsity were rather starker than here -- see the summary of them at paragraph 2 5 of the judgment of the court given by Dyson LJ (as he then was). 22. We do not consider that the judge dismissed the relevant features urged upon her, as being of no consequence, or that this was a case in which the judge should have left the questioning to proceed to see what emerged from the complainant's answers as was found to be the position in AM . The judge applied the correct principles and found there was no proper evidential basis to allege falsity of the earlier allegations and found that the material did not justify permitting the cross-examination proposed on the alternative basis that the question fell to be answered under section 100 of the 2003 Act. In our judgment she was entitled to reach those conclusions, and indeed was right to do so, and to rule in her discretion as she did. 23. For those reasons, in spite of Mr Winship's attractive submissions, we refuse the renewed application.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/597/data.xml

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[2017] EWCA Crim 2060

EWCA_Crim_2060

crown_court

No: 201704682/A3 Neutral Citation Number: [2017] EWCA Crim 2060 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 16 November 2017 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE CHEEMA-GRUBB DBE RECORDER OF MAIDSTONE (HIS HONOUR JUDGE CAREY DL) (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - R E G I N A LEWIS GEORGE SHALLCROSS - - - - - - - - - - - - -

No: 201704682/A3 Neutral Citation Number: [2017] EWCA Crim 2060 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 16 November 2017 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE CHEEMA-GRUBB DBE RECORDER OF MAIDSTONE (HIS HONOUR JUDGE CAREY DL) (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - R E G I N A LEWIS GEORGE SHALLCROSS - - - - - - - - - - - - - - - - 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 J Polnay appeared on behalf of the Attorney General Mr D Matthews appeared on behalf of the Offender - - - - - - - - - - - - - - - - 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: Lewis Shallcross was charged on indictment with three offences. On count 1 he was charged with burglary, contrary to section 9(1)(b) of the Theft Act 1968, the allegation being that on 8th May 2016 he entered a house in Plymouth as a trespasser, and there attempted to inflict grievous bodily harm on a young woman called Ms Sheridan, then aged 19. On count 2, he was charged with intimidation, contrary to section 51(1) of the Criminal Justice and Public Order Act 1994, the allegation being that between 3rd and 6th March 2017, knowing or believing Ms Sheridan was a witness in proceedings for an offence, he did an act, "namely made verbal threats and rode past her home address which intimidated and was intended to intimidate [Ms Sheridan] intending thereby to cause the course of justice to be obstructed, perverted or interfered with." On count 3 he was charged with an offence, contrary to section 2 of the Road Traffic Act 1988, of dangerous driving of his motorcycle on 4th March 2017. He pleaded not guilty to all these charges. His trial in the Crown Court at Plymouth was initially listed for 22nd February 2017 but could not proceed on that day for want of court time. It was later re-listed for hearing on 18th September 2017. 2. On the third day of the trial, at the conclusion of the prosecution evidence, Lewis Shallcross changed his plea on count 3 to guilty, albeit on a limited basis which the prosecution did not accept. His trial continued on the other charges, his defence being one of alibi, and the jury subsequently convicted him of counts 1 and 2. He invited the court to proceed immediately to sentence and the recorder who had presided over the trial rightly decided that it was not necessary to adjourn to obtain a pre-sentence report. 3. He sentenced Lewis Shallcross as follows. On count 1, 4 years 6 months' imprisonment; on count 2, 6 months' imprisonment, concurrent; on count 3, 7 days' imprisonment concurrent, with an order that Lewis Shallcross be disqualified from driving for 5 years and until he passed an extended driving test. All those sentences being concurrent, the total was 4 years 6 months. 4. Her Majesty's Solicitor General now applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer that sentence to this court as unduly lenient. We grant leave. 5. We are very grateful to both Mr Polnay, on behalf of Her Majesty's Solicitor General and Mr Matthews, on behalf of Lewis Shallcross, for their written and oral submissions which we have found very helpful. 6. Lewis Shallcross is now aged 22. He had been convicted on two previous occasions. In 2014, when he was aged 19, he pleaded guilty to offences of dangerous driving and driving without due care and attention. He was made subject to a community order and disqualified for 18 months and until he had taken an extended driving test. He never has taken that extended test and so was disqualified from driving at all times material to this case. Then in July 2016 he pleaded guilty to a public order offence for which he was fined. 7. The facts of the present case show a marked escalation in the seriousness of his offending. We summarise the offences largely on the basis of what is set out in the Reference, starting with count 1. At the end of March 2016 Ms Sheridan agreed to look after a bag containing £5,000 in cash overnight for Lewis Shallcross. She stated that the cash was taken by a man referred to as "Chris". She said that when she told Shallcross about this, he stated that he would sort the matter out with Chris. 8. On the evening of Saturday 7th May 2016 Ms Sheridan went into the city centre for an evening out with some female friends. She bumped into Lewis Shallcross outside a nightclub. He said: "If there wasn't cameras here, I'd beat you up right now". He added "you're lucky" a number of times. There was no further contact between them in the city centre that night. Ms Sheridan and her friends went back to her house at about 4.00 am on the Sunday. She went to bed, sharing the bed with one of her friends, and fell asleep. 9. As she slept Lewis Shallcross gained entry to Ms Sheridan's house. He went into her bedroom. He picked up a television described to us as being an old cathode ray television which was both large and heavy. He took it off the chest of drawers on which it was standing and dropped it on Ms Sheridan's head. 10. Ms Sheridan was taken to hospital. She was found to have soft tissue swelling and bruising to her face, overlying both cheeks and the centre of her forehead. Her jaw was tender on the right side, a tooth had been chipped and there was a superficial laceration to the bridge of her nose. Her wounds were cleaned and the laceration was closed with steristrips. 11. When the trial was adjourned in February 2017 Shallcross' bail was renewed, with a specific condition that he must not contact Ms Sheridan either directly or indirectly. Counts 2 and 3 were offences committed whilst on bail and in breach of that condition. 12. On 4th March 2017, as Ms Sheridan was being driven by her father to a friend's house in Plymouth, they had a chance encounter with Lewis Shallcross, who was riding a motorcycle. He pulled alongside Ms Sheridan's vehicle and shouted: "You're fucking dead". He then tailgated Ms Sheridan's vehicle in a dangerous manner before pulling away at speed, performing a wheelie as he did so. He pulled onto a side road. Unintentionally, the vehicle in which Ms Sheridan was a passenger took the same route. There was an altercation outside a shop when two of Shallcross' friends ran towards Ms Sheridan's vehicle. Her father drove into a residential street in an effort to lose Shallcross. However, when he returned to his route, Shallcross was again present and repeatedly shouted "come on" towards Ms Sheridan. He then rode his motorcycle away along the pavement at speed. His driving was described by an independent witness who saw it as "manic". 13. On the following day, 5th March, Lewis Shallcross rode his motorcycle to the area of Ms Sheridan's home address. She was not present, but her father gave evidence that Shallcross shouted to him: "Be here in an hour, I'll be back in an hour". 14. The court was informed that as a result of the various offences Ms Sheridan had felt compelled to leave not only her home but also the city in which she grew up. In her evidence at trial, she gave some brief details of the impact of the assault upon her but became visibly upset when asked to describe her injures. 15. The friend who had been beside her at the time of the count 1 offence said that the incident had left her totally traumatised. She kept thinking about what could have happened to her as well as to Ms Sheridan. Her general practitioner had prescribed medication. She had received counselling. She had to take sick leave from her job with consequent loss of earnings. 16. Mr Matthews, who represented Lewis Shallcross at trial, as he does before this court, accepted that the burglary offence came within the most serious category in the sentencing guideline applicable to burglary offences and that it had a number of aggravating features. In mitigation, he relied on Shallcross' young age, on the absence of any previous offence of a similar kind or of comparable seriousness, and on the fact that, by good fortune, no very serious injury had in fact been caused to Ms Sheridan. Mr Matthews submitted that although the jury had found proved an intention to cause grievous bodily harm, that intention can only have existed for a very short time, because the use of a television as a weapon had not been followed by any further violence. As to counts 2 and 3, Mr Matthews emphasised that events had begun with a chance encounter rather than anything planned by Shallcross. The recorder accepted all of those submissions. 17. In his sentencing remarks the recorder said this at page 2D: "You knew that your victim was present in that home when you broke in, you knew that she would be asleep in bed. At the time you attacked her, she was asleep. You used a weapon, a heavy TV, deliberately to inflict serious bodily harm upon her. Those are the most serious aggravating circumstances that I can contemplate in an offence such as this." A little later at page 2G, he said: "In my judgment the aggravating features in this case necessitate me to impose a custodial sentence, in excess of the starting point under the guidelines, and in all the circumstances of the case, given the aggravating features, which I have mentioned, the very minimum sentence that I can pass upon you, for the offence of burglary, is one of 4½ years' imprisonment." He then went on to impose the concurrent sentences to which we have referred in respect of counts 2 and 3. 18. For Her Majesty's Solicitor General, Mr Polnay submits that both the individual sentences and the total term of imprisonment were unduly lenient. In relation to the offence of burglary, charged in count 1, it was conceded, as we have indicated, that that was a category 1 offence under the guideline in relation to burglary offences. Mr Polnay points out that for such an offence the guideline gives a starting point of 3 years' custody and a range from 2 to 6 years. The guideline permits an upward adjustment from the starting point where there are aggravating features and Mr Polnay submits that here there were several: a weapon was used at night, with intent to cause grievous bodily harm, to inflict injury on a woman who was particularly vulnerable because she was asleep and who had to leave her home as a result. 19. Given the terms in which the recorder had described the count 1 offence in his sentencing remarks, in the passage which we have quoted, Mr Polnay submits that the interests of justice require the imposition of a sentence in excess of that provided for by the offence range of the Definitive Guideline. But Mr Polnay also invites attention to the guideline for the offence of wounding with intent. He points out that the jury here must have been sure that Lewis Shallcross intended to cause grievous bodily harm and it was not in dispute that he did in fact cause some injury. Mr Polnay submits that in terms of this guideline Shallcross would arguably be guilty of a category 1 offence, because a weapon was used and the victim was particularly vulnerable as she was asleep. The starting point would therefore be 12 years' custody and the range 9 to 16 years. Even if the offence was placed into category 2, the starting point would be 6 years and the range 5 to 9. 20. We should emphasise that the learned recorder had not been invited to take this approach. His attention had been drawn only to the burglary guideline. 21. As to counts 2 and 3, Mr Polnay submits that the intimidation cannot be regarded as an isolated act as it took place over two days. The first encounter was by chance, but the second occasion must have been premeditated. There was no actual violence but the threats included a threat to kill, and on the first occasion the circumstances included dangerous driving on the public highway by an offender who has a previous conviction for that type of offence. The impact of the offences on Ms Sheridan was substantial. Moreover, the offence was committed in breach of conditions of bail, in relation to a serious offence against the same victim. 22. Mr Polnay invites attention to the decision of this court in R v Smith [2011] 2 Cr App R(S) 118. He submits that the sentence on count 2 was too short, and ought in any event to have been ordered to run consecutively to the burglary sentence. He accepts that it was correct in principle for the sentence on count 3 to be concurrent with that on count 2, but submits that a term of 7 days' imprisonment simply fails to mark the true gravity of the offence. He reminds us, as is now common ground, that the learned recorder fell into error in ordering an extended driving test. Lewis Shallcross was already subject to such an order from his earlier conviction 2014 and it was not appropriate to make a further order to the same effect. 23. Mr Matthews, for his part, emphasises that the recorder was in the best position to assess the overall criminality having presided over the trial. He suggests that that is a particularly significant feature here, because there were some curious features of the evidence. He points out that the prosecution did not charge Shallcross with an offence wounding with intent, and submits that it would therefore be inappropriate to look at anything other than the guideline for the offence which was charged, namely burglary. He asks the court to note that there had been no incidents during the initial lengthy period of remand on bail, and relies on that to support his submission that counts 2 and 3 should be viewed as Shallcross' instinctive reaction after a chance encounter. He emphasises the mitigating features. which we have mentioned, of comparatively young age and the absence of any comparable previous conviction. He submits that the total sentence did properly reflect the overall seriousness of the offending. 24. We have reflected on those submissions. We start by considering the application of the Sentencing Guideline for burglary offences. We bear in mind that Lewis Shallcross is a young man, who does not have a serious record of previous convictions, has not previously committed an offence similar to this burglary, and importantly, has not previously received a custodial sentence. We nonetheless have no doubt that the sentence imposed on count 1 was unduly lenient. As the recorder himself observed, this was a very serious example of this type of offence. It involved a vicious attack on a sleeping woman in her own home. Shallcross entered her home as a trespasser intending to cause her grievous bodily harm, and it was only a matter of good fortune that her physical injuries were much less serious than they might have been. The psychological consequences for Ms Sheridan were severe. Her friend was also seriously affected. 25. In our view, such an offence merited, after trial, a sentence in excess of four-and-a-half years' imprisonment, even if it stood alone. 26. As to counts 2 and 3, even accepting that the initial encounter with Ms Sheridan was not planned by Shallcross, this was serious offending which threatened the integrity of the criminal justice process. The jury were sure that the count 2 offence of intimidation., was committed with intent to intimidate the victim of his earlier offence, who was of course a key witness against him, and with intent to pervert the course of justice. The offence of dangerous driving was not the most serious example of its kind, but it was a type of offence which he had committed before and it was committed as part of his attempt to intimidate a witness at a time when he was disqualified from driving. We take into account that the sentences on counts 2 and 3 were ordered to run concurrently, not only with each other but also with the sentence on count 1, notwithstanding that they were committed several months after that offence and in breach of bail. Accordingly the sentence on count 1 reflects the overall criminality. With all respect to the recorder that total sentence was, in our judgment, much too low. 27. We now turn to the aspect of the case which was not raised before the recorder, namely the submissions made by Mr Polnay as to whether it is appropriate, in circumstances such as these, for a sentencing court to look at the guideline for offences of assault as well as the guideline for offences of burglary. 28. The Sentencing Council's Definitive Guideline on sentencing for burglary offences contains a section devoted to domestic burglaries such as this. It is an offence-specific guideline which, in accordance with the Sentencing Council's duty under section 121 of the Coroners and Justice Act 2009, describes different categories of offence. Section 125 of that Act provides in material part as follows: "Sentencing guidelines: duty of court (1)Every court— (a)must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and (b)must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so. (2)Subsections (3) and (4) apply where— (a)a court is deciding what sentence to impose on a person ('P') who is guilty of an offence, and (b)sentencing guidelines have been issued in relation to that offence which are structured in the way described in section 121(2) to (5) ('the offence-specific guidelines'). (3)The duty imposed on a court by subsection (1)(a) to follow any sentencing guidelines which are relevant to the offender's case includes— (a)in all cases, a duty to impose on P, in accordance with the offence-specific guidelines, a sentence which is within the offence range, and (b)where the offence-specific guidelines describe categories of case in accordance with section 121(2), a duty to decide which of the categories most resembles P's case in order to identify the sentencing starting point in the offence range; but nothing in this section imposes on the court a separate duty, in a case within paragraph (b), to impose a sentence which is within the category range. (4)Subsection (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P's case." 29. The offence of burglary, contrary to section 9 of Theft Act 1968, may be committed in a number of different ways. Summarising that section, the offence may be committed by a person who enters a building as a trespasser, with intent to steal, to inflict grievous bodily harm or to do unlawful damage. It may be committed by a person who, having entered a building as a trespasser, steals or attempts to steal, or inflicts or attempts to inflict grievous bodily harm. It was common ground, in the court below, that the category in the domestic burglary guideline which most resembles Lewis Shallcross' case is category 1. However, that guideline seems clearly to have been drafted with a focus on the more familiar type of offence, in which the burglar steals or intends to steal. The factors relevant to the assessment of harm and culpability are almost all directly related that type of offence. Although the factors identified as indicating greater harm include "violence used or threatened against a victim", that seems to relate primarily to an offence of burglary and theft, in the course of which violence is used or threatened against the householder. The same may be said of one of the factors indicating higher culpability: "knife or other weapon carried (where not charged separately)". 30. Moreover, the levels of sentencing which the guidelines establishes do not appear to have been intended to take into account the inflicting of or attempt to inflict grievous bodily harm. As we have noted, the range for a category 1 domestic burglary goes up to 6 years. In marked contrast there is a separate section of the same guideline which is concerned with offences of aggravated burglary, that is offences of burglary in which the burglar has with him a weapon of offence, a firearm, imitation firearm or explosive. For a category 1 offence of that type the guideline has a starting point of 10 years and a range from 9 to 13 years. We have already referred to the levels of sentencing established by the guideline for offences of wounding with intent. 31. Of course, both aggravated burglary and wounding with intent are offences which carry a maximum sentence of life imprisonment, in contrast to the maximum sentence of 14 years' imprisonment for domestic burglary. We nonetheless think it clear that the domestic burglary guideline was not drafted with a focus on the type of burglary with which we are concerned in this case. 32. That is not, of course, to say that the burglary guideline is irrelevant in a case of this nature. On the contrary, section 125 of the 2009 Act plainly requires the sentencer to follow it, unless satisfied that it would be contrary to the interests of justice to do so. But as this case shows, there may be cases in which the conduct properly charged as burglary, contrary to section 9(1)(b) of the Theft Act could also be charged as actual or attempted wounding with intent, or causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1868. The difference between the possible charges would be that only the burglary charge would require proof of the element of entry into a dwelling as a trespasser, an element which would plainly be a serious aggravating feature of a section 18 offence. In some circumstances it will be contrary to the interests of justice for a burglar who inflicts, attempts or intends grievous bodily harm to be sentenced less severely than an offender whose violence or attempted violence does not involve trespass in a home. It follows, in our judgment, that there will be cases in which the guideline for offences of violence may also be relevant to the offender's case. 33. The conclusion we draw is that in a case of burglary, in which the offender inflicts or attempts to inflict or intends to inflict grievous bodily harm, the sentencer is required to follow the burglary guideline. But in doing so, and in particular in considering whether the interests of justice require a departure from the sentencing range, the sentencer is entitled to consider relevant features of the guideline for offences of assault. In doing so the sentencer must keep very much in mind the differing maximum sentences for the different offences. The sentencer must also take particular care to ensure that the offender is not sentenced as if convicted of a more serious offence, which could have been but was not charged. 34. Applying those principles to the present case, we come to the following conclusion. The offence of burglary was so serious that viewing it in isolation, it would be contrary to interests of justice for the sentence to be limited to 6 years' custody. Having regard to the terms of the indictment the jury must have been sure that Lewis Shallcross not only intended to inflict grievous bodily harm but attempted to do so. It is therefore permissible, in our view, to have regard to the level of sentencing established by the assaults guideline, suitably adjusted to reflect the fact that Shallcross was guilty of attempting to cause grievous bodily harm rather than actually doing so. 35. Making every allowance for his young age and bearing in mind that the physical injury actually caused fell well below the grievous bodily harm which was intended, we take the view that if that charge had stood alone, a sentence of less than 7 years' imprisonment after trial could not be justified. 36. The other offences add significantly to the overall criminality, in particular, because they were committed on bail and in breach of a bail condition specifically designed to protect the victim of his earlier offence. Taking those offences together but in isolation from count 1, they would merit, after trial, a sentence of 18 months' imprisonment. In principle, the sentencing for those two offences should be consecutive to the sentence on count 1. 37. We have very much in mind the principle of totality and for that reason alone, we make a reduction in each of the sentences we have indicated as appropriate, had certain offending been viewed in isolation. 38. We must make a consequential adjustment to the length of the period of disqualification from driving, applying the principles set out in R v Needham & Ors [2016] EWCA Crim 455 ; [2016] 2 Cr App R(S) 26. The appropriate discretionary period is two-and-a-half years. To that must be added an extended period in respect of count 3 of 3 months and an uplift, in respect of counts 1 and 2, of 3 years 1 month, making a total period of disqualification of 5 years 10 months. As we have indicated it is not appropriate also to require an extended driving test. 39. In those circumstances, we quash the sentences imposed below as being unduly lenient. We substitute for them the following: on count 1, 6 years' imprisonment; on count 2, 9 months' imprisonment consecutive to the sentence on count 1; on count 3, 6 months' imprisonment concurrent with the sentence on count 2 and an order the offender be disqualified from driving for 5 years 10 months. 40. Thus the total sentence of imprisonment is increased to one of 6 years 9 months. 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

2017_11_16-4106.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2060/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2060

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[2009] EWCA Crim 20

EWCA_Crim_20

supreme_court

Neutral Citation Number: [2009] EWCA Crim 20 Case No: 200801492 B3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT HIS HONOUR JUDGE TAIN Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/01/2009 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE GROSS and MR JUSTICE ROYCE - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - Z Appellant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down

Neutral Citation Number: [2009] EWCA Crim 20 Case No: 200801492 B3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT HIS HONOUR JUDGE TAIN Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/01/2009 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE GROSS and MR JUSTICE ROYCE - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - Z Appellant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Isobel Ascherson for the Appellant Gillian Etherton (instructed by the CPS ) for the Respondent Hearing date : 11 December 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Stanley Burnton : Introduction 1. This is another case in which the Court of Appeal has to consider what are probably unintended and unanticipated consequences of the hearsay provisions of the Criminal Justice Act 2003 . 2. On 19 February 2008 at the Crown Court at Lewes before His Honour Judge Tain and a jury the Appellant was convicted of one count of indecent assault (count 1) and four counts of rape (counts 2-5) contrary to the Sexual Offences Act 1956 . On 7 April before the same judge he was sentenced to a total of 14 years’ imprisonment. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003 , he was required to comply with the provisions of Part 2 of the Act (Notification to the police) indefinitely. 3. He appeals against his conviction with leave of the single judge, restricted to the decision of the trial judge to admit hearsay bad character evidence. The facts 4. The detailed facts of the case are not material to the issues raised on this appeal. This is an historic rape case. The complainant gave evidence that between 1985 and 1989, when she was aged between 9 and 13, the Appellant, a frequent visitor to her family home, regularly raped her. The counts in the indictment were sample counts to reflect the rapes and indecent assaults that he was alleged to have committed. 5. There was additional evidence called by the prosecution, broadly supportive of the complainant’s, and in one case directly supportive. 6. The Appellant’s case was that he had never raped or indecently assaulted the complainant. 7. At the beginning of the trial, the prosecution applied to adduce hearsay evidence of the Appellant’s bad character. For present purposes, it is sufficient to refer to the evidence concerning a lady to whom we shall refer as D and that concerning the Appellant’s former wife, to whom we shall refer as Mrs Z. D had alleged that she had been sexually abused and raped by the Appellant when she was young. Mrs Z had alleged that he had raped her. D was unwilling to give evidence, and had explained why to the prosecution. Mrs Z was dead. The prosecution relied on sections 101 , 114 and 116 of the Criminal Justice Act 2003 . The defence objected to the admission of this evidence. 8. Ruling that the prosecution would be permitted to adduce this evidence, the judge said: “[This] is a straightforward application by the Crown in respect of bad character; though of course in the nature of things, in this instance it has attached to it an application, effectively, for hearsay rulings … so they are a composite of the two applications, all of which fall to be dealt with under the Criminal Justice Act 2003 , and to that extent are fairly conventional applications dealing with issues that are found fairly commonly in this type of case, particularly the historic type of case.” The judge referred to the basis of the Crown's application to adduce the evidence of the Appellant's bad character, namely that it provided important explanatory evidence, went to propensity, and also corrected a false impression given by the Appellant, namely, that he was a perfectly ordinary, respectable, straightforward family man. He summarised the objections of the defence, that the allegations of D could have been dealt with by live evidence, and that the allegations of bad character had to be proved so as to make the jury sure, and that the evidence proposed was incapable of satisfying that requirement. The judge continued: “As far as I'm concerned, the position is, on the face of it, straightforward and I propose to deal with it in the following way. I have no disquiet about the evidence in relation to the alleged improper behaviour towards [D]. It seems to me that is a perfectly straightforward case that can properly be adduced, under the provisions referred to, to enable the jury to be aware that at the same time there was a similar type of allegation being made by a different person, and on the grounds made by the Crown. That will then, in due course, be followed by appropriate observations by defence counsel to the jury about it, and by me, assuming we get to that stage, in directions relating expressly to the reservations that they might have in regard to hearsay evidence.” 9. As a result of this ruling, a doctor gave evidence that in 1993 D had made an allegation of repeated sexual abuse, falling short of rape, when she was a young girl. She had named the appellant as the perpetrator. In addition, the officer in the case testified that during the investigation into these matters police spoke to D, who said that the appellant had raped her or had sexual intercourse with her on three occasions. She had not wished to make a formal complaint about these allegations. The officer in the case also gave evidence that the police had been called to the home address of Mrs Z on 5 August 1994. The Appellant had been visiting and a siege situation had developed involving him and his daughter. Ultimately the Appellant was sedated by his doctor. Mrs Z subsequently made an allegation of rape against the Appellant. Her statement had been recorded contemporaneously in social services' records. She had not wanted to make a formal complaint of rape to the police, and her allegation was never pursued. Mrs Z had died some years before the trial. 10. The Appellant gave evidence denying the allegations made by the complainant and those made by D and his former wife, and he called witnesses. 11. In his summing up, the judge referred to the hearsay evidence concerning D and Mrs Z and said: “Why have you been given this information, which is separate from the present matters? You have been told of these matters for two reasons. In the first place, they may be of assistance to you in deciding whether the defendant has a propensity for committing acts of sexual abuse generally or in relation to children. In the second place, the defendant is a person who in his interview, which you have before you, portrayed himself as somebody who would not do such a thing. You will need to determine whether he is giving a false impression there, and it may be that this information could be of assistance to you in deciding that question. It is important to keep in mind that those other allegations are denied by the defendant; they never came to the court, resulting in a finding; and that information is delivered to you otherwise than from the original complainants, something about which I will comment further in a moment. How may you use this information? You may use it to assist you to resolve the issues mentioned already , but you should have it firmly in your mind that this information alone does not prove that the defendant is guilty of the present matters, and you must not find him guilty because he has had unproven allegations made against him in the past. If you regard it as appropriate, and if you regard the Crown case as being a strong one independently of this information, then you may regard this information as supportive of the Crown case against Mr Smith. Otherwise, you must not take it into account that all.” 12. The judge then gave a full conventional hearsay direction, concluding: “Although it is for you to decide what weight, if any, you attach to the above mentioned evidence, you should examine it with particular care, bearing well in mind that it does have certain limitations which I must draw to your attention. You have not had the opportunity of seeing and hearing either of these people in the witness box and of making your assessment of them as witnesses. When you do see and hear eyewitness you may get a much clearer idea of whether that person's evidence is honest and accurate. [D]'s and [Mrs Z]'s statements were not made or verified on oath. Their evidence has not been tested under cross-examination, and you have not had the opportunity of seeing how their evidence survived this formal challenge. Their complaints form only a part of the evidence and it must be considered in the light of all the other evidence in the case. He must reach your verdicts having considered all of the evidence.” The parties’ contentions 13. Before this Court, Miss Ascherson on behalf of the Appellant repeated the submissions she had made to the judge when objecting to the admission of this hearsay evidence. She submitted that its importance and prejudicial effect were such as to require the allegations to be included as counts in the indictment; at the very least the evidence relating to D should have been given by her in person, so that the Appellant could have challenged it; otherwise, it should have been excluded. The difficulties of the Appellant in challenging allegations relating to events long past were compounded by the difficulties of challenging hearsay evidence. She relied on what Toulson LJ had said in McKenzie [2008] EWCA Crim 758 at paragraph 25: “It has also to be borne in mind that if the allegations of misconduct have not given rise to any previous investigation, the evidence is liable to be stale and incomplete. The defendant may also be prejudiced in trying to meet it, for lapse of time and inability to pinpoint details (e.g. of time and place) may result in such allegations being hard to repel and the jury may be left thinking that there is no smoke without fire.” The evidence of the allegation of rape made by Mrs Z should not have been admitted: it was no more than an untested allegation, and of less direct relevance. Miss Ascherson submitted that this evidence could only be relevant if the jury were sure that the allegations made by D and Mrs Z were true. The hearsay evidence admitted by the judge was not capable of satisfying this burden; and in any event the summing up was defective in not making it clear to the jury that this evidence was irrelevant unless they were sure that the allegations were true. Lastly, Miss Ascherson submitted that the trial had been unfair and had infringed the Appellant’s rights under Article 6 of the European Convention on Human Rights. 14. For the prosecution, Miss Etherton submitted that section 114(1)(d) permitted the hearsay evidence of bad character to be admitted. This provision was intended to permit hearsay evidence to be adduced in cases other than those falling within section 116. D had refused to give evidence for good reasons that the Court should understand: she wanted to put her abuse at the hands of the Appellant behind her; she did not want to relive her experiences. Miss Etherton submitted that it was unnecessary for the bad character allegations to be charged in the indictment, but accepted that it was necessary for the prosecution to prove them so that the jury were sure that they were true. This hearsay evidence was credible and of high quality and the jury could have been sure that it was true: D’s allegations, in particular, had not been made in order to vilify the Appellant, but in private, to a doctor, who had a contemporaneous record of what she had told him. The evidence of the allegations made by Mrs Z had been properly admitted in order to rebut the impression sought to be made by the Appellant that he was a family man and a kind and sympathetic partner and father. The summing up, read as a whole, made it clear to the jury that they could take the hearsay allegations into account only if they were sure that they were true. The trial had been fair and the Appellant's conviction was safe. Discussion 15. It is convenient to consider first the evidence of the allegations made by D, since those were potentially far more damaging to the defence than the allegation of rape made by Mrs Z. 16. If D had given live evidence, there could have been no complaint as to its admission. Her evidence was clearly relevant to establish propensity and to correct the impression given by the Appellant of a good family man. The problems that have arisen in this case arise more from the admission of the allegations made by D (and, as we shall see that made by Mrs Z) as hearsay evidence. 17. In relation to the evidence concerning D, the only applicable provision on which the prosecution could and did rely was section 114(1) (d) of the Criminal Justice Act 2003 . The section is as follows: (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if– (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible. (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)– (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it. 18. It can be seen that subsection (1) comprehensively restricts the circumstances in which hearsay evidence may be admitted in criminal proceedings to those set out in its four paragraphs. Paragraph (d) is the only paragraph having positive substantive effect: the other paragraphs of subsection (1) simply refer to other provisions or rules of law permitting such evidence to be admitted. Paragraph (d) is unhelpfully drafted. It has been referred to as creating a residual power or as a safety valve; considered in isolation, it might be given a wide or a narrow application. 19. However, section 114(1) (d) must be construed and applied in its statutory context. In particular, in a case such as the present, where the evidence in question is of a statement making an allegation of misconduct, it must be read together with section 116. That section is narrowly drawn. It is headed “Cases where a witness is unavailable”, which would not include the case of D. The conditions for the admission of hearsay under section 116(1) are set out in subsection (2): “(a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.” None of these applied to D. 20. In our judgment, section 114(1) (d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented. As Scott Baker LJ said in O’Hare [2006] EWCA Crim 2512 at paragraph 30: “We think it important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.” But section 114(1) (d) should not be so narrowly applied that it has no effect. It follows that there will be cases in which hearsay evidence may be admitted under it in circumstances in which it could not be admitted under section 116, as in Isichei [2006] EWCA Crim 1815 , where it was admitted “as part of the story of a common sense series of events, the one leading from the other” and Xhabri [2005] EWCA Crim 3135 , [2006] 1 Cr. App. R. 26. Both of those were very different cases from the present: the hearsay statements admitted were part of the incidents that were the subject of the trials. 21. Section 114(2) contains a list of matters which it is mandatory for the court to take into account when deciding whether to admit hearsay evidence under subsection (1). Since these considerations are mandatory, the judge should, when giving his ruling on an application under subsection (1)(d), make it clear that he has taken them into account. This does not mean that he must refer to and express a conclusion on each of them. In Taylor [2006] EWCA Crim 260 , Rose LJ said: “38 As it seems to us, the first and crucial issue raised by this appeal is as to what is meant in s. 114(2) by the words ‘the court must have regard to the following factors’. If Mr Sinclair is correct and those words denote an obligation on a trial judge to embark on an investigation, resulting in some cases in the hearing of evidence, in order that he may reach a conclusion established by reference to each of the nine factors, it is apparent that trials are likely to be considerably elongated. Proper investigation of each of those factors, if carried out in that way, may well be a very lengthy process. 39 But do the words in the section require that course to be followed? In our judgment, they do not. They do not impose an obligation on the judge to reach a conclusion. What is required of him is the exercise of judgment, in the light of the factors identified in the subsection. What is required of him is to give consideration to those factors. There is nothing in the wording of the statute to require him to reach a specific conclusion in relation to each or any of them. He must give consideration to those identified factors and any others which he considers relevant (as expressed in s.114(2) before the nine factors are listed). It is then his task to assess the significance of those factors, both in relation to each other and having regard to such weight as, in his judgment, they bear individually and in relation to each other. Having approached the matter in that way, he will be able, as it seems to us, in accordance with the words of the statute, to reach a proper conclusion as to whether or not the oral evidence should be admitted.” 22. In R v Y [2008] EWCA Crim 10 , Hughes LJ said: 55. What is now s 114(1) (d) appeared in the Commission's draft bill in a slightly different form: ‘9. In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if the court is satisfied that, despite the difficulties there may be in challenging the statement, its probative value is such that the interests of justice require it to be admissible.’ 56. Although section 114(1) (d) as enacted does not contain the cautionary reminder, which draft clause 9 did, namely that the probative value of the out-of-court statement must outweigh the difficulties of challenging it before it will be in the interests of justice for it to be admitted, the statute as enacted is not less rigorous. That is because section 114(2) lists specific factors which must, together with any other relevant matter, be considered before addressing the question whether it is in the interests of justice for the hearsay statement to be admitted. … As this court explained in Taylor [2006] EWCA Crim 260 , section 114(2) does not mean that the Judge must hear evidence on, and make specific findings of fact about, each factor seriatim; but he must exercise his judgment in the light of consideration of all of them. Then, after those factors, and any other relevant to the particular case have been evaluated, the Judge must stand back and ask whether it is in the interests of justice that the statement be admitted. In doing so, he will of course remember that the statute does not render hearsay automatically admissible, and the reasons why it is not. Put broadly, they are that hearsay is necessarily second best evidence, and that it is for that reason much more difficult to test and to assess. The jury never sees the person whose word is being relied upon. That person cannot be asked a single exploratory or challenging question about what he said. Those very real disadvantages of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to the assessment of whether the interests of justice call for its admission. … 23. When he gave his ruling permitting the admission of the hearsay evidence of the allegations of D and Mrs Z, HH Judge Tain did not make it clear that he had taken into account the matters listed in section 114(2) . His error, in our judgment, was to treat the prosecution’s application as “fairly conventional” and “straightforward”. An application to adduce undisputed evidence of misconduct, such as admitted convictions for relevant crimes, would indeed be fairly conventional. An application to call as witnesses the victims of the defendant’s misconduct as evidence of his bad character might be straightforward. But in our judgment an application to adduce in evidence hearsay evidence of disputed serious misconduct as bad character evidence was most certainly not conventional, and it should not have been treated as straightforward. 24. If the judge had considered the matters listed in section 114(2) , he would have had to consider in particular paragraphs (a), (g), (h) and (i). As to (a), this evidence was of very considerable importance; if accepted by the jury, it would undermine the defence and point powerfully to a conviction. This made the other factors even more significant, and in particular (g). It is important to note that paragraph (g) refers to the inability of the witness to give evidence, not her reluctance or unwillingness, understandable though her attitude may be. That is consistent with the restrictions in section 116. Cases must be rare indeed in which such significant potentially prejudicial evidence as that of D should be admitted as hearsay where the maker of the statement is alive and well and able, although reluctant, to testify, and her reluctance is not due to fear (i.e., the condition in section 116(2)(e) is not satisfied). 25. The Court of Appeal will not readily interfere with a trial judge’s decision to admit evidence under section 114(1) (d). It will do so, in general, only if his decision is marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made. The Court will be more willing to interfere with his decision if he has not taken into account, or has not shown that he took into account, relevant matters listed in subsection (2). This is such a case. In our judgment, the judge clearly erred in admitting hearsay evidence of D’s allegations. In the present case, the reluctance or apparent but untested unwillingness of D to testify did not justify its admission. This was a case in which the restrictions on hearsay in section 116 were being circumvented. As we indicated in the preceding paragraph of our judgment, the effect of the admission of this evidence was potentially very damaging; and it was very difficult for the Appellant to deal with it other than by a simple denial. We need not consider what the position would have been if D had been served with a witness summons and refused to attend or to testify: that did not happen. 26. Furthermore, the judge did not make it clear in his summing up that the jury had to be sure that H’s allegations were true before they could take them into account. The references to "unproven allegations" and to "complaints" may well have led the jury to believe that they could take these allegations into account without first determining whether they were sure that they were true. Moreover, in many cases it may well be difficult for a jury to be sure of the truth of allegations supported only by hearsay evidence. In our judgment, therefore, the error made by the judge in allowing the evidence of H's allegations to be admitted in evidence by hearsay was compounded by the lack of an appropriate and clear direction requiring the jury to be sure that those allegations were true before taking them into account. 27. We are also troubled by the admission of the hearsay evidence concerning Mrs Z. Leaving aside the question whether it should have been admitted under sections 98 to 112, and focusing solely on its admission as hearsay, it satisfied the condition in section 116(2)(a). However, section 116(4), and in particular paragraph (b), fell to be considered. Moreover, since it was sought to admit it as evidence of bad character, it had to be sufficiently cogent for a reasonable jury to be able to be sure of its truth. Thus, if the judge was minded to admit the evidence under section 101 , he had then to consider whether the jury would reasonably be able to be sure of its truth. When he gave his ruling, he did not state whether he considered that they would be able to do so. In any event, however, as we have already stated, the judge in his summing up did not make it clear to the jury that this evidence could be taken into account only if they were sure of the truth of Mrs Z’s allegation. 28. Although, as we have mentioned, there was evidence other than that of the complainant that might have been viewed by the jury as supporting the prosecution case, Miss Etherton, wisely in our view, did not submit that the convictions could be regarded as safe if we concluded that the hearsay evidence of D’s allegations should not have been admitted, or if the direction to the jury as to D’s and Mrs Z’s evidence was defective. 29. It follows that the convictions were unsafe and must be quashed. 30. In these circumstances, it is unnecessary to consider the Appellant’s contentions under Article 6 of the Convention.

2009_01_23-1791.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/20/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/20

40e1596f193d275bbdc0f2241d47781bbd70371b74886e7f63f271e664d8f209

[2009] EWCA Crim 2165

EWCA_Crim_2165

crown_court

No: 200901590/A3 Neutral Citation Number: [2009] EWCA Crim 2165 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 5th October 2009 B e f o r e : LORD JUSTICE MOSES MR JUSTICE OPENSHAW HIS HONOUR JUDGE ROOK QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - R E G I N A v KELLY WILLIAMS - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street

No: 200901590/A3 Neutral Citation Number: [2009] EWCA Crim 2165 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 5th October 2009 B e f o r e : LORD JUSTICE MOSES MR JUSTICE OPENSHAW HIS HONOUR JUDGE ROOK QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - R E G I N A v KELLY WILLIAMS - - - - - - - - - - - - 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 Corrie appeared on behalf of the Appellant - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE OPENSHAW: On 4th March 2008 in the Crown Court at Croydon, following her earlier plea of guilty to an offence of being knowingly concerned in the fraudulent evasion of the prohibition on importation of a Class A controlled drug, namely cocaine, contrary to section 170(2) of the Customs & Excise Management Act 1979, Kelly Williams was sentenced by His Honour Judge Waller to 8 years' imprisonment. He also imposed a 2 year travel restriction order under section 33 of the Criminal Justice and Police Act 2001 . She appeals against only the travel restriction order by leave of the single judge. 2. The facts are as follows. On 21st October 2008 the appellant was stopped by customs officers as she passed through the Green Channel at Gatwick airport having arrived on a flight from a Trinidad. Her suitcases were searched. Hidden ingeniously in the metal frames there was a total of 2.21 kilogrammes of cocaine, at 70 per cent purity, with a street value of £186,000. 3. When interviewed the appellant denied any knowledge of the drugs but, as we have already said, later she pleaded guilty. 4. The appellant was aged 23. She is a United Kingdom national married to a Jamaican living in Jamaica. She has had one conviction for robbery in 2001, for which she was sentenced to an 18 month detention and training order. The judge in his sentencing remarks said that after a trial the sentence would have been 12 years' imprisonment, taking account of her plea the sentence he passed was 8 years' imprisonment. The judge also imposed a travel restriction order made for 2 years after her release. In dealing with that, he said merely this: "I make a travel restriction order for two years. That means for two years after your release you will not be allowed to travel abroad." 5. The appeal is directed only against the travel restriction order. It is argued that the risk of re-offending on release was not sufficient to justify a travel restriction order. Further, it is said that insufficient regard was had to the effect of the order, taking into account the fact that her husband was a Jamaican national living in Jamaica. 6. Travel restriction orders were introduced by section 33 of the Criminal Justice and Police Act 2001 . If a person is sentenced for a drugs trafficking offence to 4 years' imprisonment or more, it is the duty of the court to consider whether it would be appropriate to make a travel restriction order prohibiting the offender from travelling abroad. If an order is not made the court must give its reasons. It is true that there is no statutory requirement that a judge making such an order should state his reasons but it seems to us to be good sentencing practice that judges should always give reasons for the orders which they make. Valuable guidance was given by Newman J, giving the judgment of this court in case of R v Mee [2004] EWCA Crim 629 , in which he set out detailed considerations which the court should have in mind. He said that the section conferred upon the court a broad discretion, which must be exercised proportionately, in so far as it is appropriate to do so to reduce the risk of the defendant re-offending after release from prison. 7. In our judgment the imposition of the order imposing a travel restriction and the term to which it is to run requires a sharp focus on the facts of the case, and an assessment of the risk of reoffending of the particular defendant, after her discharge from prison, in this case having served a very long sentence. That is to be balanced against the adverse consequence of the order upon the defendant and her family life. The judge did not here undertake such an analysis. He found that she was a courier, but he did not make any finding of the risk of reoffending particularly after release from such a sentence. He did not suggest any reason for thinking that she would, or even could, again be selected as a courier. Furthermore, there was no detailed evidence based assessment of the impact upon her family life of being unable to visit her husband in Jamaica. For these reasons we think the travel restriction order must be quashed. To that extent the appeal is allowed.

2009_10_05-2089.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2165/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2165

ff705d5f28efd3f1115c124cff779d219cd3187797c9ecf4bf541efd57928a7a

[2003] EWCA Crim 1500

EWCA_Crim_1500

supreme_court

Case No: 2000 06154 Z3 Neutral Citation Number: [2003] EWCA Crim 1500 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT EXETER (Hon Mr Justice Tuckey) Royal Courts of Justice Strand, London, WC2A 2LL Date: 22nd May 2003 Before : LORD JUSTICE LONGMORE MR JUSTICE MITTING and MR JUSTICE BEATSON - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Underwood Reference under section 9, Criminal Appeal Act 1995 Appellant - - -

Case No: 2000 06154 Z3 Neutral Citation Number: [2003] EWCA Crim 1500 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT EXETER (Hon Mr Justice Tuckey) Royal Courts of Justice Strand, London, WC2A 2LL Date: 22nd May 2003 Before : LORD JUSTICE LONGMORE MR JUSTICE MITTING and MR JUSTICE BEATSON - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Underwood Reference under section 9, Criminal Appeal Act 1995 Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - N J ATKINSON Esq QC and M FARMER Esq for the Appellant M EDMUNDS Esq for the Crown Hearing date : 16th May 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Lord Justice Longmore 1. This is a reference by the Criminal Cases Review Commission. 2. On 16th March 1995 in the Crown Court at Exeter the appellant was convicted of murder and sentenced by Tuckey J to life imprisonment. 3. The Single Judge (Macpherson J) refused leave to appeal describing the case against the appellant as being overwhelming. On 19th November 1996 this court (Hobhouse LJ as he then was, Bracewell and Curtis JJ) refused his renewed application for leave to appeal against conviction. 4. In July 1994 the deceased, Terry McPherson, was killed in his flat in Teignmouth, by the infliction of repeated blows to the head. He was aged 54 and lived alone in the flat, on the second floor of 28 Northumberland Place. He suffered from schizophrenia and depression and was described as a loner. He was unemployed and in receipt of invalidity benefit of £70 a week, his rent being paid directly to the landlord. On 21st July he had signed a Housing Benefit claim form stating that he had £460 in bank accounts and £930 in cash. The last payment of benefit to him had been on 15th July when orders to the value of £588 were cashed. After his death £120 in notes was found in a pocket on the back of the door, and there was about £12 in loose change. He was last seen alive on 20th or 21st July, visiting a local shop, and his body was found on the afternoon of Monday 25th July. The prosecution case was that the appellant killed him in the course of robbing him, on the night of 23rd/24th July. 5. The appellant lived on his own in a ground floor flat at 28 Northumberland Place, and admitted to the police when interviewed that he knew the deceased and knew something of his illness, but said that he did not see him often. He had once been to his flat to look at a dripping tap. The appellant was also unemployed. He was in receipt of benefit of about £73 a fortnight, his rent being paid direct to the landlord. His last girocheque was received on 14th July. He did work from time to time for his landlord who had paid him a maximum of £2,200 by cheque or cash, between 10th October 1992 and 24th June 1994, when he gave him a cheque for £75, which included a loan of £30. It was admitted by the appellant that in the period immediately before 23rd July 1994 he owed nearly £300 on his electricity and water bills, and that he was borrowing odd amounts from friends in the Queensbury public house, where he was a regular customer. The barmaid there said that he seemed very short of money at that time. He told the police in interview that over the last 9 to 12 months he had been putting money away, including his earnings from his landlord, in order to go to Holland, and that he had saved £1,200. He said he borrowed money from time to time, but never touched these savings. 6. On Saturday 16th July 1994 Micky Lewis, a good friend of the appellant’s, came from Birmingham to stay with him in Teignmouth. On Tuesday 19th July the appellant’s cousins Fred Dickens and Sharon Underwood, with five children, came from Birmingham to see him, and pick up Micky Lewis. The appellant wanted to go back with them but there was not enough room in the car. They all spent the night at his flat and left the next day, Micky Lewis and Sharon, to whom it seemed that the appellant was much attracted, saying that they would come back at the weekend. 7. On Saturday 23rd July the appellant was in the Queensbury public house from about 1 pm onwards. He drank 4 or 5 pints of cider, and one or more vodkas with orange (but it was not suggested that he was drunk). He went out several times to telephone Birmingham, to see what had happened to Micky and Sharon, and seemed increasingly depressed that they had not arrived. Between 9 pm and 10 pm he went out. He asked someone to keep an eye on his unfinished drink, saying that he would be back in a minute, but he did not return. 8. It was admitted that at 12.50 am on what would now be Sunday 24th July he was in the Brunswick Street car park taking a taxi from Teignmouth to Exeter. (A map was produced showing that the car park, the Queensbury and 28 Northumberland Place, were all very close together.) The police, when they interviewed the appellant, asked what he had done between leaving the pub and then. He said that he had walked home, which took about two minutes. His flat door was ajar which was not usual but he had not thought anything of it. He told the police that he collected money (in about the sum of £1,200) which he had hidden under the floorboards of the cupboard under the stairs; he said he then closed the door but did not lock it, and went to the car park to get a taxi. He agreed that that did not account for the whole period and that he must have done something else, but said he could not remember what it was. 9. At about 1.30 am he took a taxi from the taxi rank in Exeter to the Gordano Services area on the M5, arriving there at about 2.40 am. The driver said that he was carrying a rolled up carrier bag with not much in it. At 3.30 am (not now carrying anything) he took a taxi from there to Birmingham city centre. At 5.30 am to 6 am he arrived at the house of Fred Dickens, who was very surprised to see him. He said that he was paying a courtesy visit, and had left his bag at a service station. He wanted to go for a drink, saying that he had about £1,000 which he had won on the horses. Later he went and bought some new trousers because he said that the zip on his jeans was broken. From about 11 am onwards he spent the day in various pubs with various relations who joined him. He gave some of them a total of £400 to buy themselves drinks, saying (again) that he had won money on the horses. At trial that was admitted to be a lie. He did not tell people that he had come to Birmingham by taxi, and he gave the impression to witnesses that he had had a lift in a van or lorry. Micky Lewis said in terms that he told him that he had had a lift in a lorry and had left his spare clothes in the cab. 10. Next day the appellant bought a car for £375, and then went to various pubs with his companions. That afternoon, as a result of the landlord of the Queensbury having reported the appellant missing and the police having gone to his ground floor flat, the deceased’s body was discovered in the second floor flat. It became known to the people in Birmingham that the police wanted to see the appellant about it. His brother told him and his reaction was one of shock. He said, then, and to other people over the next few hours, that it was nothing to do with him. He said he tried to contact the police but without success. 11. Micky Lewis gave evidence that later that evening, when he and the appellant were alone in a pub car park, he asked the appellant if he was responsible and the appellant answered “I did not mean to go that far”. Then the others came out and nothing more was said. Lewis said that he had not mentioned this in his first statement to the police out of loyalty to his friend. The two of them spent that night in the sitting room at Sharon’s house and when they were on their own the appellant said “I am facing 20 years for this aren’t I?” Lewis told him that they would sort it out in the morning. 12. The police came to the house at 6 am the next day. The appellant was found hiding in a cupboard under the stairs. He had on him £556. Before he was taken back to Devon, Sharon visited him and he told her that he had put £1,000 behind the bathroom sink for her and her boyfriend. This was recovered by the police. (The money spent by the appellant since 12.50 am on 24th July, together with the money in his possession, amounted to some £2,566.) 13. The appellant was taken to Torquay and interviewed over the next two days. On the Tuesday evening, 26th July, he was seen by a police surgeon who found an injury to the knuckles of his right hand, consistent with his having used the clenched fist to strike a blow or blows to the face, although there was no bruising to his hands. He had told his friends and family in Birmingham that this injury had been caused by punching the punchbag in the Queensbury. There was evidence that when he was in the Queensbury on the Saturday afternoon he had punched the punchbag a few times with his bare hands, and then again wearing gloves, but no-one saw any resultant damage to his hands. The prosecution claimed that his account of the injury was a lie. Evidence was given by a forensic scientist who punched the punchbag repeatedly as hard as he could, without sustaining any such injury. Nor did he find in the boxing gloves any trace of the blood which would have been there if the appellant had used them with injured knuckles. 14. The police officers who had gone to the appellant’s flat at 3 pm on Monday 25th July, found the door closed but not locked. There was a calor gas bottle behind it which had to be moved when the door was opened. The key was on a shelf inside. (There were no keys on the appellant when he was arrested.) The kitchen at the back of the flat had a door into an enclosed yard. This door was open with the keys in it, and there was a fixed ladder in the yard on to the roof which provided a means of getting out of it. On the hall floor was found a cord which it later appeared was from the deceased’s dressing gown. It had been knotted several times and was heavily bloodstained. DNA evidence indicated that the blood was that of the deceased. At 3.20 pm the police officers went up to the deceased’s flat and found his body. The dressing gown, without its cord, was on the back of the door. A copy of the TV Times was open on a table showing the programmes for the evening of Saturday 23rd July, which the prosecution said gave some assistance as regards the time of death. 15. No identifiable fingerprints were found anywhere. A patch of blood on the stairs leading to the second floor could not have come from the appellant or the deceased. Three towels in the appellant’s flat appeared to have blood on them. That on the first could not be analysed; that on the second could have been the appellant’s but not the deceased’s; and that on the third could not have come from either of them. No blood was found on the appellant’s clothing when he was arrested (except for a very small spot on his T-shirt which was probably his own), or on a sample of the banknotes recovered from Sharon’s bathroom. The prosecution suggested that the absence of blood on the appellant’s clothing was explained by the fact that by the time to got to Birmingham he was not wearing the same clothes as he had been seen wearing at the Queensbury on the Saturday evening, and must have disposed of them. 16. Dr Fernando, the pathologist, carried out a post mortem on the evening of Monday 25th July. He considered that death had occurred more than 24 hours before. It was difficult to say how much before, but he thought one or two days. The deceased had died as a result of a gross head injury consisting of extensive fracture of the skull, and laceration and contusion of the brain. The injuries were consistent with having been inflicted with a heavy blunt instrument such as a claw hammer or a spanner. They included a black eye and broken nose, which were consistent with punches, but could also have been caused by the blunt instrument. There was also a mark round the neck. The prosecution suggested that this was caused by the dressing gown cord’s having been used in an attempt to strangle the deceased, which would explain how it came to be bloodstained. 17. As we have noted, in interviews with the police the appellant said he had about £1,200 stashed away in his flat. He had been putting money away which he had earned from his landlord for doing bits of work here and there. But the evidence was that at least £2,560 was either spent by him or left in Birmingham. He said that he took about 15 minutes between leaving the Queensbury and getting a taxi. In fact about 3 hours elapsed and, as we have said, the appellant accepted he could not account for that period of time. He described the taxi journeys and said he had inadvertently left a bag of shoes and trousers at the Gordano service station. He denied he had changed his clothes. He said he had been wearing a yellowish T-shirt and blue jeans (the clothes he had been wearing on arrival at Birmingham). But the witnesses said that on Saturday evening he had been wearing black trousers and a white shirt in the Queensbury public house. 18. The appellant did not give evidence. The defence case was that he had given his account to the police in interview and had nothing to add. There might be suspicion but there was no proof of his guilt. There was no forensic evidence to connect him to the crime. His trip to Birmingham could be attributed to his feelings for Sharon, and the jury could not be sure that the money, which he had, had not been saved, or at any rate that it had come from the deceased. Someone else had the opportunity to kill the deceased and could have left via the appellant’s flat, dropping the cord as they went. Micky Lewis’s evidence of a confession was challenged, on the basis that (1) he did not mention it in his first statement to the police, and (2) the statement, in which he did then mention it, was inconsistent with his evidence in court as regards the point in the evening when the alleged conversation took place. 19. The reasons given by the Single Judge for describing the case against the appellant as overwhelming were that the cord found in the appellant’s flat was deadly evidence as were remarks which he made later. That must be a reference to the remarks made to Lewis which we have set out above. 20. In the course of their investigations the Commission discovered that the witness Micky Lewis had 54 previous convictions, 39 of them involving dishonesty. When making his witness statements he, Lewis, had given a false middle name and date of birth, so that his previous convictions were not discovered. It was likely that he deliberately concealed his identity from the police, as there was an outstanding arrest warrant against him. The Commission concluded that he may well have been motivated to fabricate important evidence against the appellant in order to have a bargaining chip, in the event of the police discovering his true identity. Moreover, the fact that he had in mind that he would give evidence against the appellant in return for the warrants against him not being pursued, was demonstrated by representations falsely made on his behalf to the Magistrates’ Court in 1997, when he said that the police told him in 1995 that the warrants would not be pursued if he gave such evidence. 21. Mr Atkinson QC and Mr Farmer now appear for the appellant and have submitted that the conviction should be quashed for that reason. They also sought leave to call fresh evidence from a newly instructed pathologist in relation to the time of death and other matters and relied on new but uncontroversial DNA evidence. We will consider these matters in reverse order. Further DNA evidence 22. This was to the effect (1) that after further extensive tests, of a more sensitive kind than could be done in 1994 and 1995, none of the appellant’s DNA was found at the flat of the deceased and none of the deceased’s DNA was found at the appellant’s flat, apart from that on the dressing-gown cord; (2) that the cord contained DNA of a third party (unidentified) as well as that of the deceased and (3) that blood, whose DNA did not match that of either the appellant or the deceased, had been found on the staircase wall of the deceased’s flat. We received this evidence in written form without objection from the Crown; Mr Atkinson relied on these points as makeweights rather than points which, on their own, established the unsafety of the conviction. We regard the points as entirely neutral. Further medical evidence 23. We thought it right to hear the evidence of Dr Cary and having heard it decided that it should be admitted even though there was no very satisfactory evidence as to why it was not called at the trial. The defence had had the services of a pathologist at the trial, Dr Hunt, but in the event decided not to call him; Mr Atkinson agreed it would be right for the Crown and the court to see Dr Hunt’s report. In the event, it emerged that he had agreed with the oral evidence given by Dr Fernando for the Crown that the deceased must have been dead for at least 24 hours by the time he was examined by Dr Fernando at 7.40 pm on Monday 25th July. Both Dr Fernando and Dr Hunt agreed, further, that it was very difficult to say how long before 7.40 pm on Sunday 24th July he would have died. As Dr Hunt said:- “A longer time is more difficult to assess, especially as the head injuries were such that he may not have died for a little time.” Dr Fernando’s view was that it could have been up to 1 to 2 days earlier than the 24 hour period before his examination. 24. It appeared from Dr Cary’s written evidence that he might be saying that the time of death was between 24 and 36 hours before the examination at 7.40 pm on Monday 25th July. That would be important, if right. Since 36 hours before that date meant the killing would have taken place at or after 7.40 am on Sunday 24th July when the evidence established the appellant was already in Birmingham. 25. It transpired, however, that this was not Dr Cary’s oral evidence at all. He said that all he could say was that death happened earlier than 24 hours before Dr Fernando’s examination. “Anything beyond 24 hours is a reasonable possibility” he said. Again, “it must be more than 24 hours; whether it is 1 or 24 hours more, there is no science other than the absence of flies’ eggs. But that is vulnerable.” The reference to the absence of flies’ eggs on the corpse was established by Dr Fernando’s original report. That is a help to a pathologist in relation to the time of death and encouraged Dr Cary to take the view that the time of death might be nearer 24 hours than 48 hours before Dr Fernando’s examination. He accepted that it was a “vulnerable” criterion because there was what he agreed was “hindered access”, by reason of the fact that the only access was through the transom of a window which was itself shielded by both a net curtain over the window and drapes of curtains down the side of the window. He concluded that he could not pin the time of death any more closely than to between 24 to 48 hours before 7.40 pm on 25th July. That seemed to us not to change the position of the evidence in any material way from what it had been before the jury; it does not advance the appeal. 26. Dr Cary also gave evidence that blood on the appellant’s knuckles was consistent with his account of having punched a punchbag and that the marks in the photographs of the deceased’s neck were not necessarily those of the cord of the dressing gown found in the appellant’s flat. This evidence did not take the case anywhere either. On the cause of the blood on the appellant’s knuckles, it was entirely a matter for the jury whether it was likely or possible that the appellant had incurred the injury in the way he described. They had evidence from Dr Fernando (as well as the forensic evidence we have already mentioned) that he had actually punched the relevant punchbag while it was in the exhibits room at Exeter Crown Court and had sustained no injury to his knuckles since it was a flat surface, although he did succeed in spraining his shoulder. The point about the cord of the dressing gown was not so much its use as a weapon for attacking the deceased (it was not suggested he died from the use of the cord as a ligature) but that it was found drenched with the blood of the deceased, in the flat of the appellant. Mr Atkinson recognised that these two further points made by Dr Cary were small makeweight points. They certainly cannot, of themselves, affect the safety of the conviction and we turn, therefore, to Mr Atkinson’s main argument. Ignorance of Lewis’ Previous Convictions 27. There is no question of any fault on the part of the Crown. When Lewis made his statements he deliberately gave the police a false middle name and a false date of birth. Routine checks did not reveal that Lewis had, as we have already said, 54 previous convictions, 39 of which were for offences involving dishonesty. It seems that the appellant knew Lewis had previous convictions and had so informed his solicitors at an early stage. That may not have been communicated to trial counsel but the real reason why trial counsel was not informed was that Lewis had successfully deceived the police. The appellant himself had 25 convictions for dishonest offences, 4 convictions for assault, one for wounding and one for arson. These convictions would, of course, have emerged if Lewis’s credit had been attacked and if the appellant had given evidence. In fact the appellant did not give evidence and so it is a fair inference that, if the defence team had known of Lewis’s previous convictions, they would have used them to attack Lewis’s credibility; the decision that the appellant was not to give evidence would have been taken on the first instead of the third day of the trial. The trial took place at a time when juries were directed not to hold against a defendant the fact that he had not given evidence. It is clear to us that, if the previous convictions had been known, counsel would have conducted the defence differently and would, no doubt, have cross-examined Lewis more effectively than he was in the circumstances able to do if, indeed, Mr Lewis had been called at all. We agree, therefore, with the Commission’s conclusion at para 9.61 of the reference that if the defence had known of Lewis’s convictions they would have decided to use the information in cross-examination, on the basis that the appellant would not give evidence. 28. We were referred to the authorities of R v Smith 4th June 1998 Unreported, Vasilou 4th February 2000 [2000] Crim L Rev 845 and Farrell 20th March 2000 Unreported. In all these cases convictions were quashed because the convictions of an important witness, who gave evidence about the central matters in issue in the case, were not disclosed. We take the law from paragraph 7 of Farrell where Lord Bingham of Cornhill CJ said this:- “7. Thus we have a clear and simple case in which the convictions of the prosecution witness were not disclosed when they should have been as a result of inadvertence or oversight. What is the effect of such non-disclosure if a defendant is convicted and evidence of convictions on the part of the prosecution witness then comes to light? There is no simple and straightforward answer to that question. The answer will depend on the weight of evidence in the case, apart from the evidence of the witness whose convictions have not been disclosed. The greater the weight of the other evidence the less significance, other things being equal, the non-disclosure is likely to have had. The answer will also depend on the extent to which the credibility and honesty of the prosecution witness whose convictions have not been disclosed is at the heart of the case. If, as here, the prosecution witness whose convictions have not been disclosed is the only witness against a defendant, and his credibility and honesty are squarely in issue, and the jury are led to believe that that witness is of good character when such is not the case, then there is strong ground for contending that the conviction is unsafe. That is the conclusion to which we find ourselves driven on this appeal and we accordingly feel constrained to allow the appeal and quash the conviction.” Mr Atkinson submitted that the credibility and honesty of Lewis did, indeed, go to the heart of the case. What, he asked, was more at the heart of the case than a confession made by a killer to someone whom he thought to be a friend? He buttressed the argument by saying that Lewis, who gave his evidence at the end of the first day and must have thus left a resounding impression on the jury at a critical time of the case, was the only live witness of consequence; the other evidence was all circumstantial and the conviction was, therefore, inevitably unsafe. 29. We disagree. The submission overlooks the Lord Chief Justice’s observation that there is no simple and straightforward answer to the question of what is to happen if evidence of previous convictions of a prosecution witness come to light after the trial. As he said:- “The greater the weight of the other evidence the less significance, other things being equal, the non-disclosure is likely to have had.” Accordingly it cannot be the case that if an important witness’s convictions are not disclosed, the conviction must inevitably be quashed. As Lord Bingham said later in R v Pendleton [2002] 1 WLR 72 , para 19, it is for this court to determine whether the conviction is unsafe and in any case of difficulty to test its provisional view by asking whether the new evidence (here the previous convictions) if given at the trial might reasonably have affected the decision of the trial jury to convict. 30. The critical fact that makes this case different, in our judgment, from the authorities cited is that in those cases the witness in question gave evidence about the central facts in issue in the case. Here Lewis had nothing to say about the central facts in issue, circumstantial though they are. His evidence, persuasive if believable, related to a subsequent confession and left the central facts in issue untouched. The question therefore is whether, without Lewis’s evidence, the jury would have convicted. We are convinced that they would and that evidence about Lewis’s convictions could have made no difference to the verdict. 31. We have already set out the evidence given at the trial that leads us to that conclusion but the salient and telling features are as follows:- (1) The appellant’s sudden departure from Teignmouth at ten to one in the morning; (2) His journey to Birmingham in the middle of the night by an expensive form of transport, viz. taxi; (3) The fact that the deceased’s dressing gown cord drenched in the deceased’s blood was found in the appellant’s flat; (4) The fact that a block, in the form of a calor gas container, had been put inside the door of the deceased’s flat by someone who then left inconspicuously by the back door and by ladder over the rooftops; (5) The appellant’s arrival in Birmingham without the carrier bag which he had with him on leaving Devon but with over £2,500 in cash when the deceased was known to have in his flat cash which was missing and the appellant was known to have been in debt before he left Teignmouth; (6) The appellants admitted lies (a) to his relations and friends in Birmingham, that he had won his money on horses; (b) to the police, that he had taken £1,200 when he had, in fact, taken over £2,500; (7) The appellant’s unadmitted but proved lies (a) to those in Birmingham, that he had left a kitbag on a lorry in which he had got a lift; (b) to the police, that he had been wearing on Saturday the yellowish shirt and blue jeans in which he arrived in Birmingham, when the evidence of those in the Queensbury public house was that he had been wearing a white top and black trousers; (c) to the police, that injuries sustained to his knuckles were the result of hitting a punchbag at the Queensbury when the evidence was that the boxing gloves which the appellant put on bore no traces of blood; (8) The absence of any explanation on the part of the appellant for (a) his activities during the 3 hour period elapsing between his departure from the Queensbury and his first taxi ride; (b) the presence of the deceased’s dressing gown cord in his flat; (c) the contrast between his impecuniosity in Teignmouth and his suddenly acquired wealth in Birmingham (9) The implausibility of supposing that an unknown murderer could have battered the deceased to death, decided to exit the house through the appellant’s flat, dropped the deceased’s dressing gown cord there and, before leaving, have decided to deposit a gas canister behind the door of the flat. For all these reasons, in our judgment the prosecution had a completely compelling case, even if Lewis had been successfully discredited and even though the evidence can fairly be described as circumstantial. 32. The critical paragraphs of the reference from the Criminal Cases Review Commission state as follows:- “9.68 The Commission considers that had Michael Lewis’ convictions been disclosed, there is a realistic possibility that the defence would have cross-examined him about them. This would inevitably have had an impact on the credibility of his evidence, evidence described by the single judge at the appeal stage as ‘deadly’. The prosecution case against Mr Underwood was strong but the only direct evidence against him was that of the confession to Michael Lewis. If the defence could have cast sufficient doubt on the reliability of Mr Lewis’ evidence, the prosecution case would have been wholly circumstantial. 9.69 The question for the Commission is therefore whether there is a real possibility that the Court of Appeal would consider that the jury might have acquitted Mr Underwood had Mr Lewis’ convictions been disclosed. In the light of the above, the Commission considers that there is such a possibility.” 33. We naturally respect the conclusion of the Commission that there is a real possibility that the jury would have acquitted the appellant if Lewis’s convictions had been disclosed. But it seems to us to amount to a view that, however strong the circumstantial evidence may be, any verdict that depends upon circumstantial evidence alone is arguably unsafe. Having now heard full argument that the verdict is unsafe, we are sure for the reasons we have given that it is not unsafe. On no view was it just Lewis’s evidence that was “deadly” evidence against the appellant. In these circumstances, our duty is to say that the verdict is a safe one and the appeal will be dismissed.

2003_05_22-70.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/1500/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/1500

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[2010] EWCA Crim 710

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Cases No: 2009/03835/A9 2008/06339/A5 2008/06962/A1 Neutral Citation Number: [2010] EWCA Crim 710 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/03/2010 Before : LORD JUSTICE THOMAS MR JUSTICE SAUNDERS and MR JUSTICE STADLEN - - - - - - - - - - - - - - - - - - - - - Between : Reference by the Criminal Cases Review Commission Regina Respondent - and - Rahuel Delucca Appellants On appeal from the Crown Court at Birmingham,

Cases No: 2009/03835/A9 2008/06339/A5 2008/06962/A1 Neutral Citation Number: [2010] EWCA Crim 710 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/03/2010 Before : LORD JUSTICE THOMAS MR JUSTICE SAUNDERS and MR JUSTICE STADLEN - - - - - - - - - - - - - - - - - - - - - Between : Reference by the Criminal Cases Review Commission Regina Respondent - and - Rahuel Delucca Appellants On appeal from the Crown Court at Birmingham, HHJ Judge Inman Regina Respondent - and - Graham Murray Appellants On appeal from the Crown Court at Stafford, The Hon Mrs Justice Macur Regina Respondent - and - Christopher Stubbings Appellants - - - - - - - - - - - - - - - - - - - - - Mr G Byrne for the Appellant Delucca Mr D Myerson QC for the Respondent in Delucca Ms S Mahmood for the Appellant Murray Mr J Dunstan for the Respondent in Murray Mr D Whitehead for the Appellant (Stubbings) Mr T Barnes QC for the Respondent in Stubbings Miss K Wilkinson for the Secretary of State for Justice Hearing date: 9 December 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: 1. These appeals were heard together because they raised common issues as to the powers of the court in relation to the minimum term that can be imposed when sentences of Imprisonment for Public Protection (IPP) are passed under the provisions of the Criminal Justice Act 2003 ( CJA 2003 ). The issues that have in the result arisen for decision arise out of the difficulties facing a judge when he concludes that a sentence of IPP is necessary on one of the offences before him, but there are other offences in respect of which, if he had not imposed a sentence of IPP, it would have been necessary to impose a determinate term consecutive to the term he would have imposed on the specified offence. The specific issues are: i) the extent to which the court, in determining whether the notional minimum term of two years for the specified offence under the amendments made in 2008 to the CJA 2003 have been satisfied, is entitled to take into account the other offences before the court; ii) whether, when calculating a notional determinate sentence for the purpose of arriving at the minimum term, a court can, by taking into account the other offences before it, arrive at a notional determinate sentence for the specified offence that exceeds the statutory maximum in respect of the specified offence 2. It is accepted in each appeal that the offender is a dangerous offender within the meaning of the CJA 2003 . It is not necessary for us to lengthen this judgment by setting out any matters that justified those findings. 3. We consider the first question (which arises in the appeal by Murray) has been answered affirmatively in R v C [2008] EWCA Crim 2790 ; the second has been answered expressly by this court in an earlier appeal - Delucca [2007] EWCA Crim 1455 . However the Criminal Cases Review Commission (CCRC) in its reference has asked the court to reconsider that decision on the basis that the court was not referred to a previous decision of the court. We have concluded that the decision of this court in Delucca was not only correct, but supported by a number of other decisions of this court. However, we will, out of courtesy to the careful arguments put forward by the CCRC, give our answer at greater length. 4. In the event, no question as to the powers of the court arose on the third appeal, but in that appeal it was contended that the length of a minimum term imposed was manifestly excessive. That case, unusually, involved one of those at the centre of the production of child pornography. We will deal with the issues of law (on which the first two appeals turn) before dealing with the third appeal. (1) The legislative background and the issues raised (i) The 2003 Act and the guidance in Lang 5. To explain why the decision of this court in Delucca was correct and the first question was answered in R v C, we must summarise the way in which the provisions relating to minimum terms have developed and been commented on or interpreted by the courts. The difficulties have all risen out of the long history of interrelationship between indeterminate and determinate sentences, the necessity to fix minimum terms and the way in which sentencing legislation has been drafted. It appears to have been intended in 2000 that all the sentencing legislation should be included and retained in one statute which could then be amended as new provisions were needed. If that statute had been clear in its terms, set out principles and not been overly prescriptive in constraining the discretion of this court in developing the principles and then been updated instead of new provisions being included in other legislation, many of these difficulties, uncertainty and consequent expense would not have arisen and the law could be simpler and clearer for everyone. However the concepts of clarity and simplicity have not been, apparently, at the forefront of consideration by those who formulate policy and draft this type of legislation. The following paragraphs are but one illustration (of many) which demonstrate the necessity for a new approach to sentencing legislation. 6. That history appears to have begun as follows: i) The practice of making determinate sentences concurrent with life sentences appears to have begun in R v Foy (1962) 46 Cr. App. R. 290 and R v Jones (1962) 46 Cr. App. R. 129 where the Attorney General appeared in person to assist the court. In the former the court observed that a determinate sentence imposed consecutively to an indeterminate sentence was no sentence at all; in the latter, it was made clear that imposing a life sentence consecutively to a determinate sentence was bad practice. ii) Although a judge had power under the Murder (Abolition of Death Penalty) Act 1965 to fix a minimum term before the release of a person sentenced to life imprisonment for murder, the modern practice of the court in fixing minimum terms for discretionary and mandatory life sentences can be traced back to 1983. The Secretary of State introduced at that time a policy under which there would be a review by the Parole Board for release of all life prisoners fixed by reference to the expiry of the period necessary to meet the requirements of retribution and deterrence . Under this policy the judiciary were to advise on the period necessary for retribution and deterrence; the Secretary of State was to decide on safety for release. This practice which established the distinction between the two elements of a life sentence was applied to mandatory and discretionary life sentences. From 1987 a judge was required to express through the Lord Chief Justice his view on the penal element of non discretionary life sentences: see the judgment of Lord Mustill in R v SSHD ex p Doody [1994] AC 531 at 550-555. 7. In 1991, as a consequence of a decision of the Strasbourg Court in Thynne, Wilson & Gunnell v UK (1990) 13 ECHR 666 , the first step was taken to place this practice on a statutory basis. S.34 of the Criminal Justice Act 1991 gave the judge power to fix in discretionary life sentence cases what was then known as the “tariff term”, “relevant” part or “specified” part and has become known as “the minimum term”. We shall use the expression minimum term. The section stated that the minimum term was to be fixed by taking into account “the seriousness of the offence, or the combination of the offence and other offences associated with it”. By sections 51(4) and s.31(2) of that same Act an offence was defined as associated with another if: “(a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence; or (b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence.” That definition has been carried forward into s.161(1) of the Powers of Criminal Courts (Sentencing Act 2000 ) and s.305(1) of the CJA 2003 . 8. The power to consider the question of release was given to the Parole Board which had to consider that question at the expiry of the minimum term. The legislative provision in s.34 was accompanied by a Practice Direction: Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223 which made it clear that the minimum term was to be that part of the sentence that was imposed for punishment and deterrence; this is now to be found in Part IV.47 of the Consolidated Criminal Practice Direction. In R v Marklew and Lambert [1999] 1 Cr. App. R.(S.) 6, this Court set out the approach that courts should adopt: “the general approach is to decide first the determinate part of the sentence that the judge would have imposed if the need to protect the public and the potential danger of the offender had not required him to pass a life sentence. It is the imposition of the life sentence that protects the public and is necessitated by the risk that the defendant poses. That element is therefore not to be reflected in the determinate part of the sentence that the court would have imposed; the determinate part is therefore that part that would have been necessary to reflect punishment, retribution, and the need for deterrence. It is we consider important that the judge should, when passing sentence, make clear to the defendant what that determinate period would have been. … In the case of adult offenders, we consider that again the general approach should be to begin consideration of the specified part under s.34 by taking half the determinate period that would have been passed; that determinate period will reflect the element of punishment, retribution and deterrence in the sentence. In many cases half the determinate period may well be the appropriate period to specify under section 34 . However, there may well be circumstances, as the decisions of this Court show, where it would be appropriate for the judge in the exercise of his general discretion and in circumstances that arise on the facts of a particular case to fix the specified period at a period which was more than half and up to two-thirds of the determinate sentence that would have been passed. ” The provisions of the Criminal Justice Act 1991 were replaced by s.28(3) of Chapter 2 of Part II of the Crime (Sentences) Act 1997 which remains in force. In Haywood [2000] 2 Cr App R (S) 418 and Szczerba [2002] 2 Cr App R (S) 86 this court considered the circumstances where the court should impose a minimum term of more than half. The position was summarised in the judgment of the court given by Rose LJ in the second case. “There are, however, circumstances in which more than half may well be appropriate. Dr Thomas identified two examples. In Hayward [2000] 2 Cr.App.R. (S.) 418 a life sentence was imposed on a serving prisoner for an offence committed in prison. In such a case the term specified can appropriately be fixed to end at a date after that on which the defendant would have been eligible for release on licence from his original sentence. This may involve identifying a proportion of the notional determinate term up to two-thirds. Another example is where a life sentence is imposed on a defendant for an offence committed during licensed release from an earlier sentence, who is therefore susceptible to return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 . In such a case the specified period could properly be increased above one-half, to reflect the fact that a specified period cannot be ordered to run consecutively to any other sentence.” 9. When Chapter 5 of Part 12 ( ss.224 -236) of the CJA 2003 created the indeterminate sentence of IPP, s.225(4) made the sentence of IPP a life sentence for the purposes of Chapter 2 of Part II of the Crime (Sentences) Act 1997 (to which we referred in paragraph 8) and s.82 A of the Powers of Criminal Courts (Sentencing) Act 2000 which had been inserted into that Act by the Criminal Justice and Court Services Act 2000 . The court accordingly had to determine the minimum term to be served under s.82 A which, as in turn amended by the CJA 2003 , read so far as material: “(2) The court shall, unless it makes an order under subsection (4) below, order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this section as the “ early release provisions ” ) shall apply to the offender as soon as he has served the part of his sentence which is specified in the order. (3) The part of his sentence shall be such as the court considers appropriate taking into account — (a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it; (b) the effect of any direction which it would have given under section 240 of the Criminal Justice Act 2003 (crediting periods of remand in custody) … if it had sentenced him to a term of imprisonment; and (c) the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003 . (4) If the offender was aged 21 or over when he committed the offence and court is of the opinion that, because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2) above, the court shall order that … the early release provisions shall not apply to the offender. (4A) No order under subsection (4) above may be made where the life sentence is-- (a) a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003 , or (b) a sentence of detention for public protection under section 226 of that Act (7) In this section — “ life sentence ” has the same meaning as in Chapter II of Part II of the Crime (Sentences) Act 1997 . The section carried through the policy of the earlier legislation of requiring the judge to fix the minimum term by reference to the seriousness of the offence and one or more offences associated with it. However, the position of a sentencing judge was made more complex by the provision of s.240 which required him to allow for time on remand when specifying the actual minimum term to be served. 10. These provisions were brought into effect in April 2005. However the terms of the CJA 2003 caused so many difficulties that Rose LJ had to give general guidance in respect of sentences of IPP in Lang [2005] EWCA Crim 2864 . When giving guidance about fixing the minimum term, he emphasised the continuity of the provisions which we have set out above: 10. The procedure for fixing a minimum term in relation to these new sentences should be as before the Act in relation to discretionary and automatic life sentences. The court, taking into account the seriousness of the offence or the combination of the offence and one or more offences associated with it, must identify the notional determinate sentence which would have been imposed if a life sentence or imprisonment for public protection had not be required. This should not exceed the maximum permitted for the offence. Half that term should normally then be taken and from this should be deducted time spent in custody or on remand…. There will continue to be exceptional cases where more than half may be an appropriate: see R v Szczerba ….. In calculating the minimum term, an appropriate reduction should be allowed for a plea of guilty (see Sentencing Guidelines Council Guideline on Reduction for a Guilty Plea paragraph 5.1), and care should be taken not to incorporate in the notional determinate sentence an element for risk which is already covered by the indeterminate sentence.” (ii) The further guidance in O’Brien 11. Other issues continued to arise in relation to the minimum term. In O’Brien [2006] EWCA Crim 1741 , this court had to consider these issues in the context of two specific questions where the detailed statutory regime set out in the legislation was silent. The first was whether a sentence of IPP could be ordered to run consecutively to another sentence of IPP. The second was how a court should, as a matter of practice, formulate a sentence when a court wished to order the remaining period of a sentence to be served and to impose a sentence of IPP. Hooper LJ in giving the judgment of the court followed the long standing practice of the court set out in Jones that it was undesirable to impose consecutive indeterminate sentences or to order an indeterminate sentence to be served consecutively to another period of imprisonment; a sentence of life imprisonment or a sentence of IPP should start on its imposition. But to ensure that the balance of any existing sentence should be included, the judge should increase the notional determinate term to reflect the balance of the period, rather than increasing the proportion to be served as the minimum term above half following the decision in Haywood and Szczerba. The court also made clear that if a court was imposing two indeterminate sentences, it was not good practice to make the sentences consecutive to each other, but to increase the minimum term on the more serious to reflect the totality of the offending and make both sentences concurrent. 12. In a commentary in the Criminal Law Review at [2006] Crim LR 1074, Dr David Thomas, considered the approach consistent with s.82 A of the 2000 Act and gave a useful example: “.the offender is convicted of burglary with intent to steal (not a specified offence) and relatively minor sexual assault (a specified offence). The court would have imposed seven years for the burglary with 12 months consecutive for the sexual assault. In view of the offender's history, the court finds itself obliged to impose a sentence of imprisonment for public protection for the sexual assault. The court should take a total of eight years as the notional determinate sentence (combining the two determinate sentences which would have been imposed), divide this by two, and then subtract any remand time, to produce a minimum term of four years, less time on remand. There seems to be no reason why the court should not impose a concurrent sentence of seven years for the burglary, with an order under s.240 that any remand time should count against that sentence. This will merely be a symbolic gesture which may confuse the media and the public, but it will not affect the reality of the sentence; the offender will serve the minimum period specified (four years, less time on remand), notwithstanding that he would otherwise be entitled to be released from the seven-year sentence after serving three-and-a-half years less time on remand.” 13. The decision in O’Brien has been widely applied. In O’Halloran [2006] EWCA Crim 3148 , this court applied O’Brien in determining that a judge should have regard to the circumstances of non specified offences when fixing the minimum term. A court was bound under s.143(2) of the CJA 2003 in considering the seriousness of the offence to take into account each previous conviction as an aggravating factor. It would therefore be irrational not to take account of the non specified offence. Furthermore it would give “an uncovenanted bonus to the offender and would short-change victims and the public.” In Ashes [2007] EWCA Crim 1848 , this court applied the principles in O’Brien to a prisoner already serving a sentence of IPP. (iii) The decision of this court in DeLucca and the subsequent reference by the CCRC 14. That was the state of the development of the principles applicable to the determination of the minimum term when this court decided in 2007 in the original appeal by Delucca that the court could, in setting the minimum term, take a notional term that was in excess of the statutory maximum for the specified offence where there were other offences before the court. The background to that decision was the following i) Shortly after the decision in O’Brien, Delucca was sentenced at the Crown Court at Bradford on 25 August 2006, for the following offences: a) Count 1: Possession of a firearm with intent to cause fear of violence on 10 November 2005. He was convicted of this offence which was a serious specified offence under the provisions of s.225 of the CJA 2003 b) Counts 7 and 8: Possession of ammunition and possession of a prohibited firearm without a firearm certificate - offences that occurred at a different time to the offence under Count 1. He had pleaded guilty to these offences which were not serious specified offences. ii) It is not necessary for us to set out the facts in relation to Count 1 at any length: a) On 10 November 2005 the appellant had travelled with his co-defendant, Rhoden, and at least one other to a street in Huddersfield in a Fiat car and drew up outside a café in which, Francois, a person with whom Rhoden had a history of feuding was sitting with his car park outside. Two of the men in the Fiat car got out and one fired a self loading pistol at Francois’car. b) The Fiat car then drove to a residential cul-de-sac; two armed policemen attended. Rhoden shot at them, the bullet shattering the windscreen of the car. c) Delucca tried to leave the UK, but was arrested on 1 December 2005. He made confessions which he then retracted; his DNA was found on the pistol used to fire at Francois’car. d) Rhoden pleaded guilty to attempted murder; Delucca pleaded not guilty. 15. When Delucca was sentenced to IPP, HHJ Stewart QC specified a minimum term of five and a half years imprisonment less time on remand on all three counts. He arrived at that minimum term by calculating the overall notional determinate term he would have imposed as being 11 years. He aggregated the 8 years he would have imposed on Count 1 (on the basis that the appellant had been part of offending where a gun had been fired in a public place as part of gang warfare) with the consecutive term of 3 years he would have imposed on Counts 7 and 8 (5 years reduced to 3 years for totality). 16. Delucca appealed against conviction and sentence. The appeal against conviction failed. He contended in the appeal against sentence that the sentences of IPP on Counts 7 and 8 were unlawful, as they were not serious specified offences. The court hearing the appeal on 4 May 2007 accepted that contention. However, following the principle in O’Brien the court considered that the issue before it was the propriety of the minimum term of 5½ years for Count 1, the serious specified offence. “20. In our judgment (and no real argument has been advanced to the contrary), the judge was entitled to order that the applicant Delucca serve that period as a minimum period on count 1. The question then is whether it is proper for us to raise the notional determinate sentence of eight years on count 1 to one of eleven years in order to achieve that result. In our judgment it is. Firstly, to do so is not contrary to section 11(3) of the Criminal Appeal Act 1968 , since the totality is not being increased. Further, although the notional determinate period of eight years on count 1 would have to be increased to one of eleven years to achieve the same minimum period of five-and-a-half years (less 262 days), to do so would not offend against the maximum sentence imposed by Parliament of ten years for an offence contrary to section 16A. It must always be recalled that the sentence on count 1 was an indeterminate sentence of imprisonment for public protection. The notional determinate sentence is nothing more than an explanation by the court of the process by which it arrives at a minimum term. It is not a sentence of imprisonment at all. Thus, for example, fixing a notional determinate sentence of eleven years in no way exceeds the statutory maximum of ten. 21. In our judgment, the appropriate way of curing the error for which the judge and counsel can be wholly forgiven, faced as they were with these arcane sentencing provisions, is to maintain the minimum term of five-and-a-half years' imprisonment (less 262 days) by this process. The sentence on count 1 will remain as imprisonment for public protection pursuant to section 225 of the 2003 Act , with a minimum term of five-and-a-half years' imprisonment (less 262 days). So far as counts 7 and 8 are concerned, the order of this court will be that the applicant should be imprisoned for three years on each, to run concurrently, concurrent with the imprisonment for public protection. So to do takes account of section 82 A(3)(a) of the Powers of Criminal Courts (Sentencing) Act 2000 , which permits, when considering the count of possessing a firearm with intent to cause fear of violence, the court to take into account offences associated with that offence, namely the other offences under counts 7 and 8 in considering the appropriate sentence and seriousness of the offence under count 1. That we have done. ” 17. Delucca applied to the CCRC for a review of his conviction; the CCRC declined to refer his case. He then applied for a review of his sentence on the basis that the court had passed a sentence which exceeded the statutory maximum for the offence. The CCRC determined on 21 July 2009 that a reference should be made to the Court under s.13 (b)(ii) of the Criminal Appeal Act 1995 which gives the CCRC power to refer on the basis that an argument on a point of law was not raised. The CCRC determined that the Court had not been referred to Lang [2005] EWCA Crim 2864 and its decision was not reconcilable with the observations of Rose LJ in Lang at paragraph 10 which we have set out in paragraph 10 above. 18. Before setting out our reasons for our conclusion that the decision in Delucca was plainly correct, it is convenient next to refer to the statutory changes made in 2008. (iv) The amendment in 2008 to provide for a qualifying notional minimum term of 2 years 19. One of the consequences of way in which the terms of the provisions relating to sentences of IPP in CJA 2003 were formulated was that, if the offender was found to qualify for a sentence of IPP because he was a dangerous offender, a court was required to impose a sentence of IPP, even though the minimum term might be 12 months or even less. There was no restriction on the duty to impose a sentence of IPP by reference to the notional minimum term that the judge would impose. As a result a number of persons were sentenced to IPP with minimum terms much less than 24 months. In 2008 Parliament amended the provisions relating to the sentence of IPP to give the court more discretion as to whether to impose a sentence of IPP; it also decided to introduce a restriction on the ability of the court to impose a sentence of IPP by requiring the minimum term to be 2 years before crediting time on remand. It did so by s.13 and Schedule 15 to the Criminal Justice and Immigration Act 2008 ( CJIA 2008 ) which amended s.225 of the CJA 2003 . These new provisions were brought into force on 14 July 2008. The five relevant subsections of s.225 of the CJA 2003 , as amended, are: (2) If— (a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life or in the case of a person aged at least 18 but under 21, a sentence of custody for life http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=7&crumb-action=replace&docguid=I9F0B7B10E44F11DA8D70A0E70A78ED65 - targetfn1#targetfn1 (3) In a case not falling within subsection (2), the court may impose a sentence of imprisonment for public protection or, in the case of a person aged at least 18 but under 21, a sentence of detention in a young offender institution for public protection if the condition in subsection (3A) or in subsection (3B) is met. (3A) The condition in this subsection is that, at the time when the offence was committed, the offender had been convicted in any part of the United Kingdom of an offence specified in Schedule 15A. (3B) The condition in this subsection is that the notional minimum term is at least two years. (3C) The notional minimum term is that part of the sentence that the court would specify under section 82 A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of imprisonment for public protection but was required to disregard the matter mentioned in section 82 A(3)(b). (v) The issue raised by the appeal in Murray in relation to the amendments made by the CJIA 2008 20. The second appeal, Murray, specifically concerns the effect of this amendment. Murray had committed two serious sexual offences in 2004 (prior to the coming into force of the provisions of the CJA 2003 relating to sentences of IPP); he then committed a further offence which was a serious specified offence on 14 June 2007. At the time of the commission of that 2007 offence, he was then liable to be sentenced to a sentence of IPP even if the minimum term was less than 2 years. Although charged with the offences before the coming into force of the amendment effected by the CJIA 2008 , he did not plead guilty until 21 August 2008 (that is after s.225 as amended by the CJIA 2008 came into force) and was sentenced on 20 October 2008 at the Crown Court at Birmingham. The judge, Judge Inman, considered that the notional determinate term for the only specified offence was 3 years and 9 months, but that he was entitled to take into account the other offences (committed in 2004) in specifying a minimum term of 4½ years and thus was entitled to impose a sentence of IPP. The facts of the offences before the court were, in summary: i) Counts 2 - indecency with a child. Murray went onto internet chat rooms. He encountered the complainant T, who was then 13. After three months of contact on the internet, he met her and had sexual intercourse with her with her consent, even though she was only 13 and he was aware of her age. He had sexual intercourse on a number of further occasions; he was not charged with any of those offences as they did not come to light until after the time limit had expired. However, in February 2004, just before her 14 th birthday, after they had had sexual intercourse with her consent, he asked her to perform oral sex on him. She did not consent, but he forced her to do so. ii) Count 3 – rape. A few days later, again in February 2004 he asked the same child to have unprotected sexual intercourse with her. Despite her refusal, he proceeded to have unprotected sexual intercourse with her, ejaculating inside her. The offence came to light shortly thereafter, but T did not want to give evidence and a decision was made not to proceed then. iii) Count 4 - an offence of causing or inciting a child to engage in sexual activity. He groomed S, another 13 year old girl, until she agreed to perform oral sex on him in the toilet of a cinema in Birmingham on the first occasion he met her on 14 June 2007. This was the serious specified offence. iv) Counts 5, 6, 7, 8 and 9 - 5 offences of making indecent photographs of a child; 4 were on dates in 2004 and one in 2007. These were photographs of young girls, aged probably 11-13, in indecent poses found on his computer. These were all at level 1. 21. The judge concluded that the notional determinate term for the only specified offence was 3 years 9 months; this would result on its own in a minimum term less than 2 years. He then considered, in the light of the other offences, whether he was entitled to impose a sentence of IPP and, if so, how to set the minimum term for the sentence of IPP. He concluded that, in the light of O’Brien and other cases following it, he was entitled to impose a minimum term reflecting the overall criminality on the indictment rather than the single count for the specified offence viewed in isolation. He then set out the determinate sentences he would have passed individually on each count - count 3 six years, on count 2 three years concurrent, on count 4, three years and nine months consecutive, but reduced to three years for totality and on counts 5-9 three months concurrent. The aggregate of those terms was 9 years 22. He then took as the notional determinate term, the term of 9 years he had arrived at and reduced that by half to set the notional minimum term as 4 and a half years, less time on remand. His sentence was expressed as a sentence of IPP with a minimum term of 4 and a half years on count 4, with concurrent determinate sentences of 3 years on Count 2, 6 years on count 3 and 3 months on each of counts 5-9. Ancillary orders were also made. (v) Further changes enacted by the CJIA 2008 but not yet brought into force. 23. The CJIA 2008 also amended s.82 A of the Powers of Criminal Courts (Sentencing) Act 2000 by a provision in s.19 . Although these amendments have not yet been brought into force, the CCRC relied on the provisions in support of their contentions made in the reference to the court as to the correctness of the decision in Delucca . S.19 of the CJIA 2008 added three additional subsections to s.82 A (which according to the explanatory note relied on by the CCRC were intended to empower the courts to increase the minimum term). These subsections qualify the duty of the court under s.82 A(3) in the manner set out in new subsection (3C) in cases of the type described in what are designated in new subsections (3A) and (3B) as Case A and Case B: “(3A) Case A is where the offender was aged 18 or over when he committed the offence and the court is of the opinion that the seriousness of the offence, or of the combination of the offence and one or more other offences associated with it,— (a) is exceptional (but not such that the court proposes to make an order under subsection (4) below), and (b) would not be adequately reflected by the period which the court would otherwise specify under subsection (2) above. (3B) Case B is where the court is of the opinion that the period which it would otherwise specify under subsection (2) above would have little or no effect on time spent in custody, taking into account all the circumstances of the particular offender. (3C) In Case A or Case B above, in deciding the effect which the comparison required by subsection (3)(c) above is to have on reducing the period which the court determines for the purposes of subsection (3)(a) (and before giving effect to subsection (3)(b) above), the court may, instead of reducing that period by one-half,— (a) in Case A above, reduce it by such lesser amount (including nil) as the court may consider appropriate according to the seriousness of the offence, or (b) in Case B above, reduce it by such lesser amount (but not by less than one-third) as the court may consider appropriate in the circumstances. ” (vi) The legal issue originally raised in the third appeal 24. In the third appeal, Stubbings, the minimum term imposed by Macur J at the Crown Court at Stafford on 25 July 2008 was 12½ years less 262 days spent on remand. Although the sole point in issue was in the result whether, taking into account all the circumstances, the specified minimum term imposed was manifestly excessive, an issue had been raised as to whether it was permissible to arrive at a minimum term where the notional determinate sentence was greater than the maximum for any of the offences. (2) The contentions on the construction of the legislation 25. We turn next to summarise the contentions advanced: 26. In relation to the power of the court to impose a minimum term that was more than double the statutory maximum for the only specified offence, the contentions, in summary, were: i) The minimum term was intended to reflect the degree of punishment, retribution and deterrence appropriate for the offence. ii) Parliament had specified maximum penalties for offences. As half of any term was generally intended to reflect punishment, retribution and deterrence, it was not permissible to impose a minimum term for a specified offence that was more than half the maximum, as the offender would be receiving greater punishment than Parliament had intended by limiting the maximum for the offence. iii) Unless there was anything in the circumstances which would justify a court departing from the principle set out in R v Szczerba [2002] 2 Cr App R (S) 387 , that part of the determinate sentence and of the minimum term should be half. iv) The Guide issued by the Sentencing Guidelines Council on Dangerous Offenders (version 2, July 2008) (which is not a Guideline, but a source of information) advised, citing Lang , at paragraph 9.2.2 “The notional determinate sentence should not be greater than the maximum penalty for the offence.” But the Council also advised at paragraph 10.2.1: “ The court may impose a sentence of imprisonment (or detention) for public protection consecutive to another sentence of imprisonment (whether determinate or not) or vice versa, but normally should not do so. Instead, the court should order the other sentence of imprisonment to be concurrent with the sentence of imprisonment (or detention) for public protection and increase the notional determinate sentence to take account of the overall criminality,[citing O’Brien ]. There is authority to suggest [ Delucca ] that, as a result of the increase, the notional determinate sentence may exceed the maximum penalty for the offence for which the sentence of imprisonment (or detention) for public protection is to be imposed.” v) S.19 of the CJIA 2008 would, when brought into force, amend s.82 A to give the court power to increase the minimum term in cases where the seriousness of the offence was exceptional or would not adequately be reflected by the period the court would otherwise specify. As Parliament had legislated to this effect, it suggested that the courts did not have such power. 27. It was additionally submitted in relation to the qualifying notional minimum term introduced by CJIA 2008 that it was contrary to the principle to circumvent the new restriction by taking into account offences for which the offender could not have received a sentence of IPP as the offences had been committed prior to the introduction of sentences of IPP in April 2005. 28. In a very helpful submission made on behalf of the Secretary of State for Justice through HM Prison Service, it was explained that in practice the imposition of a consecutive sentence at the same time as a sentence of IPP had caused difficulties, but a policy had been adopted to give operational effect to cases where a court had contrary to long standing good practice passed such a sentence. HM Prison Service’s policy was to give effect to what the court had intended in such cases: i) When a determinate sentence was passed on a prisoner already serving an indeterminate sentence, s.28(7) of the Crime Sentences Act 19977 had the effect of postponing the Parole Board review until the half way point of the new sentence was reached ii) Where a consecutive indeterminate sentence was passed on a prisoner serving a determinate sentence (whether that part was being served in prison or being served in the community), then the prisoner was treated as an indeterminate prisoner when sentenced and was treated on the basis that his earliest release date would be the sum of half the determinate sentence and the minimum term. iii) If a person was given a sentence of IPP and a consecutive determinate sentence at the same time, then his earliest release date would be the sum of the minimum term and half the determinate sentence. iv) If two or more sentences of IPP were imposed consecutively, then the earliest release date would be arrived at by adding the two minimum terms together. This policy is consistent with this court’s decision in Hills and Others [2008] EWCA Crim 1871 where it provided guidance in dealing with offenders who fell to be sentenced for further offences while serving an existing indeterminate sentence. (3) Our conclusions on the powers of the court 29. Although prior to the CJIA 2008 , it might not have made any practical difference whether the courts imposed a consecutive term for non specified offences when imposing an IPP, it was not good practice. However, in the light of the CJIA 2008 , the correct approach to the setting of the minimum term must be resolved as a matter of principle, as the power of the court is constrained by the requirement that the minimum term be two years. 30. We agree with the view expressed in Delucca that when a court imposes a sentence of IPP, it is self evidently not imposing a term of imprisonment limited by the statutory maximum for a determinate sentence. It is imposing an indeterminate sentence the effect of which has been made clear beyond argument in Secretary of State for the Home Department v James [2009] UKHL 22 ; the offender remains in lawful custody until he demonstrates to the Parole Board he is safe to be released. 31. The fixing of the minimum term is, nonetheless of great importance as it entitles the offender to require the Parole Board to consider his release. The principles are however clear. The legislation which has been broadly the same since 1991 requires the court to have regard to the seriousness of the offence or offences associated with it. The long standing Practice Directions and decisions of this court have provided guidance as to how a judge should approach that assessment. As it is also clear from very long standing practice that a court should not impose consecutively an indeterminate sentence at the same time as a determinate sentence, it must follow that a court, in considering the notional determinate sentence it would have passed, must have regard to the totality of the sentences it would have passed for all the offences before it. If it did not, but was constrained to pass a determinate sentence only by reference to the single offence, it would be disregarding the requirements imposed on the court by Parliament since 1991 which require that the penal element for the totality of the offending be expressed in the minimum term – a consideration that underlies the whole of the statutory regime. 32. It therefore must follow that the notional determinate term for the purposes of a sentence of IPP for an offender being sentenced for several offences where consecutive sentences would have been appropriate if determinate sentences had been passed, will be greater than the notional determinate term for the offence in respect of which the sentence of IPP is being imposed. Where a sentence of IPP is being imposed for a single offence, then as Rose LJ said in Lang, it would be difficult to see how the penal element could exceed half the statutory maximum for that offence, as in enacting the statutory maximum Parliament would have expressed its view as to the penal element. But where there are offences associated with that offence, that consideration can no longer apply. The court is imposing an indeterminate sentence to reflect the risk of serious harm, and then imposing a minimum term for the penal element to take account, as Parliament requires, of the totality of the offending before the court. In such a case, it is irrelevant that the notional determinate sentence which takes into account all the offences may exceed the statutory maximum for the one offence in respect of which the offender is given an indeterminate sentence. 33. The same considerations apply to the duty of the court after the amendment made by the CJIA 2008 where it has to consider more than one offence at the time of sentencing. A court must first determine whether an indeterminate sentence is appropriate having regard to the provisions in respect of dangerousness. It must then consider a notional determinate sentence which reflects the totality of the offending; the court must normally take half of that sentence, prior to the deduction of time on remand, as the minimum term. Provided that minimum term is more than 2 years, then a sentence of IPP can be imposed. 34. The evident purpose of the amendments effected by the CJIA 2008 was to give the court greater discretion in determining whether a person was dangerous and in the consequences of such a finding, but that if he was, then he could not be sentenced to IPP unless the penal element of the sentence was more than 2 years. It did not change the basis on which the totality of the seriousness of the offences was to be taken into account in arriving at a penal element. Indeed that was made clear by this court in R v C [2008] EWCA Crim 2790 at paragraph 13: “The length of the minimum term is governed by s.82 A(3) of the 2000 Act s which for present purposes is not affected by s.19 of the 2008 Act . Section 82 A(3)(a) provides that the determination of the “tariff” should reflect ” “(a) … the seriousness of the offence, or the combination of the offence and one or more offences associated with it”, but disregarding the credit which would normally be due for time already spent in custody. We have already recited the way in which an associated offence is defined for these purposes ([5] above). The definition therefore includes both “ordinary” specified offences, and non-specified offences. Consideration of these statutory provisions led the Court to a number of cases, such as O'Brien and O'Halloran and to conclude that the combined totality of the offending should be reflected in the assessment of the notional term for the purposes of condition 3B. The amending legislation in the 2008 Act was enacted in the context of existing jurisprudence. If any change of practice had been intended, some indication to that effect would have been included in the amending statute. There is none. Moreover, if the offender's overall criminality requires a sentence in excess of the minimum laid down in condition 3B, and the court is satisfied of the necessary risk, it would be illogical for the protective powers inherent in imprisonment for public protection to be unavailable. Accordingly, condition 3B may be established notwithstanding the absence of an individual offence for which a four-year term would be appropriate. We should perhaps add that s.225(3) C excludes any deduction for the purposes of time spent on remand from the calculation of the minimum term for the purposes of condition 3B 35. We do not attach weight to the argument of the CCRC on the provisions of s.19 of the CJIA which have not been brought into effect. In our judgement, the practice of the courts and their interpretation of the legislation clear. It is, in what Moses LJ aptly described as “arcane provisions”, not sensible to take s.19 as empowering the court for the first time, when the court have plainly considered that they have had that power for a long time. 36. Nor does it matter that some of the offences occurred prior to April 2005 when the IPP regime entered into force, provided that the offence in respect of which the sentence of IPP was imposed occurred after the regime entered into force. The indefinite sentence is the result of that offence, but the minimum term is calculated by reference to all the offences. 37. It is clearly established that in assessing the dangerousness of an offender, the court was entitled to have regard to matters occurring before April 2005: see Stannard [2008] EWCA Crim 2789 . As the court is imposing punishment for all the offences before it, it must follow that the court must have regard to all the offences including those before April 2005 when assessing the notional determinate term. There is no infringement of the principle against retrospective penalties provided that the offence for which the IPP is imposed occurred after the entry into force of the IPP regime in April 2005. The sentence of IPP is imposed for the offence committed after the entry into force of the regime and is assessed by reference to the dangerousness of the offender at the time of sentence. The calculation as to the minimum term by taking into account the whole of the offending behaviour reflected in the other offences before the court, including those occurring before April 2005, cannot infringe any principle. There is no infringement against the principle of retrospective penalties, as the minimum term is calculated by reference to the determinate sentences to which the offender would have been subject at the time the other offences were committed; the penal element of the minimum term is the same as if determinate sentences had been passed. 38. We now turn to our conclusions in each appeal (5) The appeal in Delucca 39. In our view, for the reasons, we have given the court was entitled to have regard to the seriousness of all the offending before it and to impose the minimum term that it did. Although it is bad practice, it is right to observe that the court would have had power under the legislation to impose a consecutive sentence to reflect the overall criminality and HM Prison Service would have lawfully operated that sentence in exactly the same way as the minimum term that has been imposed. 40. Grounds were advanced specific to the facts of the case, it was contended that the notional determinate sentence was too long. It was necessary for us to consider those separately and for reasons then given, we do not accept that contention. (6) The appeal in Murray 41. In our view, for the reasons, we have given the court was entitled to have regard to the all the offences on the indictment and to impose the minimum term that it did. Murray’s offences plainly merited a very significant determinate term. 42. It could not be argued, and was not argued, that if the legal arguments failed that the minimum term was excessive or wrong in principle. As the legal argument has failed, the appeal must therefore be dismissed. (6) The appeal in Stubbings 43. As we have mentioned, the appeal in Stubbings was in the result confined to a submission that the minimum term of 12½ years was manifestly excessive. That submission was put forward by Mr Whitehead on behalf of Stubbings; it was a model of advocacy to which we would like to pay especial tribute for the way in which it was formulated and advanced. (i) The appellant’s role 44. It is necessary to set out the role the appellant played and to describe the activities which he procured and which brought upon him at the age of 55 a minimum term of such severity. 45. He had been a management consultant for some years and plainly had a comfortable lifestyle. However, in 2004, the appellant founded with others a closely-knit group of paedophiles. The group had about 50-60 active contributors. It operated internationally and included members from Europe, Japan and the US. It had an obvious hierarchy with members of the group having responsibility for functions such as membership, security and finance, as the group collected money which financed the production of pornographic material. The appellant was second in command of this worldwide group and there was clear evidence to show he played a key role in commissioning and procuring hard core paedophilic pornography. 46. It could be shown that in 2006, acting as treasurer of the group, he posted messages asking for funds to purchase more pornographic material. He set up a number of e-gold accounts so that members of the group could place money into them. It is also clear, as the judge found, that the appellant was interested in the commercial exploitation of the material beyond the group so that funds could be obtained for the production of more child pornography. 47. The group used highly sophisticated encryption methods to stop persons infiltrating the group. The members kept themselves anonymous and concealed their true identity from one another in an attempt to avoid detection. The appellant adopted several pseudonyms. To conceal his true identity, he went out of his way on occasions to try and ensure that people really thought he was a woman. The appellant played a leading role in the maintenance of this system. Key codes and passwords only known to members of the group were used. The pornographic material could only be accessed by passwords, encrypted and broken down so that they were very difficult to detect. 48. E-mail traffic demonstrated that the appellant knew that he was encouraging the production of extreme pornography for his own sexual gratification and that of others. Some of the children were very young; they came from different states including at least one in the Far East; the subject matter was often extreme with many forms of sexual activity and perversion being available. He knew that this was conduct that the law enforcement authorities were trying to detect and eradicate, as it involved the grooming, degradation and corruption of children worldwide. 49. Eventually law enforcement authorities gained access to the group and were able to find still and video images being distributed by members of the group. Although details of the appellant became known to the police by August 2006 he was not arrested until February 2008. 50. When he was arrested in February 2008, a vast number of images and films were found. There were 17,000 level 1 images and 31 films at level 1. There were 152 images and seven films at level 2, 1,219 images and three films at level 3. More seriously there were eight films and 1,514 images at level 4 and at level 5 there were 640 images and 85 films. 51. When the appellant was interviewed, he admitted: i) that he was a paedophile and he liked looking at indecent images of children. ii) He was a core member of the group, being one of the six initial members of the group. iii) Members of the group collected money for custom made videos; he would categorise what was received for distribution. iv) He had preference for young girls between the ages of eight and 10 as he believed at that age that the children were aware and had feelings and understood what was going on. He believed that at the ages of between eight and 10 young girls were able to decide whether or not they were enjoying themselves. He was therefore prepared to distribute that material. v) He liked to see girls of this age enjoying themselves in indecent images and videos. vi) His involvement began for sexual gratification and then became an obsession. 52. He told the psychiatrist who examined him that he had been interested in child pornography since 1997 and was sexually attracted to prepubescent girls. He considered that it should be legal to engage in the activities in which he had engaged and denied that they had any detrimental effect on the children. 53. After his arrest on 28 February 2008, the proceedings were progressed speedily; a PCMH fixed for 19 May 2008 had to be adjourned as the papers were only served the day before. At the resumed PCMH, he pleaded guilty to all the counts save one; he subsequently pleaded guilty to that on 13 August 2008. 54. The judge viewed a portion of the material found in the possession of the appellant; we were asked to do the same and did so. We feel compelled to give a brief description of the material, as it demonstrates the extreme nature of the degradation and perversions and consequent harm inflicted on the children and which the appellant played a significant role in procuring. (ii) Counts 4 and 7 55. Count 4 was the procurement between 1 January 2005 and 20 June 2006 of the production of pornographic videos of a child called Daphne. Daphne was at that time aged 9-10 and had a sister Kimberly 15 months older. Their father, a Belgian, had begun the sexual abuse of his daughters in 2005; he had placed numerous advertisements offering his daughters as photo models. Responses were made to those advertisements by paedophiles. In September 2005 the father used an Italian photographer to make a series of pornographic films involving the children. 56. There were several films involving these girls, one of which, an hour long and filmed in June 2006, formed the basis of count 4; it showed Daphne engaged in masturbation, using vibrators and then in sexual activities, including simulated intercourse and oral sex with her father. 57. It is clear from the e-mail traffic that Stubbings received money that went towards the production of these films. The e-mail traffic on Stubbings’ computer disclosed e-mails suggesting that the girls should masturbate to orgasm, they should use toys, they should moan with pleasure and engage together in sexual activity. Some of these e-mails made clear that the funds collected by the group should be used for these purposes. Some e-mails set out in detail the sexual gratification that the paedophile group had derived from the film that was the subject of Count 4 with further suggestions as to activities that the young girls should perform. The appellant responded to one request for more graphic images: “I would guess that could be possible”. 58. There were several films involving Kimberly, Daphne’s elder sister. Count 7 alleged the arranging or facilitating of child pornography between 20 June 2006 and 27 July 2006 in relation to one of these videos that showed Kimberley engaged in sexual activity, including masturbation, with Daphne. The e-mail traffic relating to these images was very similar to the e-mail traffic in relation to count 4. (iii) Counts 5 and 6 59. Two further counts, counts 5 and 6, charged the appellant with arranging or facilitating the commission of a child sex offence in respect of Daphne and Kimberly. Although separate offences to those in Counts 4 and 7 they were based on the same facts. (iv) Counts 8-10 60. These counts charged the making, distributing and possessing indecent images of children offences contrary to s.1(1) (a) of the Protection of Children Act 1978 . The images were largely still images; a number were at level 5 and some were moving pictures. The gravamen of the appellant’s conduct was his involvement in procuring the making of the images through the network of which he was a party. The images so procured included child pornography of the most extreme kind, including masturbation, vaginal and oral sex, ejaculation over children, the use of dogs for oral sex, bestiality, sadism through tying up with chains or ropes sometimes with objects inserted into the children’s vaginas, caning, birching and whipping and the binding of children to expose their genitalia or anuses sometimes in close contact with or being penetrated by adult male genitalia or other objects (such as knives, wires, needles or rods). In some the children were as young as 1 or 2; this was plainly appreciated as the name of the files contained references to “baby”; the majority were 11 or older. The pain inflicted on some children was evident in the still images from the expressions on faces or welts on their bodies; captions emphasised the degradation to which they had been subjected and the gratification that this would provide to the appellant’s group. For example, a naked 10 year old girl was shown with a knife held close to her vagina with the words “Cut me” written on her abdomen; a number of stills showing beating of naked children with captions such as, “This little pre-teen girl slave savaged from the intensity of the punishment after Daddy lovingly disciplined her”. Screams could be heard on the videos where children were beaten on their naked buttocks or had objects or penises inserted into their vaginas or anuses; bleeding could be seen in some videos. A number of the images showed children in the Far East, making clear the extent of reach of this group. (v) Count 1 61. There was a further count of indecent assault on a young girl who was a friend of his daughter beginning when she was 7 or 8 between January 1996 and December 2000; the appellant put his hand under her trousers on occasions and rubbed her over her vagina. Stubbings admitted doing so on one occasion. The appellant subsequently wrote an account of this which he circulated to the paedophile group; he claimed that account was an embellishment of the one occasion which he had admitted. (vi) The notional determinate term 62. The determinate terms which the judge indicated she would have imposed in arriving at that minimum term were: i) Count 4: The arrangement and facilitation of child pornography in relation to Daphne, an offence under s.50(1) of the Sexual Offences Act 2003 which has a maximum determinate sentence of 14 years. The determinate sentence that would have been passed, prior to any reduction for a guilty plea, would have been 12 years ii) On count 7: The arrangement and facilitation of child pornography in relation to Kimberly. The determinate sentence, prior to any reduction for a guilty plea, would also have been 12 years which would have been consecutive to the sentence on count 4. iii) Counts 9 and 10: Making and distributing indecent images of children offences under s.1(1) (a) of the Protection of Children Act 1978 . A determinate sentence, prior to a reduction for a guilty plea, would have been nine years. That would have been consecutive to the other sentences of 12 and 12 years respectively. iv) Count 8: Possession of indecent images of children; that would have received a concurrent term of 3 years. v) Count 1: Indecent assault contrary to s.14 of the Sexual Offences Act 1956 . A concurrent determinate sentence of a year would have been imposed. 63. The judge considered that total determinate sentence therefore prior to the plea of guilty would have been in total, 33 years. The appellant had been caught red handed and that he had but little option to plead guilty. He showed no remorse. The appropriate discount should be one of 25%. The judge therefore reached the notional determinate sentence as one of 25 years. (vii) The submissions 64. The approach to the sentence which it was accepted was rightly taken on counts 4 and 7 and counts 9 and 10 was that the appellant was at the centre of procurement and payment for and distribution of extreme child pornography. But it was submitted that as Parliament had specified a maximum term of 14 years for counts 4 and 7 and 10 years for counts 9 and 10, it was not correct in principle to take a starting point, having regard to the principle of totality, so close to the maximum on counts that were so closely related. Although it was accepted that the judge had been right to make the terms on counts 9 and 10 consecutive to the terms on counts 4 and 7, as counts 4 and 7 related to the same activity, the notional terms on each of those counts should not have been calculated by making the terms consecutive to each other. 65. It was also submitted that the judge had no paid any real regard to the personal mitigation; the appellant had lived an unblemished life and had no previous convictions; he would, on the basis of the minimum term imposed be 68 before he would be entitled to be considered for parole. 66. It was further submitted that the reduction for the guilty plea should not have been reduced to 25% and he should have received a full one third credit. The appellant had pleaded guilty at the earliest available opportunity. He had saved a 2-3 week trial with consequent saving of expense and reduced the stress that would otherwise have been caused to young complainants giving evidence. His lack of remorse should not have resulted in the reduction of the credit to which he was entitled by reason of his early plea. He relied in support of his submission on paragraphs 2.2 and 2.4 of the Sentencing Guidelines Council Guideline on Reduction in Sentence for Guilty Plea (2007 revision). This provides: “2.2 A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence. The reduction principle derives from the need for the effective administration of justice and not as an aspect of mitigation. 2.4 When deciding the most appropriate length of sentence, the sentencer should address separately the issue of remorse, together with any other mitigating features, before calculating the reduction for the guilty plea. Similarly, assistance to the prosecuting or enforcement authorities is a separate issue which may attract a reduction in sentence under other procedures; care will need to be taken to ensure that there is no “double counting”.” He also referred us to the passage in Archbold (2010 edition) at paragraphs 5-83a. The appellant should accordingly have received maximum credit. (viii) Our conclusions 67. The offences charged on counts 4 and 7 and 9 and 10 on the indictment were instances of conduct involving the commissioning and encouragement of child pornography exhibiting sexual perversion of an extreme kind involving a large number of children in several countries over a four year period. This criminality had to be reflected by calculating the notional determinate sentence on the basis that the terms should be consecutive. The judge’s approach cannot be faulted in any way. She rightly did not make the terms of imprisonment for the conduct reflected in counts 5 and 6 which was based on the same conduct as that charged in counts 4 and 7 consecutive to the terms on counts 4 and 7, but she was right in making the terms on counts 4 and 7 consecutive to each other. That was necessary properly to reflect the grave criminality involving different children. 68. The judge was also right to take starting points close to the maximum as these were for the reasons given offences of the most serious kind. There were no grounds to reduce them for totality – the high starting points viewed in the overall context properly reflected the seriousness of the offending 69. There was little mitigation in Stubbings’ personal circumstances. Such as there was, was properly reflected by the judge’s express consideration of his previous good character when determining that the minimum term should be half of the notional determinate sentence. The fact that he might not be considered for parole until he is 68 is irrelevant given the seriousness of his offending. 70. The judge was also correct in only allowing a reduction of 25% for his guilty plea. Stubbings was caught red handed; in the light of the material on the computer, he had no real option but to plead guilty. The case was overwhelming. That was in itself sufficient to permit a reduction of only 25%. 71. The judge also took into account a lack of remorse. Indeed, far from expressing remorse, Stubbings continued to claim that the degradation to which the children were subjected was enjoyed by them. His statement that he would not engage in this procuring or downloading child pornography was a statement designed to try and mitigate the severity of the sentence and not a statement of contrition or regret. As the judge said, the only matter that Stubbings regretted was that the security systems had failed to prevent his detection. 72. It is clear the judge took this lack of remorse into account as a reason for not giving him a greater reduction than 25%. Although, in the light of our conclusion, that the overwhelming nature of the case meant that a reduction of 25% was appropriate it is not strictly necessary that we address the way in which the judge took into account the lack of remorse. We agree, however, with the observations expressed in Barney and Barney [2007] EWCA Crim 3181 , [2008] 2 Cr App R(S) 37 where the court stated that questions of remorse cannot, despite the passage in the foreword of the original Sentencing Guidelines Council’s Guidelines and paragraphs in the Sentencing Guidelines Council’s revised Guidelines, be entirely divorced from the question of plea. We would again emphasise that it is important for judges to look at the sentence in the round and to reflect remorse, or in this case, lack of remorse in the sentence passed. It would have been possible to express the lack of remorse in this case in concluding there was no personal mitigation or, as the judge did, in refusing to increase the discount for a guilty plea. The result in setting the overall sentence would have been the same. 73. In our judgment, those who engage in the procurement of child pornography on a significant scale must expect severe punishment. It inflicted unimaginable degradation and very serious harm on children in many countries. The depravity it represents is beyond the comprehension of any ordinary person. Such conduct must be deterred and punished. Stubbings was at the centre of procurement of the extreme pornography described for a period of over four years. The harm he caused over that period is incalculable. A minimum term of the length imposed by the judge was entirely merited both to punish him and to deter others from engaging in this destructive and perverted activity. 74. The appeal is dismissed.

2010_03_31-2350.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/710/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/710

9e358261b3b1e73938d6a9ee379c5059ad9ff871175ee1c37b1846914319597a

[2005] EWCA Crim 2567

EWCA_Crim_2567

crown_court

No: 200503866/A2 Neutral Citation Number: [2005] EWCA Crim 2567 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 6th October 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE NEWMAN MR JUSTICE OPENSHAW - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 76 OF 2005 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A

No: 200503866/A2 Neutral Citation Number: [2005] EWCA Crim 2567 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 6th October 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE NEWMAN MR JUSTICE OPENSHAW - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 76 OF 2005 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL MR A HOSSAIN appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: This is an application by the Attorney General for leave to refer to this Court a sentence pursuant to section 36 of the Criminal Justice Act 1988 on the grounds that it is unduly lenient. The sentence was imposed on 20th June 2005 on the offender on an indictment containing counts of possession of a firearm or imitation firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968 and common assault. 2. The sentence was a sentence of two years' imprisonment suspended for two years with a suspended sentence supervision order and an order for compensation to be made to the victim of the assault and £500 towards the costs of the prosecution. 3. The offender is 22 years of age. On the occasion when the offences were committed he was with others in the early hours of the morning of 23rd October 2004 at a garage in Chichester town centre. He went to the garage shop. When he came out of the shop and got back into the car, in which he had arrived and which was then driven towards the exit from the garage, he then came across two men who were standing waiting for a taxi. That was Mr Wilkins and the victim of the assault, who was David Goldsmith. 4. For some reason the offender took offence at what the two had been doing and in particular Mr Goldsmith. He called out to Mr Goldsmith "Come over here". He got out of the car and stood face to face with Mr Goldsmith, carrying what appeared to Mr Goldsmith to be an air rifle with a broken coloured butt about a foot and a half long. Mr Goldsmith was asked "What, you looking at me? You're looking at me the wrong way". Mr Goldsmith was repeatedly abused. 5. Mr Goldsmith pleaded with the offender, saying that he did not want any trouble. He certainly was not looking at him. But this did not pacify the offender who put his face close to Mr Goldsmith and repeated the abuse. He then hit Mr Goldsmith with the butt of the gun to the forehead. He then turned his attention to Mr Wilkins. Mr Wilkins was undoubtedly frightened that the gun might be used. The incident then ended with the offender, and one other person from the car who had got out by then, returning to their car and being driven away. 6. When the offender was ultimately arrested, he was interviewed and made no comment. 7. When it came to the trial, he, in the first instance, pleaded not guilty. The trial proceeded to the end of the evidence of Mr Goldsmith. The jury was then discharged; and there was a retrial. 8. Immediately before the retrial commenced counsel for the offender sought an indication from the judge as to the likely sentence. The record shows that the judge indicated that the bracket for sentencing would be between two years and four years' imprisonment, four years being the appropriate figure if he was convicted after a trial. The result was that the appellant pleaded guilty on a short basis of plea which was to the effect, firstly, that the gun was in fact an imitation gun and not a real gun, and, secondly, that one aspect of Mr Goldsmith's evidence, namely that the gun muzzle had been put in his mouth, was not accepted as an accurate account of what had happened. 9. The matter was then adjourned for sentence. There were reports available to the judge. They indicated that the offender had a disturbed background. He has previous convictions. For an assault occasioning actual bodily harm he was made the subject of a community service order of 120 hours. For using racially threatening abusive or insulting words or behaviour he was sentenced on a separate occasion to a community punishment order. Then, finally, for using threatening, abusive, insulting words likely to cause harassment, alarm or distress he had been fined. 10. The mitigation was essentially based on the fact that he was on that night considerably upset because a person whom he considered to be his stepfather had been charged with sexual offences in relation to children who were in his care as a foster parent. It was in those circumstances that he allowed himself to lose his self-control and behave as he did in the garage forecourt. 11. Counsel acting on behalf of the offender at the trial submitted to the judge that the judge could consider a recommendation made in one of the pre-sentence reports that the court could consider a suspended sentence. In making his speech in mitigation he sought to identify what exceptional circumstances there might be. He did not find it easy to do so. Indeed, in a revealing passage in the transcript the following appears: "Your Honour may think I am struggling to put my finger on a particular exceptional circumstance. Your Honour knows the ... The Judge: Stop struggling. Counsel: Your Honour, thank you." It became apparent that the judge was indeed minded at that point to impose a suspended sentence. 12. In his sentencing remarks the judge dealt, firstly, with the credit that he was bound to give for the plea, albeit at a late stage, and accepted that the offence was so serious that only custody could be justified. He went on: "However, in the light of the mitigation, particularly your background and the extremely good reports I have on you from your character reference, I am going to suspend that for two years." 13. On behalf of the Attorney General Miss Cheema submits that the judge simply did not have any material upon which he could properly come to the conclusion that there were exceptional circumstances and those that he identified were simply not capable of amounting to exceptional circumstances. 14. We accept that submission. There was no basis upon which this sentence could have been suspended on the material before the judge. Accordingly, the sentence that he imposed must be considered unduly lenient, and the Attorney General is given leave to refer it. The minimum sentence that the judge could have imposed, as he himself had accepted and indicated prior to the plea being offered, was one of two years' imprisonment. We consider that that is the right sentence for us to impose today on this reference. Accordingly, the sentence will remain one of two years' imprisonment, but it will be an effective sentence of two years' imprisonment and clearly the supervision order which was dependent on that will go too. 15. The consequence is that he must now surrender. Are there any submissions, Mr Hossain, in that regard? 16. MR HOSSAIN: My Lord, no. He knows of the hearing. He was advised to attend. I have provided your clerk with his address, but he was aware of the hearing. 17. LORD JUSTICE LATHAM: What is his address? Is he still in the Chichester area? 18. MR HOSSAIN: Yes. It is flat 6 -- 19. LORD JUSTICE LATHAM: Then it seems to me that the appropriate order that we should make is that he should surrender himself within the next 24 hours to the police station in Chichester. 20. MISS CHEEMA: My Lord, it is the Chichester police station, wherever the central police station is. I am afraid I don't know where the central police station is. But within 24 hours, or by 12 noon tomorrow, or whatever. 21. LORD JUSTICE LATHAM: It is probably less complicated to say 12 o'clock tomorrow, otherwise we might get into confusion about what particular time we take the 24 hours from. 22. MR HOSSAIN: My Lord, does your Lordship take any action in relation to the compensation ordered by His Honour Judge Thorpe which your Honour may have seen has not been paid? 23. LORD JUSTICE LATHAM: Have you made any submissions in relation to that? 24. MR HOSSAIN: Given that it is now an effective sentence and no money has been paid towards the fine as it stands, it would be my respectful submission that that is removed and it is two years that remains solely not in conjunction with it. ( Pause While The Bench Conferred ) 25. LORD JUSTICE LATHAM: Miss Cheema, have you any submissions in relation to costs? We can say that it seems to us that it would not be appropriate for there to be a compensation order. 26. MISS CHEEMA: My Lord, I doubt, in those circumstances, that the sentencing judge would have made an order to costs if passing an immediate sentence of custody. 27. LORD JUSTICE LATHAM: That seems to me to be a sensible conclusion to reach. As a result we will simply replace the sentence that was imposed by the judge with a sentence of two years' imprisonment. 28. MISS CHEEMA: My Lord. 29. LORD JUSTICE LATHAM: And his sentence commences from the moment that he surrenders to the police. 30. MISS CHEEMA: My Lord, I also want to make this clear. The sentencing judge at the lower court did not distribute the sentence between the two counts in any way. Obviously the count of common assault would carry a lower maximum sentence. 31. LORD JUSTICE LATHAM: I think the right thing to do is to order it to be two years' imprisonment in relation to the first count and six months' imprisonment in relation to the common assault, and that will be a lawful sentence, both to be served concurrently. 32. MR HOSSAIN: Yes. 33. LORD JUSTICE LATHAM: All right. 34. MR HOSSAIN: Perhaps I was under the misapprehension that the count of common assault was left to lie on the file, but perhaps I am wrong in that. 35. LORD JUSTICE LATHAM: Let us have a look. ( Pause ). You are absolutely correct, Mr Hossain, it was ordered to lie on the file. So the only sentence is two years' imprisonment in relation to the possession of the firearm offence. So we don't need to complicate the issue at all. 36. MISS CHEEMA: I am sorry to have troubled the Court. 37. LORD JUSTICE LATHAM: Don't worry, Miss Cheema.

2005_10_06-598.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2567/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2567

5b59dc7db6a3852802c6405bb60514ace8cefab8209f2ee408c8aa864e8e9216

[2006] EWCA Crim 1226

EWCA_Crim_1226

supreme_court

Neutral Citation Number: [2006] EWCA Crim 1226 Case No: 2005/06310/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM WOOD GREEN CROWN COURT MR RECORDER KNOTT (T2005 0369) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26 May 2006 Before : LORD JUSTICE PILL MRS JUSTICE DOBBS DBE and MR JUSTICE UNDERHILL - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - BARRINGTON PAYTON Appellant - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2006] EWCA Crim 1226 Case No: 2005/06310/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM WOOD GREEN CROWN COURT MR RECORDER KNOTT (T2005 0369) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26 May 2006 Before : LORD JUSTICE PILL MRS JUSTICE DOBBS DBE and MR JUSTICE UNDERHILL - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - BARRINGTON PAYTON Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR J P COATES for the Respondent MR M STRADLING for the Appellant Hearing date : 28 April 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill : 1. On 30 September 2005 in the Crown Court at Wood Green before Mr Recorder Knott and a jury, Barrington Payton was convicted of possessing a Class C controlled drug with intent to supply. On 7 November 2005, he was sentenced to 12 months imprisonment. No separate penalty was imposed for an offence of possession of a Class C controlled drug, to which Payton had earlier pleaded guilty. He appeals against conviction by leave of the single judge. 2. On 10 January 2005, police officers entered a flat in which the appellant was living, following a report of a suspected burglary. They discovered 46.38grams of cannabis in a sports bag, divided into eleven sealed bags. A search revealed one thousand self-seal plastic bags, similar to the ones containing cannabis, small digital scales and a safe containing £7,800 in cash, made up mainly of twenty pound notes in good condition. No lists of customers, debts or suppliers were found. The appellant was courteous and co-operative throughout the search and provided the key with which to open the safe. The street value of the cannabis was about £115. 3. At interview, the appellant said that the scales and some of the self-seal bags were not his but he had found them at the flat. The money had come to him as a result of purchasing and selling at a profit salvage vehicles. He said that the cannabis was all for his personal use. He was saving up for plastic surgery to his face. A police officer gave evidence that a drugs dealer handed cash by his customers would not normally want to retain the bank notes he had actually received, and which may be contaminated. She said that very often drugs money was laundered. 4. The appellant gave evidence. He was depressed and unhappy following an attack on him and he had started smoking cannabis to cheer himself up. His habit cost him thirty to forty pounds a day and the quantity found by the police would last him for three or four days. He preferred to buy a larger amount to keep him going for a few days. He measured the cannabis out in packets so that he could space out his consumption. He was trying to save £10,000 to finance cosmetic surgery on his face. 5. Of the £7,800, just over £2,000 belonged to a woman who had been paying him instalments in expectation that he would find her a car, do it up, and sell it to her. He gave particulars of a Vauxhall Tigra and a VW Polo which he had purchased and re-sold. The documentation had been lost. He had never supplied or intended to supply cannabis to anyone. 6. The woman gave evidence that she had given the appellant the sum of just over £2,000 which was her way of saving for a cheap car. She produced bank statements showing appropriate payments out. There was also evidence from a spray painter and a mechanic confirming that they had done some work for the appellant on a salvaged Vauxhall Tigra and a salvaged VW Polo. Another witness said that he had bought a motor cycle from the appellant. 7. We propose to take several points raised on behalf of the appellant very briefly. By reference to the case of Morris [1995] 2 Cr App R 69, it is submitted that evidence of the substantial sum of money found in the flat should not have been admitted. Having regard to the circumstances, the judge was in our view entitled to admit the evidence. The judge gave an appropriate direction to the jury which included a statement that possession of the money was only relevant to the issue in the case if the jury rejected any explanation for that money which had been put forward. The judge made clear that the issue in the case was whether the appellant was in possession of the cannabis with an intention to supply it. The judge also summed-up, in considerable detail, the evidence of and on behalf of the appellant giving reasons for possession of the money. 8. We do not accept the submission that the judge should not have permitted the prosecution to cross-examine the appellant in the way they did about his possession of the money. The prosecution were entitled to test his explanation in cross-examination. The judge directed the jury as to the burden and standard of proof at the beginning of his summing-up. Near the end, he added: “He [the appellant] has, of course, given evidence and brought forward evidence about the money but it is not for him to prove his defence, it is for the prosecution to prove the case against him”. 9. It is submitted that a fuller direction should have been given as to what was meant by money laundering, an expression used by the judge in his summing-up. The point arose because of the evidence of the police officer, as summarised by the judge: “In particular she explained what perhaps is really perfectly obvious, that a drugs dealer who is handed cash by his customers would not normally want to retain the bank notes which he had been given and very often drugs money is laundered, that is to say one way or another it is changed into money or property which cannot be traced. Money which is clean, you might say.” 10. Reference should have been made, it is submitted, to the definition of money laundering in the Proceeds of Crime Act 2002 (“ the 2002 Act ”) with its reference to “the process by which the proceeds of crime are converted into assets which appear to have a legitimate origin, …” 11. We see no merit in this ground. Of course money laundering had not been charged as an offence in itself but the evidence was potentially material to the prosecution allegation that the appellant intended to supply drugs. Replacing old bank notes with notes in good condition is a form of money laundering and, depending on what they made of the evidence, the jury would easily have understood the relevance of the term. It was also open to the jury to accept the defence submission that any replacement of notes was not money laundering because it would not be particularly effective for that purpose. 12. Mr Stradling’s submission on behalf of the appellant that the judge misdirected the jury on the issue of the appellant’s character requires more detailed attention. The appellant had two cautions for possession of cannabis and two convictions for possession of cannabis. He had pleaded guilty to those offences, as he had to the charge of possession in cannabis in the present case. His defence was that he possessed the cannabis found in the flat for his personal use. On that basis, the convictions were admitted in evidence. 13. Counsel submitted, in the absence of the jury, that in those circumstances, a good character direction should be given. The judge stated: “I do not think a full good character direction is appropriate but I will certainly bear in mind what you say in giving a direction which will fall a little short of the full good character direction”. 14. In his summing-up, the judge stated: “We cannot say strictly speaking can we that he is a man of good character because he has that one previous conviction and two previous cautions but what I am saying to you is that you must not hold those against him because they do not throw any light on the issue in this case”. In the absence of the jury, counsel requested a further direction but his request was declined. 15. Thus the admitted criminal conduct was small in scale and limited to possession of cannabis. The appellant had admitted the offences and also admitted being a continuing user of cannabis. His defence was that the cannabis found in his flat was for his own use. The issue in the trial was as to whether he intended to supply cannabis to others. That depended on his credibility. He gave evidence, and gave detailed explanations, as to which there was some supporting evidence, of his conduct. There was nothing adverse to his credibility in his record. 16. Where a person of good character has given evidence, he is entitled to a direction in the summing-up which accords with the principles stated in R v Vye [1993] 97 Cr App R 134 . The question is whether, in present circumstances, the appellant had lost that entitlement. It is also in issue whether such entitlement as he did have was met by the judge’s direction that the jury “must not hold those [conviction and cautions] against him because they do not throw any light on the issue in the case”. 17. Mr Stradling relied on the decision of this court, Russell LJ presiding, in Heath (unreported, 1 February 1994). The judge told the jury, as in effect the judge in the present case told them, “entirely to ignore them [the convictions] as far as this case is concerned”. The convictions, this court held, were “so lacking in significance to the extent that the appellant should be regarded as a man of good character” and the court held that a good character direction was required. The conviction was quashed. 18. In more recent cases, for example Durbin [1995] 2 Cr App R 84, Aziz [1996] 1 AC 41 and Gray [2004] EWCA Crim 1074 , guidelines on the subject of character have been stated and re-stated. It is not necessary for the purposes of this appeal to set them out. Neither is it necessary to consider the difficult question of the extent of the judge’s discretion not to give a good character direction when there are convictions but they are old, or limited in nature, or remote from the issue in the case. 19. However, once the judge formed the view he had formed, and formed to the extent of directing the jury not to hold the convictions against him, the appellant was entitled at least to a direction to the effect that his credibility was intact and undamaged either by the convictions or otherwise, and that the jury should take that into account in assessing the credibility of his evidence and the explanations he had given. A judge who has decided that a defendant is, for the purposes of the trial, of good character, must confer the benefit on him of a good character direction. The failure to do so, in present circumstances, amounting to a fatal misdirection and the conviction must be quashed. 20. The judge retains a discretion, in the light of the authorities, as to how full the direction as to good character needed to be. A judge also retains a discretion, in our judgment, as to whether, in other circumstances, a direction need be given at all. In applying the basic principles, the jury should be directed as to the relevance of character in the particular circumstances of the case and what is said should be tailored to provide what is fair in the particular circumstances. The very detailed principles set out in cases such as Gray , valuable as they are, should not, in our judgment, be taken as prescribing precisely what a judge is to do. Circumstances vary infinitely and the judge’s task is to ensure fairness to the parties in the particular case, having regard to the underlying principles and the issues before the court. 21. A further ground of appeal is in an alleged abuse of process. Defence advisers became aware that a claim to forfeiture was proceeding in the magistrates’ court, with respect to the sum of £7,800, concurrently with the Crown Court proceedings. The appellant had disclosed a considerable amount of material in the forfeiture proceedings in advance of the criminal trial. Mr Stradling made written representations to the magistrates’ court (he was not instructed in these proceedings), suggesting adjournment of proceedings there. The appellant did not have legal aid for, and was not represented in, the proceedings before the magistrates. 22. The primary submission is that, in being required to defend the forfeiture proceedings in advance of or at the same time of the criminal trial, there is a risk that the appellant’s defence at the trial will be prejudiced. Other parties, such as the woman who claimed that a substantial part of the money was hers, were also involved in the forfeiture proceedings. 23. The judge summed-up in this way: “In this context it appears that while we have been preparing for the defendant’s trial in this court, in another court they have been preparing for a completely different hearing to decide what should be done with the money, the £7,800. It is, said DC Rourke, in the context of that other case that the defendant has supplied information about the money and the cars and, in particular, has given the police the names of witnesses who could verify his account.” 24. No formal abuse of process application was made in the Crown Court. We do not consider that, in the event, abuse of process has been established (or prejudice to the appellant) but we were sufficiently concerned to invite written representations about the practice followed. 25. The result has been a very helpful note, for which we are grateful, submitted by Mr A Bird, based on a report from the Metropolitan Police to the Crown Prosecution Service (“CPS”). Chapter 3 of Part 5 of the 2002 Act empowers a magistrates’ court to order the forfeiture of cash in summary proceedings initiated by a constable or customs officer on the basis that it is recoverable property, as defined. Amongst the points made are that it is inevitable in some cases that investigation for the purpose of magistrates’ court proceedings takes place during the currency of criminal proceedings. It is pointed out that the parties to the civil proceedings will not be the same as the parties to the criminal proceedings. The CPS has no locus in the civil proceedings and third parties may, as in this case, claim an interest in the cash involved. 26. It is accepted that “close liaison” would be expected between investigators in the civil and in the criminal proceedings. It is submitted that “the overwhelming likelihood is that the police would lodge an application for forfeiture (and so effect the detention of the cash and preservation of the status quo) but then seek an adjournment of the application until criminal proceedings (including any appeal) are concluded.” The advantages of this course are described in the note. They include the preservation of the status quo and ensuring that the defendant is “not embarrassed into having to rehearse what may be part of his defence to the criminal allegation”. The defendant is unlikely to be in receipt of public funding in the civil proceedings. The potential saving of expense by adjourning civil proceedings is also mentioned. 27. In this case, magistrates authorised continued detention of the money seized on 12 January 2005. DC Naismith lodged an application for forfeiture on 16 March 2005. The appellant was charged with the criminal offence on 18 April 2005. There were directions hearings in the magistrates court and the hearing there was fixed for 3 October 2005, that is a date after the criminal trial. 28. The note continues: “It is not clear whether this was fortuitous. Certainly had minds been turned to it this is a case where the finding of the cash was being relied upon as evidence of intention to supply, and submissions would have been made that the civil proceedings should not be tried until the conclusion of the criminal proceedings.” 29. Witness statements were taken and other enquiries made by DC Naismith for the purpose of the civil proceedings. There is an issue as to whether he interviewed the appellant. The note continues: “[The] witness statements were disclosed and so there was in fact no lack of disclosure. What is surprising is that the CPS were apparently completely unaware of the cash forfeiture proceedings, and so had not briefed counsel. There was clearly a lack of communication at some stage and lessons have been learned from this case.” 30. Mr Stradling has also supplied a helpful note. He submits that it is highly undesirable that civil proceedings for forfeiture should take place before or concurrently with criminal proceedings. “There is a real potential unfairness for a defendant to be put in the position of giving evidence on oath about matters which could affect his criminal trial before his criminal trial takes place. If the defendant chooses not to give such evidence, it might well result in forfeiture of cash seized before his criminal trial has concluded, or even started”. The protection provided for defendants by section 17(6) of the 2002 Act , in Part 2 dealing with confiscation proceedings, does not exist in Part 5 , it is submitted. 31. The concern we expressed at the hearing is reflected in the contents of those notes, and the submissions of Mr Stradling. Other than to draw attention to the potential problems involved, we do not see a need, having determined the appeal, to investigate further in this case the issues arising. It is not necessary for us to do so and inappropriate in the absence of fuller oral argument and a live issue. It is, however, important that care is taken to ensure that the fair trial of a defendant is not prejudiced by anything arising in civil proceedings in the magistrates’ court and steps should be taken accordingly. Liaison between police acting under Part 5 of the 2002 Act and the prosecuting authority is essential. In view of what happened in this case, the issue should be addressed by them. 32. It is for the reasons given earlier in this judgment that this appeal was allowed at the conclusion of the oral hearing.

2006_05_26-820.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1226/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1226

fbb4d03511fef21b20cd04e3e3c33445ad74841048aab4df794ca682c4fad365

[2008] EWCA Crim 248

EWCA_Crim_248

crown_court

No: 200702563/C2-200703418/C2 Neutral Citation Number: [2008] EWCA Crim 248 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 28th January 2008 B e f o r e : LORD JUSTICE LATHAM MR JUSTICE ROYCE SIR PETER CRESSWELL - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIMON ADAM BENNETT CHRISTOPHER ANDREW TURNER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Mer

No: 200702563/C2-200703418/C2 Neutral Citation Number: [2008] EWCA Crim 248 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 28th January 2008 B e f o r e : LORD JUSTICE LATHAM MR JUSTICE ROYCE SIR PETER CRESSWELL - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIMON ADAM BENNETT CHRISTOPHER ANDREW TURNER - - - - - - - - - - - - - - - - - - - - - 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 Lloyd appeared on behalf of the Applicant Bennett Miss S Ritchie appeared on behalf of the Applicant Turner Mr P St J Stevens appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 23rd April 2007 in the Crown Court at Maidstone, the two appellants were convicted of two counts of wounding with intent and four counts of attempting to inflict grievous bodily harm. They were sentenced as far as the appellant, Bennett, was concerned to 4 years' imprisonment and as far as Turner was concerned to imprisonment for public protection with a minimum term of 30 months. They were also disqualified from driving. 2. The charges arose out of a horrific incident of deliberate driving for the purposes of causing injury as the jury's verdict indicated. It occurred in the early hours of 24th July 2005. A group of young people had left a nightclub in Strood, in Kent, and eventually went to the ESSO garage in Cuxton Road where they stopped to buy something to eat. While they were on the garage forecourt a car drove in which was occupied by four young men. They were being loud. There was an altercation to which we will return between one of the group of pedestrians and one of the people in the car. The group then left the forecourt to walk along the road when, the prosecution case was, the car which had been in the garage and had been involved in the altercation, was driven deliberately onto the pavement and into the group. The number of counts reflect the fact that the group consisted of six young people, two were significantly injured, hence two counts of wounding with intent. The others were fortunately not seriously injured but the counts reflect what the prosecution say must have been the intent not only of the driver. But also the passenger. It was the prosecution case that the driver was Turner and the passenger was Bennett. 3. As far as the evidence was concerned, it consisted of the evidence of the six young people, two of whom were called to give evidence, the others were read. The position was, as far as that evidence was concerned, that at one point one of the group called Reggie Smith, one of those whose evidence was read, said that he went over to the car in the garage because he thought the front passenger was shouting at the girls in the group. He told them he did not want any trouble and they should leave his friends alone. The car then drove away. Two of the witnesses who were called agreed that such an incident had occurred. 4. None of the group of pedestrians admitted to knowing any of those in the car; and after the incident there was an identification procedure, at which none of them was able to identify either of the two appellants. The evidence against the appellants consisted almost, but not wholly entirely of the contents of an interview that the police had with a young man, Darren Jodka. Darren Jodka was identified on a CCTV video recording by a police officer as being the front seat passenger in the car. That television coverage was of the forecourt of the garage. Jodka was arrested on suspicion of attempted murder and interviewed twice under caution. During the course of those interviews, for the moment taking it shortly, he identified that at the relevant time, that is at the time the car struck the pedestrians, the car was being driven by Turner and that Bennett was the front seat passenger. 5. On that basis he was called by the prosecution as a witness, the prosecution having determined not to charge him. At an aborted trial said that he could not remember. At the trial with which we are concerned, he was called to give evidence and in-chief once again stated that he could not remember the events of that night. The prosecution applied for him to be treated as hostile and the judge granted that application. The prosecution then sought to put in the contents of the interviews under section 119 of the Criminal Justice Act 2003 . The judge, after hearing argument, concluded that the contents of the interviews were admissible under section 119 . It was then submitted on behalf of the appellant that if the contents of the interviews were admissible, nonetheless they should be excluded under section 78 of the Police and Criminal Evidence Act. The judge rejected that submission and the contents of the interviews were accordingly played to the jury. 6. At the end of the prosecution case counsel for both appellants then submitted that there was no case to answer, relying upon the well-known cases of Galbraith and Shippey , but also relying on the provisions of section 125 of the Criminal Justice Act 2003 . The judge rejected those submissions, held that there was sufficient evidence upon which a jury properly directed could convict and allowed the matter to go before the jury. 7. At this stage we should state that in addition to that evidence, that is the evidence of those statements, there were two further pieces of evidence which were of significance. One was the evidence of a Gerald McKenna, which was also read to the jury, in circumstances with which we are not concerned, and that evidence was to the effect that he had bought the car, which was clearly identified as the car in the incident, in mid July 2005, and that on the evening of 23rd July 2005, that is the evening of the night on which the incident occurred, he had lent that car to the appellant, Bennett, whom he had known for a few months. The following day the appellant, Bennett, told him that the car had been stolen. 8. The second material part of the evidence was the evidence of two witnesses who were also pedestrians in the area at the time, one was Steve Nifton. He was with a friend, Shane Burke and another, when they saw a car, which accorded with the description of the car which had been owned by Gerald McKenna, driving round in Cuxton Road. The people in the car were shouting as if they were looking for trouble. The next time he saw the car, he said minutes later, it had stopped and all four doors were open and the occupants appeared to change seats. It drove back to the roundabout and then he saw it eventually revving its engine, mounting the pavement in front of him and driving into the group which was the group of pedestrians who were hit by the car. The evidence of Shane Burke and his friend was also read. They said that when the car stopped in front of them, they saw one of the back seat passengers get out and swap places with the driver and the other back seat passenger swapped places with the front passenger. 9. The jury, on the basis of that evidence, the detail of the evidence of Jodka we will return to, convicted the appellants after they themselves had not given evidence, and after a summing-up terms about which no complaint could possibly be nor has been made. 10. The essential grounds of appeal relate to the fact that the judge permitted the evidence of the interviews of Jodka to be put before the jury. Further it is said that even if he was correct in permitting them to go before the jury, he wrongly refused to conclude that there was no case to answer, either in the Galbraith sense, or pursuant to the requirements of section 125(1) of the 2003 Act , on the grounds that the evidence was so unconvincing that any conviction of the offence would be unsafe. 11. There is no challenge to the judge's conclusion that the evidence, that is the content of the interviews, was admissible pursuant to section 119 of the 2003 Act and to put in its context it may be appropriate just to set out the terms of that section which clearly changes substantially the admissibility of previous inconsistent statements. It provides as follows: "(1) If in criminal proceedings a person gives oral evidence and— (a) he admits making a previous inconsistent statement, or. (b) a previous inconsistent statement made by him is proved by virtue of section 3 , 4 or 5 of the Criminal Procedure Act 1865 (c. 18). the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible. (2) If in criminal proceedings evidence of an inconsistent statement by any person is given under section 124(2)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible." 12. As can be appreciated, that makes a substantial change in the previous evidential position of such statements and it is, as we have indicated, accepted that the consequence was that, in the light of the fact that that the witness, Jodka, asserted that he could not remember the events of that evening, it meant that the material contained in the interviews, which set out, as we shall see, an apparently clear and coherent account of what happened that evening was properly described a "previous inconsistent statement". 13. The detail of the statement may best be set out at this stage in order to enable the arguments under section 78 and the arguments relating to the question of whether or not the matter should have been left to the jury to be properly understood. The transcript of the relevant part of the interview reads as follows. The reference to "Chris" will be to Turner and the reference to "Simon" will be to Bennett: "Chris said: 'Let's go to the petrol garage and get some more credit'. So we went to the petrol garage and then we pulled up just near like the cash point and Chris said: 'Oh no, don't go in there, there's a boy there there I can't... I have rows like him like... he wants to fight me.' So Danny started shouting out the window saying 'what him there wants to fight ya?' So the boys turned round, noticed it was Chris and come over to the car, opened my door. I was in the front passenger and said: 'What do yous want?' and Chris was trying to hide in the back and said: 'You're Chris Turner ain't ya, get outta the car, I'll fight ya'. So I said: 'Come on, let's just go'. Boy said: 'If you don't want no petrol get out the petrol garage and go'. So we drive off up the top of the road, got to the roundabout near Amadeus, Cuxton Road, and Chris said: 'Let me drive'. So Chris got in the driver's seat, Simon went to get in the back. I said: 'Oh Simon let me get in the back'. So I got in the back, me and Danny was in the back, Simon was in the front passenger and Chris was driving. Chris said: 'I'm gonna run him over', so we went round and Simon's going: 'Don't be silly don't be silly'. Chris parked up on the main road on the edge and Simon said: 'Don't be silly, you can't do that' and Chris said 'No... I can't do it' so we swapped back over and we're sitting there and I said: 'Take me home Simon' and Simon said: 'We're going ....' Chris said: 'Oh fuck this let me do it'. So they swapped back over I said 'Come on, Dan, let's get out'. Chris said to me: 'Before I do this Del I want you to get out, coz I don't want your uncle on my back'. So I said: 'Come on Dan, let's you and me get out' and Danny said to me: 'No don't be silly, he ain't going to do it'. So I shut the door and sat down, before I knew it, Chris started the engine up and said: 'Come on let's get home' just driv off all normal and people was walking in front of us and Chris put his foot down and just headed for the lot, and we just driv off, got back to Gravesend, Valley Drive and me and Danny said: 'Let us get out'. Chris was saying 'No, let's just get home'. So Danny ripped the handbrake up, we jumped out and Simon and Chris driv off. I got to my front door, Chris phoned me up and he said: 'If you grass me up, I'm gonna do what I just did to them... I'm gonna to do what I just done to you what I just done to them. I said 'I won't say nothing, I won't say nothing'. He said 'You best not' and then cut the phone off and I went to bed and that was it." 14. On behalf of the appellant, Bennett, Mr Lloyd submitted to the Recorder, as did Miss Ritchie on behalf of the appellant, Turner, that the circumstances were such that it could properly be said in terms of section 78 that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the omission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not admit it. 15. They also referred the judge to section 114 of the Criminal Justice Act 2003 , which sets out in sub section (2 ), the matters to which the court must have regard, when dealing with admission of hearsay evidence. It was submitted that in the present case the evidence was inherently unreliable given by an unreliable witness in circumstances such that the court could not properly place any reliance on it at all. That made it a statement which should not be put before the jury as it would be prejudicial to the fairness of the trial. The basis upon which those submissions were made included the following. Firstly, the Crown's case against each of the defendants was based wholly on the evidence of the witness who had a motive to lie; having been arrested on suspicion of attempted murder, his account was bound to be an exculpatory account in all the circumstances. He was therefore giving an account which should not properly found the only substantial evidence against these appellants. Secondly, Jodka was a confessed drug user. Thirdly he was a man of bad character, indeed he was serving a prison sentence at the time. Fourthly he was, on the prosecution's own case, a liar, in that this material was being put before the jury on the basis that he was lying when he said he could not remember. Fifthly the evidence of what happened, according to him, at the garage, was inconsistent with the evidence of the pedestrians because his evidence suggested that at least one of the pedestrians knew the appellant, Turner, whereas none of the pedestrians admitted knowing Turner or recognising him at a later stage. In all those circumstances, it was submitted it was wholly inappropriate to put the matter before the jury. 16. The Recorder considered those submissions and dealt with them in detail. It is acknowledged on behalf of both appellants that he directed himself clearly and correctly as to the provisions of section 78 and the circumstances in which that discretion should be exercised. It is also accepted that he carefully considered the matters set out in section 114(2) of the 2003 Act which were relevant to the consideration of the exercise of his discretion. But nonetheless the appellants submit he came clearly to the wrong conclusion. 17. We cannot see how that argument can succeed. As far as section 78 was concerned, the position was that the appellants were perfectly entitled to and able to cross-examine Jodka. Clearly, the fact that he was purporting not to remember what happened meant that they were unable to ask him to replicate the account but that did not prevent them from putting to him their case, cross-examining in relation to the account, in relation to its internal consistencies such as they were or external inconsistencies such as they were; and of course it did not preclude them in any event from them being able to give their account, if they so wished, to the jury at a subsequent stage. There was, it seems to us, ample material to justify the Recorder concluding that in the light of the evidence from the witness, McKenna, that the appellant, Bennett, had at the very least access to the car at the relevant time, and the evidence of the CCTV camera and the evidence of the police officer placing Jodka in the passenger seat, as he himself said in interview, and finally the evidence of the witnesses who saw what happened in the road, that is the changing places of those in the car, a matter which otherwise would only be known to those who were in the car, that the material was not so undermined by any other evidence as to suggest that it could not properly be relied on by the jury. Further, it is important in this context, and also when we consider the later submissions in relation to leaving the matter to the jury, to recall that the jury had the benefit not merely of a transcript of the interviews, but hearing the recording of the interviews themselves from which the jury could derive at least some assistance. The judge clearly considered that he derived assistance from it and expressly so stated. We can see accordingly nothing in the present material before us which could justify the conclusion that the judge exercised his discretion in a way with which this Court could disagree the extent of concluding that the consequence of the admission of this evidence rendered the verdicts unsafe. 18. We turn then to the submissions made at the end of the prosecution case that the case should be withdrawn from the jury. There is a substantial overlap between the way in which the matter was put on the basis of Galbraith , on the one hand, and section 125 on the other. Section 125(1) provides: "(1) If on a defendant’s trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that— (a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and. (b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe. the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury." 19. This Court has considered the interrelation between those provisions and the classic submissions of no case to answer based upon Galbraith in the case of Joyce and Joyce [2005] EWCA Crim 1785 , where at paragraph 19, Rose LJ, giving the judgment of this Court said: "It is submitted, and we accept, that section 125 should not be regarded as requiring a higher standard than Galbraith. But it provides, in accordance with the Law Commission's recommendation in paragraphs 11.31 and 11.32 of their report, an additional safety valve obliging a judge to direct an acquittal where the previous statements are particularly unpersuasive." 20. The point is made on behalf the appellants that we should approach this case on the basis that it is a very different case from the case of Joyce and Joyce . Joyce and Joyce was a case involving identification. Later on in the judgment, Rose LJ sets out the circumstances in which the identifications were made, in terms which make it clear that the identification evidence was strong. It was a case where the statements relied upon were statements pursuant to section 9, in other words statements in which the witnesses had each indicated they were stating the truth as to the matters set out in those statements. This case is very different. This case is concerned with the contents of interviews where there is no statement of truth. Finally and most important, it is submitted that this case is concerned not with three statements but one statement and one statement from a witness whose evidence has the deficiencies which were identified in the submissions relating to section 78. 21. Accordingly it is submitted on behalf of the appellants, this was clearly a case where the court should have been driven to conclude, using either the Galbraith test, or section 125 , that the evidence was unconvincing. The difference clearly between section 125 and Galbraith is that there is statutory obligation in section 125 to stop the case and that, it is submitted should have been done in this case. It is submitted that this is the first time when such evidence has been put before the court and before a jury in a trial and that it represents a radical departure from previous practice. We agree. But the plain fact is that the provisions with which we are concerned in this case (essentially section 119 ) have undoubtedly changed the landscape of a criminal trial. It is now possible to put before juries evidence which was previously inadmissible. That seems to us simply to be the inevitable consequence of the statutory provisions. The protection for defendants is contained in the provisions which the appellants have prayed in aid, namely section 78 and section 125 of the 2003 Act and indeed by the fact that when considering how to approach submissions in relation to section 78 in this type of situation the court is greatly helped by the provisions of section 114(2) of the 2003 Act . This Recorder accorded to the appellants in this case full consideration of those safeguards. He did not, in our judgment, err his application of them. It has to be remembered that this is not a case where the evidence of the interviews was put before the jury in a vacuum. There was the other material to which we have referred, which was at least consistent with the basic thrust of the content of the interviews. In those circumstances, provided that the jury was given proper warning as to how to approach this material, it seems to us that the judge was perfectly entitled to ask the jury to consider it. It has to be remembered that in this case, apart from a written statement handed in to the police by the appellant, Bennett, which dealt, but only shortly, with the fact that he accepted that the car had been bought by his friend, Gerald McKenna, but denied that he had anything to do with the incident on the 24th and did not know what had happened to the car, these two appellants gave no account of the events that night either to the police, or to the jury. In those circumstances, the jury were perfectly entitled to conclude that the evidence of Jodka was sufficient to satisfy them so they which were sure that the appellants were present in the car as he described. 22. That leaves the submission on behalf of appellant, Bennett, that, even if the jury were entitled to consider the interviews, nonetheless the content of the interviews did not justify the conclusion that he was a participant in the crimes carried out by Turner. The judge concluded for the purposes of sentencing that he was part of a joint enterprise. He accordingly must have taken the view that the jury's verdict what was to the effect that when in the narrative given by he Jodka the appellant Bennett got out of the driver's seat on the second occasion and went to the passenger seat, leaving Turner to get into the driver's seat, he knew that Turner was intending to drive at the pedestrians or appreciated that there was a real risk that is what would happen. It seems to us that was a perfectly permissible interpretation of the content of the interviews and the judge directed the jury impeccably as to that aspect of the case. 23. It follows that, in our judgment, the jury were entitled to come to the conclusion that they did in relation to the guilt of the appellant, Bennett. We accordingly dismiss these appeals.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/248/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/248

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[2007] EWCA Crim 3032

EWCA_Crim_3032

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Neutral Citation Number: [2007] EWCA Crim 3032 Case No: 2000/6425C1/24C1/23C1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/12/2007 Before : LORD JUSTICE LATHAM MR JUSTICE GIBBS and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN –v- CHARGOT LTD TRADING AS CONTRACT SERVICES RUTTLE CONTRACTING LTD GEORGE HENRY RUTTLE - - - - - - - - - - - - - - - - - - - - (Transcript of the Han

Neutral Citation Number: [2007] EWCA Crim 3032 Case No: 2000/6425C1/24C1/23C1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/12/2007 Before : LORD JUSTICE LATHAM MR JUSTICE GIBBS and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN –v- CHARGOT LTD TRADING AS CONTRACT SERVICES RUTTLE CONTRACTING LTD GEORGE HENRY RUTTLE - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Richard Lissack QC and Ben Compton (instructed by Keoghs, Solicitors, Bolton ) for the Appellants Timothy Horlock, QC and Gary Woodhall (instructed by Holdens, Solicitors, Lancaster ) for the Respondents Hearing dates : 7 th November 2007 - - - - - - - - - - - - - - - - - - - - Judgment Post Judgment Discussion Lord Justice Latham: 1. On the 10 th November 2006 in the Crown Court at Preston, before the Recorder of Preston, the first appellant, Chargot Ltd, was convicted of contravening section 2(1) of the Health and Safety at Work Act 1974 ( the Act ); the second appellant Ruttle Contracting Ltd, was convicted of contravening section 3(1) of the Act ; and the third appellant, George Henry Ruttle was also convicted of contravening section 3(1) of the Act . The first appellant was fined £75,000 and ordered to pay £37,500 costs. The second appellant was fined £100,000, and ordered to pay £75,000 costs. The third appellant, George Henry Ruttle, was fined £75,000 and ordered to pay £103,500 costs. They appeal against conviction by limited leave of the single judge, and renew their applications for leave to appeal against sentence. 2. At the material time, the first and second appellants were members of the Ruttle Group of companies, of which the third appellant was the managing director. The Ruttle Group owned Heskin Hall Farm near Chorley in Lancashire. Between October 1998 and January 2003 extensive project work was carried out at the farm which included building a car park. Notice of this project had not been given in accordance with the provisions of the Construction Regulations 1994 prior to the work commencing. 3. On the 10 th January 2003, Shaun Riley was driving a dumper truck at the farm in relation to the construction of the car park. It does not appear that he was the usual dumper truck driver. He had been asked to drive it that day by Barry Draper, whose was the foreman on the site. The task at the relevant time was to take a load of spoil approximately 500 yards to a hole into which it was to be deposited. As Shaun Riley was driving down a ramp, the dumper truck fell onto its side; and for reasons which were never fully resolved, he was buried under the spoil and died. 4. Put shortly, the prosecution case against the three appellants was that as far as the first appellant was concerned, it was the employer of Shaun Riley and the other workmen on the site, and had failed to ensure their safety. As far as the second appellant was concerned, it was the company carrying on the undertaking, namely the project at Heskin Hall Farm and had failed to ensure that the project was not carried on in such a way as to expose Shaun Riley and others who were not in the company’s employment, to risks to their safety. As far as the third appellant was concerned, he was a director of the second appellants and the offence that it committed was committed with his consent or connivance or was attributable to neglect on his part. 5. The appellants’ defence was that, whilst accepting that, in particular in relation to the use of the dumper truck, there had been no risk assessments, no training and that no safety helmets had been provided, they had nonetheless done everything which was reasonably practicable to ensure the safety of Shaun Riley and the other workers. There were no appreciable or significant dangers in the project, particularly in relation to the driving of dumper trucks. The dumper truck was itself a perfectly simple piece of equipment which Shaun Riley appeared to be perfectly competent to drive. The first appellant said that in any event its only function was to hire men to carry out the work in which they would be subject to the control of the principal contractor. As far as the second appellant was concerned, it denied that it was the principal contractor or carrying out the undertaking. It said that the contractor carrying out the undertaking was Ruttle Plant Hire Ltd, a company which was no longer trading. The third appellant denied that he had assumed any responsibility for what was taking place on site. He therefore did not connive at or consent to anything which was capable of amounting to a breach of his companies’ obligations under the Act , nor was he guilty of any neglect to which any such breach could be attributed. 6. The relevant provisions of the Act are as follows: “ Section 2 : General duties of employers to their employees. (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. (2) Without prejudice to the generality of an employer’s duty under the preceding sub-section, the matters to which that duty extends include in particular – a. the provision and maintenance of plant and systems of work that are so far as is reasonably practicable and safe without risk to health; b. arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; c. the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees; d. So far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; e. the provision and maintenance of a working environment for his employees that is, so far as is reasonable practicable, safe without risks to health and safety, and adequate as regards facilities and arrangements for their welfare at work. ……. Section 3 : General duties of employers and self employed to persons other than their employees. (1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risk to their health or safety, ….. Section 33: Offences: (1) It is an offence for a person – (a) to fail to discharge a duty to which he is subject by virtue of sections 2 to 7; …… Section 37: Offences by bodies corporate. 1. Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. ….. Section 40 : Onus of proving limits of what is practicable etc. In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement or that there was no better practicable means than was in fact used to satisfy the duty or requirement.” 7. These appeals raise an important question as to the effect of the burden placed on the defence under section 40 on what the prosecution has to prove in order to establish the prima facie breach of duty triggering the need for the defence to establish that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty. That will require consideration in this case of the way in which the prosecution presented its case and the way in which the judge summed it up to the jury. 8. Before turning to this issue, we should dispose of two discrete issues which ultimately turn on the particular facts of this case. Also, we should mention for the sake of completeness that the appellants made an application at the commencement of the trial for it to be stayed as an abuse of process. The judge’s ruling dismissing this application was the subject of a ground of appeal for which leave was refused. It was indicated at one time that the appellants wished to renew the application for leave in respect of this ground. But, ultimately, the matter was not pressed before us. 9. The first discrete issue arises out of the judge’s rejection of a submission at the end of the prosecution case, that the second appellant had no case to answer. The judge rejected this submission on the basis that there was material before the jury from documents which were prepared by the Ruttle Group itself stating that the second appellant was the principal contractor. The submission of Mr Lissack, QC is that, firstly, the judge failed to recognise that the fact that the second appellant was the principal contractor, did not, of itself, answer the question as to whether or not it was carrying on the undertaking which resulted in the alleged breach of duty for the purposes of section 3 of the Act . And it is submitted that, in any event, the evidence before the jury was equivocal. Although there were documents in which the second appellant had been described as the principal contractor, those had been corrected in a later document. Further, the evidence of the prosecution witnesses as to who was carrying out the work was, at the least, inconsistent. 10. As to the latter argument, it seems to us that the judge was fully entitled to take the view that there was material upon which the jury could conclude that the second appellant was the principal contractor. As we have already noted, the project at the farm had not been notified as it should have been to the Health and Safety Executive (the use) on Form 10 under the Construction Design and Management Regulations 1994 . After the accident the HSE Inspector, Mr Connor informed a Mr Carroll, who described himself as the Group Development Officer for the Ruttle Group, of this failure. On the 14 th January 2003 the relevant form, F10 “Notification of Project” was sent to the HSE by fax. This identified the second appellant as the principal contractor. Subsequently, Mr Carroll at an interview, gave Mr Connor a document entitled “Construction Phase Health and Safety Plan” which stated that Ruttle Properties had appointed the second appellant as the principal contractor for the work to the Farm. Subsequently, a further F10 was submitted to the HSE which appeared to retract the assertion that the principal contractor was the second appellant; and it is also true that there was indeed equivocation in the oral evidence at the end of the prosecution case, as to who was the principal contractor. But it seems to us that the two documents presented by Mr Carroll were powerful evidence to support the prosecution’s assertion that the second appellant was the principal contractor. 11. As to whether that was sufficient to establish a prima facie case that the second appellant “conducted” the relevant undertaking, it is significant that there was, so far as we can discern, no submission based on the proposition that for the prosecution to establish that the second appellant was the principal contractor was, in itself, insufficient to establish a prima facie case. And when, after the jury had retired, a question was asked by one of its members which, in effect, raised this issue, all parties accepted that the jury should be directed that if it was satisfied that the second appellant was the principal contractor, that would impose on it the relevant duty under section 3 of the Act . In those circumstances, it seems to us that the judge was entitled to take the view, as he did at the end of the prosecution case, that if there was evidence that the second appellant was the principal contractor, that was sufficient in this case to establish a prima facie case for the purposes of section 3 . 12. The second discrete question arises in relation to the third appellant. The charge in respect of which he was convicted was worded as follows: “You, George Henry Ruttle, being a director of a body corporate, namely Ruttle Contracting Ltd, did on or before the 10 th day of January 2003 through your neglect, connivance or consent, cause the said body corporate to commit an offence under section 3(1) of the Health and Safety at Work etc Act 1974 in failing to ensure, in so far as was reasonably practicable, that persons not in its employment including a Shaun Riley were not exposed to risks to their health and safety in relation to the driving or use of dumper trucks at Heskin Hall Farm…..” 13. It is said that the judge was fundamentally wrong in two separate respects in his directions to the jury. First, in directing the jury as to “neglect, connivance or consent”, he at no stage helped the jury as to how those words could be relevant to the facts of the case, and failed to direct the jury that they had to be unanimous as to which of them was the basis upon which they could convict. 14. As so often is the case it is necessary to evaluate this submission in the context of the issues as they were presented to the jury. The prosecution case was that there was clear evidence that this appellant was directly involved in the works, giving specific instructions as to how they were to be performed. But perhaps and of most significance, was a signed statement that he himself made in December 2004 in which he said: “My involvement with the Heskin Hall Farm project was considerable. It was what I would call an in-house project. I ran the job and made most of the decisions.” 15. There was no submission that he had no case to answer. This appellant gave no evidence. As the prosecution put it to the jury, the only sensible inference was that if it was established that the company had committed an offence, he willingly allowed it to do so or knowingly turned a blind eye to it. This is not the same sort of situation as that envisaged in the case of R –v- Brown [1984] 79 Cr App R 115 where a jury would have to be unanimous as to their findings of fact as to the basis of the prosecution’s case. Although the judge did not elaborate in his summing-up on the meanings of the three relevant words, consent, connivance and neglect, we cannot believe that the jury were in any doubt about what they meant in the context of this case. Given an adverse finding on the relevant issues of fact, the ingredients of the offence would necessarily have been proved. 16. The second respect in which it is said that the judge erred in the third appellant’s case in his direction to the jury was that he gave to the jury a direction that if they were satisfied that he had caused the second appellant to commit the offence through his neglect, connivance or consent, they should then go on to consider whether he had proved that it was not reasonably practicable to do more than he did. In other words he imported section 40 of the Act into the consideration of the charge under section 37. This was clearly wrong: see R –v- Davies [2003] ICR 586 . But it cannot affect the safety of the conviction. The judge directed the jury, albeit wrongly, to consider the reverse burden issue, but only after they had been satisfied that the elements of the offence under section 3 had been proved against the second appellant and that it had not discharged its burden under section 40 , and that he had caused that breach by his connivance, consent and neglect. Once the jury had reached that conclusion, the third appellant’s guilt had been established. The further direction was pure surplussage, and if anything favourable to the third appellant. 17. We turn therefore to the most substantial issue in this appeal. This relates to the way in which the prosecution case against the second appellants was left to the jury. The jury was given a written “Route to Verdict” in respect of each count. For present purposes it is only necessary to set out the terms of the “Route to Verdict” in relation to count 1, which provides a sufficient basis for understanding the nature of the argument between the appellants and the respondent before us. The document is in the following terms: “The questions for you to consider are: Has the prosecution proved the following matters so that you are sure of them? Was Chargot Ltd (T/A Contract Service) the employer? 1. Was there a risk to the health, safety and welfare of employees arising from the driving or use of dumper trucks at the site? 2. If you are not satisfied so as to be sure of either of the above matters then the prosecution would have failed to have proved an essential ingredient in the offence and you should find the defendant Not Guilty. 3. If you are satisfied so as to be sure that the answer to each of the above questions is “Yes”, then go on to consider the question below. Has the defence proved that it is more likely than not that it was not reasonably practicable for Chargot Ltd (T/A Contract Services) to do more than it did in order to ensure that employees were not exposed to a risk to the health, safety and welfare of employees arsing from the driving or use of dumper trucks at this site? If your answer to this question is “Yes” your verdict should be “Not Guilty”. If your answer to this question is “No” and you are sure of the other ingredients (i.e. Questions 1 and 2) your verdict should be Guilty.” 18. The Route to Verdict in relation to Count 2 was in similar terms, appropriately changed to reflect the difference between sections 2 and 3 of the Act . Mr Lissack on behalf of the appellants submits that this direction (which was essentially repeated orally by the judge in his summing up) is fundamentally flawed. He refers us to paragraph 26 of Davies (supra) in which the court said: “Before any question of reverse onus arises the prosecution must prove that the defendant owes the duty (in the case of section 3 to the person affected by the conduct of his undertaking) and that the safety standard (in the case of section 3 exposure to risk to health or safety) has been breached. Proof of these matters is not a formality. There may be real issues about whether the defendant owes the relevant duty or whether in fact the safety standard has been breached, for example where the cause of an accident is unknown or debatable.” 19. He submits that inherent in this exercise is the requirement for the prosecution to identify the scope of the duty that it alleges has been breached by reference to specific criticisms of the way in which the work has been conducted. That requires, he submits, particulars of the deficiencies alleged, which would in turn require the jury to be directed as to the need for unanimity as to at least one basis upon which the prosecution rests its case. He referred us to R –v- Beckingham [2006] EWCA Crim 773 . In that case, which related to an outbreak of Legionnaires Disease in Barrow in Furness, the appellant was charged under section 7 of the Act , with failing 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 the disease. The Crown served, on request, ten particulars to support the allegations. This court quashed the conviction on the basis that the judge had not specifically directed the jury that it must be unanimous on one or more of those particulars before it could convict. 20. It is submitted that the prosecution, in the present case, gave particulars, although not formally. In opening the case to the jury, it referred to the terms of section 2(2) in relation to the requirements as to the provision and maintenance of plant and systems of work which were safe, and the provision of such information, instruction, training and supervision as was necessary to ensure the health and safety of employees. It also referred to regulations requiring an employer to conduct suitable and sufficient assessments of the risks of health and safety to ensure that the employees who used work equipment had adequate training and ensuring that those using work equipment had adequate health and safety information and, where appropriate, written instructions. The prosecution case was that the jury could be satisfied that the appellants had not put in place any training whatsoever of employees in the safe use of the trucks, the identification of hazards, the choice of safe routes and the need to wear safety belts. There was no risk assessment. 21. All these, it is submitted on behalf of the appellants, could have been set out in particulars which would have enabled the jury to identify the breaches of duty alleged by the prosecution and to evaluate on the one hand whether they had been established, and on the other the extent to which the appellants had been able to show that they had taken all reasonable practicable steps to deal with any risks which might eventuate from such breaches. It is acknowledged that no request was made at trial for the prosecution to provide such particulars, and that the “Route to Verdict” was accepted by all trial counsel as an appropriate way to direct the jury in relation to these counts. Nonetheless, it is submitted, that cannot save these convictions if the verdicts are unsafe because the jury were simply not properly directed. 22. Mr Horlock, QC on behalf of the Crown, argues that these submissions misunderstand the structure of the relevant part of the Act . Sections 2 and 3 impose a duty to ensure a state of affairs, so far as is reasonably practicable. Section 33 makes a breach of the duty an offence; but section 40 imposes the obligation on the defence to establish that they had done everything reasonably necessary to ensure that state of affairs. The policy behind the Act is clearly to impose a positive burden on employers rather than simply disciplining them for breaches of specific obligations. That being so, the prosecution is entitled simply to point to a state of affairs as amounting to a breach of the statutory duty. That state of affairs in this case was the risk of injury arising out of the use of dumper trucks. That risk cannot be gainsaid. It eventuated in the form of the accident which killed Shaun Riley. Beckingham (supra) is of no relevance. It was a prosecution under section 7 of the Act which is not a section which brings into play the reverse burden under section 40 of the Act . A breach of the duty there was a breach of a duty “to take reasonable care”, which clearly imposed a positive obligation on the prosecution to particularise the risks in respect of which it was said that the defendant had failed to exercise reasonable care. 23. In our judgment, Mr Horlock’s submissions are correct. The most important analysis of the effect of the sections with which we are concerned is contained in the judgement of this court in R –v- Board of Trustees of the Science Museum [1993] 1WLR 1171 , where at page 1177D the court said as follows: “The critical question of interpretation is as follows. Was it enough for the prosecution to prove that there was a risk that L.P. (the bacterium causing Legionaires Disease) might emerge or do the prosecution have to go further and show that LP did in fact emerge into the atmosphere and be available to be inhaled? Mr Carlisle, leading counsel for the prosecution, illustrated the problem with a simple example. Imagine, he said, a loose object on a roof near a pavement. In case A the loose object is in a position in which it might fall off and hit a pedestrian. In that case there is a clear risk. In Case B, the object in fact falls and exposes a pedestrian to actual damage. In case C, the object falls and causes an actual injury to a pedestrian. The prosecution submits that exposure to risk in case A constitutes a prima facie case under section 3(1) . The defence submits that section 3(1) only covers cases B and C. The starting point must be the ordinary meaning of the language of section 3(1) . In our judgment the interpretation of the prosecution fits in best with the language of section 3(1) . In the context the word “risks” contains the idea of a possibility of danger. Indeed, a degree of verbal manipulation is needed to introduce the idea of actual danger which the defendants put forward. The ordinary meaning of the word “risks” therefore supports the prosecution’s interpretation there is nothing in the language of section 3 or indeed in the context of the Act , which supports a narrowing down of the ordinary meaning. On the contrary, the preventive aim of sections 3 , 20 , 21 and 22 reinforces the construction put forward by the prosecution and adopted by the judge. The adoption of the restrictive interpretation argued before us by the defence would make enforcement of section 3(1) , and to some extent also sections 21 , and 22 more difficult and would in our judgment result in a substantial emasculation of the central part of the Act of 1974. The interpretation which renders those statutory provisions effective in their role of protecting public health and safety is to be preferred. We have not lost sight of the defence submission that we ought to concentrate on the word “exposed” rather than “risks” in section 3(1) . If the word “risk” has the meaning which we consider it has, the point disappears. In that event exposure to a possibility of a danger is sufficient. The word “exposed” simply makes it clear that the section is concerned with persons potentially affected by the risk.” 24. Although concerned with a different factual scenario this focuses attention on the fact that it is the risk to the health and safety of the employees or the public which is the trigger for potential liability in cases under sections 2 and 3 of the Act . Once risk can be identified, that is sufficient to impose the onus on the employer or undertaker. This was recognised by the Court in Davies (supra), in paragraph 25: “The reversal of the burden of proof takes into account the fact that duty holders are persons who have chosen to engage in work or commercial activity (probably for gain) and are in charge of it. They are not therefore unengaged or disinterested members of the public and in choosing to operate in a regulated sphere of activity they must be taken to have accepted the regulatory controls that go with it. This regulatory regime imposes a continuing duty to ensure a state of affairs, a safety standard. Where the enforcing authority can show that this has not been achieved it is not “unjustifiable” or unfair “to ask” the duty holder who “has” either created or is in control of the risk to show that it was not reasonably practicable for him to have done more than he did to prevent or avoid it.” 25. In a later passage in paragraph 29, in the context of whether or not the burden was a legal or an evidential one, the court said: “If all the defendant had to do was to raise the defence in order to require the prosecution to disprove it, the focus of the statutory scheme would be changed. The trial would become focused on what it was the enforcing authority was saying should have been done rather than on what the defendant had done or ought to have done which is what Parliament intended.” 26. In the present case, the prosecution, in our view, clearly established the relevant risk, namely of injury caused by driving the dumper truck. That it was a real risk, as opposed to a purely hypothetical one, was established by the fact that there was the accident. That was in our view sufficient to justify the requirement that the first and second appellants should have the burden of proving that they had done all that was reasonably practicable to protect against that risk. It might have been different if the state of affairs which was alleged to amount to a breach of duty by the employer or undertaker could not be shown to have any causal link to the employment or the undertaking in question. That appears to us to be what this court had in mind in paragraph 26 of Davies . That is not this case. 27. Finally, in relation to the directions and the “Route to the Verdict” Mr Lissack takes issue with the way in which the judge expressed the standard of proof imposed on the appellants. He submits that the use of the phrase “more likely than not” proposes a standard higher than the balance of probabilities. We do not consider that the jury could possibly have been misled into imposing too high a burden by the use of those words. 28. These appeals against conviction are dismissed. 29. We return then to the renewed application for leave to appeal against sentence. There is no doubt that these were very substantial fines. But the businesses in question were clearly very substantial businesses. For example, the turnover of Chargot Ltd was in excess of £4,000,000 per annum. This gives an indication of the substantial numbers employed by the Ruttle Group. Mr Lissack, however, submits that nonetheless the levels of the fines were manifestly excessive and could only be explained by the judge taking an unjustified and extreme view of the behaviour of the appellants. This is exemplified, he says, by the following in his sentencing remarks. 30. In commenting on the evidence of the appellants’ expert Dr Searle, he said: “Dr Searle left the witness box thoroughly discredited. His presentation fitted with a pattern that emerged throughout this case from the very first days of the investigation of putting up smoke screens and doing everything possible to evade responsibility to place the blame on others. The degree of personal criticism of individuals which was not merely ill advised and unattractive but, in my judgment a serious aggravating feature and that is particularly so in respect of the personal liability in the case of Mr Ruttle who is, as the prosecution accurately submitted the personification of the Group.” 31. Commenting on the defence of the second appellant, which was mainly to the effect that another company in the group, Ruttle Plant Hire Ltd, was the company undertaking the work, the judge concluded that the appellants generally had sought to muddy the waters, and that the third appellant himself had been a party to this. He expressed strong views about the attempt to stay the proceedings as an abuse of process. He described the third appellant as “a greedy and ruthless business man with no moral scruples”. 32. These were undoubtedly strong words. But they need to be read in the context of a prosecution which had its origin in a tragic accident in which a young father of two had been killed. The evidence established that, in effect, no thought had been given to health and safety matters. This would appear to have been because the work in question was what was described as “in-house”, in other words not part of the general business of the companies, and done on a relatively ad hoc basis when employees were available to do it. The judge took into account their previous good safety record, but clearly considered, and was fully entitled to do so, that whilst this is not a case of either the companies or the third appellant deliberately taking risks, there was such a serious breach of the requirements of the Act that only very substantial fines, within the means of the appellants, were necessary. We agree. And it is not suggested that the fines were in anyway beyond the means of these appellants. Accordingly we see no basis upon which the sentences could be said to be manifestly excessive. Mr Justice Gibbs: I agree Mr Justice Lloyd Jones: I also agree. Post Judgment Discussion 1. THE VICE PRESIDENT: There is a consequential application before the court for costs, as I understand it, on behalf of the HSE. 2. MR WOODALL: That is correct, my Lord. There is a schedule. I apologise it is in handwritten form. Those figures have been agreed this morning between the parties. 3. THE VICE PRESIDENT: That has been agreed? 4. MR COMPTON: Yes, my Lord. 5. THE VICE PRESIDENT: Thank you very much. Then all I need say is that the appeals are dismissed and that the appellants is the idea that it should be a joint and several liability? 6. MR COMPTON: Yes. 7. THE VICE PRESIDENT: should pay the respondent's costs assessed in the sum of £38,740.92. 8. MR WOODALL: By my calculations that is divided by three, so it is an equal split between the three defendants, each defendant is liable for £12,913.64. 9. THE VICE PRESIDENT: For the moment, the way I put it was on the basis that you were going to ask for that to be paid jointly and the responsibility to be joint and several. It might be sensible to do it that way. 10. MR WOODALL: So be it. 11. MR COMPTON: My Lord, that would be the preferable way, we would submit. 12. THE VICE PRESIDENT: You may well find you want a particular company, for example, to meet the bill. So it will be joint and several liability. 13. There is then an application for us to certify three questions as raising issues of public importance. There is a document in which those questions are set out. As far as you are concerned, Mr Woodall on behalf of the respondents, have you any submissions to make about it? 14. PROSECUTION: Can I firstly ensure that your Lordship has the draft questions which is headed "Draft question V2"? 15. THE VICE PRESIDENT: Yes. 16. MR WOODALL: The amendments that were made that are in that document remove any concerns of the Health and Safety Executive about the drafting of those documents. It is a matter entirely for the court as to whether this is a point of law of general public importance. 17. THE VICE PRESIDENT: Yes. Can I say that I have considered this, together with both Gibbs and Lloyd Jones JJ, and we take the view that since essentially we were following a Court of Appeal decision, not a House of Lords' decision, albeit presided over by a very distinguished judge, there Lordships should be given the opportunity to look at it and see whether or not they consider it is a matter which they would wish to hear. It follows that we consider that the three questions raised issues of general public importance, but the questions would be better phrased if in each case the question should finish with the word "duty" and should therefore omit the "when" and the subclauses. Those are really matters of argument rather than substance in relation to the question. 18. MR COMPTON: Indeed. 19. THE VICE PRESIDENT: So we will put those together with the order. I should have said that as far as the decision is concerned we dismiss the appeal against conviction and we granted leave to appeal against sentence but dismissed the appeal. I had forgotten that you had not got leave. 20. For the purposes of any application for leave to appeal to the House of Lords, what representation order do you ask for Mr Compton? 21. MR COMPTON: My Lord those instructing are privately paid in any event. I do not know if I 22. THE VICE PRESIDENT: You are not asking for a representation order then? 23. MR COMPTON: My Lord, no. 24. MR WOODALL: For clarity your Lordship certifies the question but does not grant leave. 25. LORD JUSTICE LATHAM: Yes, I have refused leave. Their Lordships can then consider whether they think it is appropriate to hear it.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3032/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3032

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[2012] EWCA Crim 995

EWCA_Crim_995

crown_court

Case No: 201104903 A7, 201104907 A7, 201104905 A7 Neutral Citation Number: [2012] EWCA Crim 995 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING His Honour Judge McIntyre T20100690 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/05/2012 Before : LORD JUSTICE HUGHES MR JUSTICE COOKE and MR JUSTICE BURNETT - - - - - - - - - - - - - - - - - - - - - Between : Ciaran Doyle, Ryan Wise and Darren Wise Appellants - and - The Queen Respondent - - - - - - - -

Case No: 201104903 A7, 201104907 A7, 201104905 A7 Neutral Citation Number: [2012] EWCA Crim 995 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING His Honour Judge McIntyre T20100690 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/05/2012 Before : LORD JUSTICE HUGHES MR JUSTICE COOKE and MR JUSTICE BURNETT - - - - - - - - - - - - - - - - - - - - - Between : Ciaran Doyle, Ryan Wise and Darren Wise Appellants - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Henry Grunwald OBE QC and Jason Cross (instructed by First Defence Solicitors ) for the Appellants John McGuinness QC and Jonathan Sank (instructed by Crown Prosecution Service ) for the Respondent Hearing dates: Wednesday 9th May 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes: 1. These appeals against sentence are confined to Football Banning Orders made by the Crown Court. Not for the first time, the complexity of legislation enacted in pursuit of an entirely necessary objective has caused no little trouble. In this case there was confusion over both the test for making the order and over what the order ought to contain. 2. The Football Banning Order (“FBO”) was introduced by the Public Order Act 1986 . The statutory provisions now reside in the Football Supporters Act 1989, which has been amended a number of times since it was first passed. 3. There can be no doubt that strong provisions of the kind enacted were and are necessary to achieve some control of the phenomenon of football hooliganism and violence. The scourge of football violence has blighted the sport for years. It is well known that it has very seriously affected this country's reputation abroad and has greatly damaged the willingness of other countries to compete with British teams. It is also obvious that it carries with it the real likelihood that innocent people are either prevented from attending football matches, especially with their children, as they ought to be able to do, or are at risk of suffering disorder, harassment and serious violence if they do. Moreover such disorder and violence can do real injury to people who have nothing to do with football but happen to be present where the offences are committed. It is a sad but well established feature of the phenomenon that whilst sometimes the offenders are people with a history of violent behaviour unrelated to football, many others are often otherwise hard working and unconvicted persons, who behave in the context of football matches in a way that they would not otherwise. One clear problem is the way in which violent behaviour is fuelled by numbers, and by a sense of tribal identity, which can lead people to think that violence and threats are acceptable; often actions of a crowd are greater in their effect than the sum of the individual actions of its members. In a case where a FBO is justified, it brings extensive controls over the defendant, which also support the considerable intelligence and co-ordination work undertaken by UK police forces to combat football violence. What the order does 4. The consequences of a FBO are not inconsiderable. They must be explained to the defendant in ordinary language at the time an order is made: s 14E(1). (1) It lasts for a minimum of 3 years (3 to 5 years) if attached to a non-custodial sentence, and for a minimum of 6 yrs (6 to 10 years) if attached to an immediate sentence of imprisonment: s 14F (2) It prohibits the defendant from attending any regulated football match anywhere in the UK – s 14(4)(a). That means all league matches at Blue Square North and South level or above, plus cup matches except for preliminary rounds. Note that it is not possible to make an order limited to particular matches or particular teams. (3) It requires him to report within 5 days to the police station, and to provide the police with all the names he uses, any address where he lives for more than four weeks and his passport details: s14E. (4) It then enables the enforcing authority (currently the UK Football Banning Order Authority) at its entire discretion, to direct him via the police as to how he must comply with the order. (5) It also enables the authority, again at its discretion, to order him to report to a police station when told to do so, and to surrender his passport, in order to prevent him from travelling abroad to a regulated football match outside the UK: s 14(4)(b) & 19. (6) During what is termed the control period for any foreign football match or tournament, the authority may prohibit the defendant from travelling out of the country at all: s19. This applies to all matches or tournaments in which a British team (national or club) has an interest, whether it is playing in any particular match or not. The control period starts 5 days before the match or tournament and ends only when the whole tournament ends. (7) If he wishes to avoid any of these prohibitions, the defendant has to persuade the authority to grant an exemption: s 20. That includes the case where he needs to travel abroad for a reason completely unconnected with football, such as work or a family wedding, to a country many miles away from the place where the match is happening; in this case also he must get special permission to go. There is a right of appeal to the magistrates if he is refused. These components of a FBO are not optional but compulsory. Failure to comply with an order is a summary offence punishable with up to six months imprisonment. Additional requirements 5. The Act permits additional requirements to be added by the court: s 14G. These can be tailor made, but they must be requirements “in relation to any regulated football matches.” There were some in this case, as we shall show. These additional requirements are the only part of a FBO which is in the control of the court. Given the extent of the controls provided by the standard terms of a FBO, careful consideration ought to be given to whether any additional requirements sought are indeed required. The FBO in the Crown Court 6. FBOs can be made by a Magistrates Court on the application of the police. We are here concerned, however, with orders made ancillary to conviction. The rules are contained in s14A and Schedule 1. These parts of the Act are in Archbold (at 5-1087 of the current 2012 edition). There are 3 vital things to grasp: a) There are two main conditions for the making of an order. b) If those conditions are met, the making of an order is mandatory. c) The order is not designed as a punishment, although it will have that effect. It is designed as a preventative measure. The conditions 7. The two conditions are these: i) There must be a conviction for a relevant offence: s 14A(1). The offences which are relevant are listed in Schedule 1. For the most part they become relevant not simply when a particular offence is committed, such as, to take an example at random, affray, but only when it is committed in the circumstances stipulated in Schedule 1. If the offence falls within Schedule 1, then the second condition must also be met. ii) The Judge must be satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches: s 14A(2) Moreover by s 14A(3) if the court is not so satisfied, it must in open court state that fact and give its reasons. Once both conditions are satisfied then a FBO must be made. 8. The second condition plus the prohibitions which come with a FBO together show that the principal purpose of the order is not punishment. Of course to prevent a football follower from attending any match for 3 or 6 years will be an appreciable punishment for him, but the object is preventative. If the second condition is not made out, but the Judge wants to impose an order which will, by way of punishment, keep the defendant away from a football match for a while, he has power to do so in a number of ways, for example by making it a requirement of a community order or suspended sentence that he does not attend matches, either generally or limited to a particular team or teams. If on the other hand a FBO is mandatory, its prohibitions must be the wholesale ones which we have explained above. 9. The need for the second condition also shows that it is not the law that a FBO will inevitably follow every conviction of a relevant offence: see Boggild [2011] EWCA Crim 1928 . Relevant offences 10. These are listed in Schedule 1. i) There are some offences listed in para (a) and (p) which are ipso facto relevant. Those are, in essence, offences which of their nature are concerned with football. ii) Offences listed under paragraph (b) must have been committed whilst entering or trying to enter the ground. iii) Offences listed under paragraphs (c) to (f) must have been committed during the period relevant to a football match (which means 24 hours either side of the match – see paragraph 4(2)(b)) and when D was at, or entering or leaving, premises, although it would seem that the premises can be any premises and are not confined to football grounds; they might well, for example, be a public house. iv) Offences listed under paragraphs (g) to (o) and (q) will be relevant if they are “related to football matches”; this calls for a judgment of the court declaring this to be so. The decision is called in the Act a “declaration of relevance”; see s 23. “Related to football matches” 11. The judgment which is required in relation to offences listed under (g) to (o) & (q) is therefore not an assessment of the legal character of the offence. It is a determination whether on the particular facts of the offence as it was committed on the occasion in question, the offence was “related to football matches”. 12. Although the test is expressed in terms of “matches” in the plural, it would appear that it would suffice if the behaviour was, on the particular facts, related to a single match. But it is clear that what the Act is targeting is those offences which have a connection with football, generally with the defendant’s following of the game. 13. Paragraphs (g) to (o), although not (q), are all concerned with offences committed when the defendant was on a journey to or from a football match at the stipulated level (essentially Blue Square North or South or above). It is obvious that football disorder and violence can often occur on such journeys. Equally, because the Act requires the judgment of the court whether the particular offence was “related to football matches” it is clear that the mere fact that defendant was on a journey to or from a match is not enough. There must be another connection. The offence must be ‘related to football matches’. 14. The Act offers no definition of when this condition will be met. It is (no doubt deliberately) left to the judgment of the judge on the particular facts before him. It would be wrong to attempt to define when the condition will be met. The facts which may occur will vary too much. It is not difficult to say that a pitched battle between opposing fans as they walk away from the ground is ‘related’, or that a defendant who, when on his own twenty miles away from the ground on his journey home meets a rival for a woman’s affections and hits him, is not committing an offence related to football matches. But in between there will be infinite graduations of conduct, and they must be left to the judge in each case. In one or two reported cases the court has taken into account whether what was described as the “spark” for an offence of violence was a football factor, such a dispute with opposing fans, but this is only an example of the kind of matter which may be relevant and must not be taken as a substitute test. If a football-related ‘spark’ is present that will no doubt be likely to lead to the conclusion that the offence was related to football matches. But it is all too notorious that the ‘spark’ for offences of violence may sometimes be illusory, or minimal, or simply irrelevant. If the offence be one committed by a group of football fans clearly acting as such, in a group whose identity is clearly football-oriented, their violence may well justify the expression “related to football matches” even if the particular casus belli is that exception is taken to another person for no particular reason. We offer only the observation that it will not by itself be enough, to make an offence “related to football matches” that it would not have occurred “but for” the fact that D was en route to or from a match. If that by itself were enough, then every offence of the listed kind which was committed on a journey to or from a match would automatically qualify and the additional test of relation to football matches would be unnecessary and meaningless. The condition in s 14A(2) 15. Whether this condition is met will in some cases be the key question. No doubt the more the offence is linked to football grievances or the group “culture” of a set of fans linked by their support for a team, the more likely it will be that an FBO will help prevent violence or disorder. The more there is a history of football related offending, the greater will be the likelihood that the condition will be met. However, it is clear that it is possible for this condition to be met by the commission of a single offence, of which the defendant has just been convicted. What it is important to remember is that this condition clearly contemplates that there must be a risk of repetition of violence or disorder at a match before it is met. The test of reasonable grounds to believe that a FBO will help prevent violence or disorder at regulated matches does not set a high hurdle, but it is clear that it is not automatically satisfied just because the instant offence was football-related. If that were so, the condition would add nothing and would not be needed. Many football-related offences will give rise to exactly this risk, but not all will. Boggild was an example of one which the judge determined did not. This case 16. These three defendants live in Reading and are supporters of West Ham FC in East London. On 20 February 2010 they had been to a match at West Ham. By the time they got onto the homeward train from Paddington to Reading they were rowdy, foul-mouthed and drunk. Their unpleasant behaviour attracted the attention of another passenger, Mr Rawlins, who had the courage after a beer can was kicked into the carriage to speak up and to ask them to stop. He was not simply taking upon himself the responsibility of trying to stop loutish behaviour, although it would have been praiseworthy if he had. He was with his wife and children and did not want them affronted or upset. The defendants took exception, came at him aggressively and seized him around the neck. The assault on him and resulting struggle was frightening to other passengers. Some tried to protect Mr Rawlins. Eventually somebody pulled the communication cord. Everyone’s journey was made unpleasant and was disrupted by the behaviour of the defendants. They continued to threaten Mr R, chasing him as he left the train and shouting that they were going to “fucking get him”. He reached the guard’s cab and although he banged on the door for help they continued to punch him. Rather than admit what they had done, the defendants said that he had attacked them and they pursued that dishonest defence throughout the trial until the jury disbelieved them and convicted them of affray. 17. Despite their previous good characters, and indeed decent jobs and positive good things said about them, the defendants clearly merited immediate sentences of imprisonment, and these the judge correctly imposed – 9 months for Darren Wise and 6 months for the other two, reflecting their slightly different parts in the offence and Darren Wise’s previous convictions. 18. The judge said this in sentencing: “Watching the football match was, in my view, a direct cause of your behaving in the way you did. It is the combination of football match, drinking too much before and/or after it which led to this violent behaviour, and so I do make in respect of you all a football banning order for six years, which is the minimum period of time.” He thus partly addressed the first condition – viz whether the offence was “related to football matches”, although not in terms. He did not address the second. 19. The draft orders presented to him were in standard form and also contained paragraphs in the space where draft additional requirements under s 14G may appear. The principal prohibition was part of the standard part of the order: “Not enter any premises for the purpose of attending any football matches in England and Wales that are regulated for the purposes of the Football Spectators Act 1989 .” The further paragraphs in the draft were to this effect: a) a bar on going within 2 Km of any stadium at which West Ham were playing, whether at home or away, during the period from 3 hours before the match to 3 hours after it finished; b) a similar provision relating to any stadium at which an England team was playing; c) a bar on using any train, anywhere in the country, or any part of the underground system, for 3 hours either side of any match played by West Ham or England (anywhere), unless specifically authorised by the police. 20. Of those, the judge said this: “Why on earth the order does not simply say that you are banned from attending West Ham football matches for six years I don’t know, but insofar as it does say that, I make an order in those terms. I think it does say that in a very sort of verbose fashion in paragraphs 1 and 2, but I don’t see that paragraph 3 adds anything to it at all” 21. It is fairly clear from these remarks and the transcript as a whole that neither of the advocates nor the judge realised that these additional paragraphs were submitted as drafts which could either be incorporated or not according to his judgment. It is plain that he thought, no doubt on a rapid reading of the draft at short notice, that they constituted the operative parts of the order. Hence, it would seem, his observation that he did not see why the order was not confined to preventing them going to West Ham for the relevant period of 6 years. That is clearly what he wanted to achieve. 22. For whatever reason, the terms of the order when served were distinctly different. There were two not three additional prohibitions. The railway condition had gone. Those which now appeared were: (a) not to be in any town or city where either West Ham or England are playing for a period running from 4 (not 3) hours before to 4 hours after the match; and (b) not to be within 1 mile of any stadium where either West Ham or England are playing during that same period. It is perhaps technically possible for the second ban to add to the first, but only if the stadium in question is right at the edge of a town or city, and it is difficult to see what the justification for it could ever have been. An order in this form meant, for example, that the defendants would have had to move out of their homes if West Ham came to play at Reading. These conditions had not been canvassed before the judge and it remains a mystery how they came to be contained in the order as served on the defendants. On any view the first was wrongly stated and the inclusion of the second was simply unlawful. 23. When this case first came before this court, there was total uncertainty amongst the advocates on both sides as to what order had been made, and what order served. We are extremely grateful to Mr Grunwald QC and Mr McGuinness QC, with the help of their juniors, for sorting it out, and also to Mr McGuinness for ascertaining the significance of a declaration of relevance under section 23 (see paragraph [10(iv)] above), which, though it did not there arise, eluded all counsel, police officers and judges present in the case of Boggild . But the history only underlines the fact that the statutory process for considering, and if appropriate for making, a FBO, was simply not followed by anyone. We are not surprised that the judge did not instantly appreciate this. It takes a long and careful reading of the Act to discover amongst its much-amended provisions exactly what the process is, and the judge was rightly concerned principally with the decision whether there had to be an immediate sentence of custody or not. He did not have the help which we have had, nor the luxury of concentrating only on the ancillary order. 24. What of the two statutory conditions for the making of any such order ? 25. As to the first condition, that the offence be “related to football matches”, the judge’s statement that watching the football match was a direct cause of the behaviour amounted to a conclusion that but for the match they would not have been where they were, and perhaps not drunk. That may be so, and in some circumstances that might be enough to justify a declaration that the offence was “related to football matches”, for example if the affray were fuelled by the tribal identity of a group of football fans. Such a decision would, however, at the least involve a conscious conclusion that it was the football and its tribal excitement which had led to the unpleasant behaviour. In the present case the judge did not so determine and the evidence showed only that the offence arose out of the fact that the defendants were drunk, rather than that it had any connection to football. 26. As to the second condition, the judge clearly did not address it at all. We cannot know what his conclusion would have been. He knew quite a lot about the defendants and he had seen them extensively during their trial; they had, as he expressly observed, a decent side to them as well as the unpleasant side on display on the Reading train. What his conclusion would have been we do not know and we do not think that we ought to attempt to make it for him, on the facts of this case. Since the first condition was not, as it seems to us, met in this case, the second in any event does not arise. 27. We invited submissions as to any alternative preventive orders which might be available to us in place of the FBOs and which might have achieved the aim which the judge evidently had to keep the defendants away from West Ham matches, probably largely as a suitable additional punishment. We are grateful to both counsel for their helpful researches. If non-custodial sentences had been passed, then conditions could have been attached to either community orders or suspended sentences, and the conditions would then no doubt also have served as effective punishment. This, however, was a clear case which called for immediate imprisonment. Since immediate sentences of imprisonment were imposed, there was no other order available to the judge except perhaps an Anti-Social Behaviour Order, but, as counsel on both sides have pointed out to us, the test for the making of such an order is necessity, significantly higher than the second condition for a FBO. It would be wrong to impose such an order in this case and we do not do so. 28. In those circumstances, as we announced at the end of the hearing, the appeal must be allowed to the extent that the Football Banning Orders are quashed in each case.

2012_05_16-2980.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/995/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/995

54ae99bfb761333c305d130815d24b9d4ca78013025366e0426a8cda14743baa

[2023] EWCA Crim 1516

EWCA_Crim_1516

crown_court

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A perso

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. I N THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/00605/A5, 2023/00648/A5 Neutral Citation Number: [2023] EWCA Crim 1516 Royal Courts of Justice The Strand London WC2A 2LL Thursday 2 nd November 2023 B e f o r e: LORD JUSTICE SINGH MRS JUSTICE McGOWAN DBE MRS JUSTICE HILL DBE ____________________ R E X - v - RICHARD THOMAS WATKINS CHRISTOPHER GERMAN ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _____________________ The Applicant Richard Thomas Watkins was unrepresented Mr D Nolan appeared on behalf of the Applicant Christopher German ____________________ J U D G M E N T ( Approvedl ) ____________________ Thursday 2 nd November 2023 LORD JUSTICE SINGH: I shall ask Mrs Justice Hill to give the judgment of the court. MRS JUSTICE HILL: Introduction 1. These are two renewed applications for leave to appeal against sentence, leave having been refused by the single judge on 10 th July 2023. 2. On 12 th October 2021, in the Crown Court at Preston before Her Honour Judge Lloyd, Richard Watkins pleaded guilty to two counts of conspiracy to possess a firearm with intent to endanger life, contrary to section 1(1) of the Criminal Law Act 1977 (counts 1 and 2 on the indictment); two counts of possessing a prohibited weapon for sale or transfer, contrary to section 5(2A)(c) and Schedule 6 to the Firearms Act 1968 (counts 4 and 5); and two counts of possessing prohibited ammunition for sale or transfer, contrary to the same provisions (counts 6 and 7). 3. On 7 th December 2022, in the same court, following a trial before His Honour Judge Parry and a jury, Christopher German was convicted of one count of conspiracy to possess a firearm with intent to endanger life (count 2) and two counts of conspiracy to possess ammunition with intent to endanger life (counts 4 and 6). 4. On 3 rd February 2023, His Honour Judge Parry sentenced Mr Watkins to an extended sentence of 22 years pursuant to section 279 of the Sentencing Act 2020, comprising a custodial term of 19 years and an extended licence period of three years, on count 1. The judge sentenced him to 11 years four months' imprisonment on count 2, and to 12 years' imprisonment on each of counts 4 to 7, all of which sentences were to run concurrently with that on count 1. 5. On the same day the judge sentenced Mr German to an extended sentence of 16 years, comprising a custodial term of 13 years and an extended licence period of three years, on count 1, with the same sentence imposed on counts 4 and 6, to run concurrently. 6. Mr Watkins has not been represented by counsel before us but we have considered the grounds drafted by his previous counsel, Simon Perkins, and the other material relevant to the application taken from the Digital Case System. 7. Mr German's grounds of appeal have been amplified by oral submissions this morning by Mr Nolan of counsel. We have been greatly assisted by his submissions and by the grounds drafted by previous counsel, Thomas Lord. The Facts 8. The applicants, together with Mark Watkins (Mr Watkins’ father), Ryan Poole and John Lewis were involved in a conspiracy to possess a firearm (a Howa 308 rifle) with intent to endanger life. The applicants, Ryan Poole and John Lewis were also involved in a conspiracy to possess compatible ammunition for that rife (31 Prvi Partizan bulleted cartridges and eight Norma 308 Winchester bulleted cartridges) with intent to endanger life. Mr Watkins additionally fell to be sentenced for two offences of possessing a prohibited weapon (a Sig Sauer 9 mm handgun and a revolver) for sale or transfer, and two offences of possessing prohibited ammunition (11 .44 Smith & Wesson bulleted cartridges, six of which were loaded in the revolver, and 14 MKE 9 mm parabellum bulleted cartridges for use in the Sig handgun) for sale or transfer. A further co-defendant, Lois Carter, was due to be sentenced for an offence of participating in the criminal activities of an organised crime group at a later date. 9. At approximately 3.40 pm on 14 th July 2021 armed police executed an enforced stop of a Ford Focus motor vehicle. Mr Lewis, Mr Poole, Ms Carter and her infant son were inside. The car had travelled from Manchester to Preston earlier that day and was on its way back. Police had tracked the vehicle from Manchester to the address of Mr Watkins and his father on the outskirts of Preston. The purpose of the trip was to collect a firearm and ammunition from Mr Watkins. From the boot of the vehicle officers recovered the Howa rifle, with a magnified telescopic sight and attached sound moderator, along with 39 rounds of 308 calibre ammunition. 10. The conspiracy began on 5 th July 2021. The prosecution case was that Mr Watkins was the supplier, Mr German the arranger, and Mr Poole the recipient. From that date there was extensive telephone communications between the applicants and Mr Poole. The applicants were good friends. Mr Poole was employed by Mr German. All three had met while serving custodial sentences some years earlier. 11. On 6 th July 2021 the applicants met at Rivington Services on the M61 to discuss the transfer of the firearm and ammunition to Mr Poole. The men continued to communicate over the following days. Mr Lewis agreed to act as Mr Poole's driver and Miss Carter and her infant accompanied them to give the journey the appearance of respectability. 12. By 10.30 am on 14 th July 2021 both Mr German and Mr Poole had attempted to contact Mr Watkins. At midday there was a long telephone conversation between the applicants, followed by Mr German calling Mr Poole. Both the Howa rifle and the ammunition were buried in wasteland at the bottom of the home of Mark Watkins, at 24 Merrick Avenue. CCTV footage showed Mr Watkins junior start to dig up the items at around 1.00 pm. However, due to an injury to his leg he then enlisted the help of his father. Together they dug for a further 20 minutes until they retrieved the items. The firearm and ammunition were taken to an outbuilding at the rear of the garden and cleaned, before being collected an hour later. Mr Watkins senior moved his own vehicle from the driveway to allow Mr Lewis to reverse onto it. Mr Poole then entered the garage and collected the weapon and ammunition before the group began to make their way back to Manchester. Mr Poole and Mr German continued to be in telephone contact during the return. 13. After the vehicle was stopped by police there was a flurry of telephone calls between the applicants and Mark Watkins. Mr Watkins left the property and was later arrested on the outskirts of Preston. Mark Watkins drove out to find his son and saw where he had been arrested. Mark Watkins went back to his house and was arrested there soon after. Police searched 24 Merrick Avenue and recovered CCTV footage from all areas of the house which showed the actions of Mr Watkins and his father in the garden and the transaction with the group from Manchester. 14. Police continued to search the area of ground where the Howa rifle was buried. In an area of soil at the rear of a neighbour's garden they found a package containing two handguns, namely a revolver loaded with rounds of viable ammunition and a 9mm Sig Saur pistol with a loaded magazine. There were also 9 mm bullets in the package. These items were reflected in counts 4 to 7 on the indictment relating to Mr Watkins alone. The Relevant Sentencing Council guideline 15. The relevant Sentencing Council guideline was that relating to Firearms – possession with intent to endanger life. This provides the following relevant categories of culpability: "A – High culpability: • Sophisticated nature of offence/significant planning • Leading role where offending is part of a group activity • Distribution or supply of firearms on a significant scale • Firearm discharged • Prolonged incident B – Medium culpability: • Significant role where offending is part of a group activity • Some degree of planning • Firearm loaded or held with compatible ammunition but not discharged • Other cases falling between culpability A and 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." The guideline also provides for the following categories of harm: "Category 1 • Severe physical harm caused • Severe psychological harm caused Category 2 • Serious physical harm • Serious psychological harm • High risk of death or severe physical or psychological harm • High risk of serious disorder Category 3 • Alarm/distress caused • All other cases not falling into 1 or 2." Mr Watkins 16. Mr Watkins was 29 years old at the date of sentence. He had 24 previous convictions for 57 offences, including for possession of an offensive weapon in 2011, causing grievous bodily harm with intent in 2015 (for which he had been sentenced to three years and nine months' imprisonment) and assault occasioning actual bodily harm in 2017 (for which he had been sentenced to 14 months' imprisonment). The 2015 offence involved Mr Watkins slashing with a knife a man with whom he had had a dispute on a night out. The 2017 offence involved him striking a stranger to the head with a bottle. 17. The judge considered two character references for Mr Watkins: one from a drain jetting company for which he had worked from 2020-2021 and one from the father of his partner. 18. Mr Watkins had written a letter of remorse to the judge. 19. A pre-sentence report assessed Mr Watkins as posing a high risk of causing serious harm to members of the public; noted that he had offended while on licence; and concluded that he was considered by the Probation Service to be immersed in a lifestyle which involved connections with organised crime. 20. The judge decided to afford Mr Watkins 12.5 % credit in relation to counts 1 and 2 because while he had initially pleaded guilty, he had then made an application to vacate his plea. This had been dismissed two weeks before the trial was due to begin. It was agreed that he should receive 25 per cent credit for his guilty pleas to counts 4 to 7. 21. The judge assessed that all six offences Mr Watkins faced fell within category A for culpability and category 3 for harm within the guideline. Mr Watkins' proposed grounds of appeal rightly do not take issue with the judge's categorisation of the offences as falling within category A3. 22. The judge determined that he would have imposed sentences after trial, in respect of counts 1 and 2 alone, of 13 years' imprisonment. With credit of 12.5 %, that amounted to notional sentences of 11 years and four months' imprisonment on each of these counts. 23. In respect of counts 4 to 7, the starting point under the guidelines would be ten years' imprisonment for a single offence. The judge observed that these counts involved two handguns and two lots of compatible ammunition. Further, the revolver was loaded. For these reasons the judge indicated that he would have imposed a sentence after trial of 16 years' imprisonment on these offences, or 12 years when allowance of 25 per cent credit was made. 24. The judge then specifically considered totality, and aggregated all Mr Watkins' criminality on to count 1. That approach led to the judge to elevate the sentence on count 1 to 19 years' imprisonment. 25. Mr Watkins' first and second proposed grounds of appeal contend that the judge unjustifiably imposed sentences above the range stated in the guideline and lost sight of totality. We do not consider that either of these points is reasonably arguable. 26. For counts 1 and 2, as we have said, the starting point for a single category A3 offence was ten years' imprisonment, with a category range of eight to 12 years. It is not reasonably arguable that a notional post-trial sentence for counts 1 and 2 alone of 13 years' imprisonment was unjustified given that the judge had to consider two counts, and had to reflect the aggravating feature of the presence of 39 rounds of compatible ammunition, as well as a silencer and telescopic sight, in addition to the aggravating factor of Mr Watkins' relevant previous convictions. 27. For counts 4, 5, 6 and 7, as we have said, the sentence range for a category A3 offence was eight to 14 years' imprisonment. However, as the judge emphasised, that is the range for a single offence, whereas his determination that the notional post-trial sentence for these offences (taken alone) should be 16 years' imprisonment reflected the appropriate sentence for four offences involving two handguns and two lots of compatible ammunition (including a loaded revolver). 28. The judge specifically referred to the totality principle: see page 15C of the transcript of the sentencing remarks. The judge applied it both in determining the notional post-trial sentences, and again when assessing the extent to which the sentences for counts 1 and 2 should be increased to reflect the offending in counts 4, 5, 6 and 7, and ultimately aggregated all of the offending on to count 1. 29. Accordingly we do not consider that either of the first two grounds of appeal are arguable. 30. The third ground of appeal argues that there was inappropriate double-counting by the judge, in that factors taken into account in the culpability categorisation were then counted again as aggravating features. No specific features which are asserted to have been counted twice are identified in the grounds. We cannot discern any. 31. The final ground of appeal contends that the sentence imposed on Mr Watkins was disproportionate when viewed alongside that of Mr German. It is argued that Mr German was "inferentially the initiating conspirator, if not the end user of the weapon at issue in counts 1 and 2". Reliance is also placed on his two previous convictions for robbery, one of which involved a firearm. 32. The prosecution's note on sentence provided to the judge drew no distinction between Mr Watkins and Mr German in terms of their culpability. It was contended that the appropriate category for them both was A. The characterisation of Mr German's role as the "initiating" conspirator does not chime with the basis on which the judge sentenced him, as we will shortly explain. We therefore do not consider this ground to be reasonably arguable either. 33. The single judge's view was that "stepping back, it is not reasonably arguable … that the overall sentence is manifestly excessive". We agree. Mr German 34. Mr German was aged 38. He had 15 previous convictions for 38 offences. 35. In 2002 he had been convicted of possessing an offensive weapon. In 2007 he was sentenced to nine years and one month's imprisonment for robbery and having an imitation firearm with intent to commit an indictable offence. Mr German had been one of three offenders who, wearing balaclavas, had held up a Securicor ATM delivery while in possession of what witnesses described as a "sawn off shotgun". There was a threat to "kneecap" one of the victims and a threat to members of the public that one of the victims in the ATM bunker would be shot if the public did not back off. 36. In 2013 he had been sentenced to an extended sentence of imprisonment comprising a custodial element of six years and an extended licence period of two and a half years, because he was then found to be dangerous. This was as a result of an organised robbery of a jewellers in which masks were worn and machetes and knives were brandished at the owner and other members of staff. Mr German and his co-defendants threatened to chop off the hands of the members of staff if they did not hand over the Rolex watches that they were wearing. Ultimately the robbery yielded 47 Rolex watches that were on display as well as those worn by the staff, valued in total at £377,000. 37. The pre-sentence report assessed Mr German as posing a high risk of causing serious harm to members of the public. 38. Mr German's father had written a letter to the judge, as has Mr German. He continued to maintain his innocence. 39. In written submissions on Mr German's behalf, Mr Lord contended that the judge should conclude that his case fell within culpability category B within the guideline. It was submitted that the appropriate harm category was 3. The judge disagreed in respect of the first of these issues, and found that the correct culpability category for both Mr Watkins and Mr German was A. 40. The written grounds advance a sole ground of appeal which takes issue with this aspect of the judge's approach. It is contended that the judge erred in placing Mr German within culpability category A, rather than B, within the guideline; and that consequently the judge adopted too high a starting point such that the sentence imposed was manifestly excessive. 41. Mr Nolan developed his submissions orally before us this morning in relation to this ground. He argued that the category should have been B, i.e. medium culpability, because the evidence showed that Mr German had played a “significant role” when part of a group activity, rather than a “leading role” (the wording used in category A). Mr Nolan relied in particular on the fact that Mr German was not the sole conduit; that he was involved for a limited number of days; and that Mr German's involvement was not particularly sophisticated. 42. We do not consider this ground reasonably arguable. The judge had heard Mr German give evidence. This had included Mr German's explanations for his contact with Mr Watkins and Mr Poole up to and including 14 th July 2021. The judge concluded that Mr German's explanations "lacked credibility". He found that Mr German was "heavily involved in this conspiracy" and had "brought together the customer for delivery and the supplier". Further, the judge observed that Mr German was "at ease" doing this because of his background in and experience of serious organised crime: see pages 10F-H of the transcript of the sentencing remarks. 43. Having heard Mr German give evidence, the judge was particularly well placed to assess his level of culpability. The judge said the following about him: "You were the key facilitator in this conspiracy and you brought together somebody who wanted to sell a weapon with somebody who wanted to buy one. Being a middleman does not mean that you are not a leading man. You were a leading man. By your actions you ensured the transfer of a deadly weapon and compatible ammunition made its way from Preston to Manchester smoothly; I am sure in your case there was significant planning over nine days." (See page 16D-E of the transcript.) 44. It is therefore clear from those words that the judge found two elements of the high culpability category present, namely: a “leading role when offending as part of a group activity”; and “significant planning”. The judge was entitled to accept the contention of the prosecution that culpability properly fell within category A for the reasons that he gave. There was a clear evidential basis for these findings. We do not, therefore, consider it reasonably arguable that the judge had erred in this regard. 45. The starting point for a single category A3 offence is ten years' imprisonment, and the range is eight to 12 years. 46. Mr Nolan sought to advance a new, second ground, in relation to the way in which the judge conducted the sentencing exercise, having selected the starting point. Although not the subject of a written notice to amend the grounds, as should have taken place, we have considered this new argument. The argument was to the effect that, having selected the starting point he did, to elevate it further by 40 per cent was manifestly excessive. By this argument Mr Nolan is referring to the fact that the judge elevated the ten year starting point to a 14 year starting point, before considering mitigation. Mr Nolan contended that the judge had done this because of the applicant's previous convictions. 47. However, in our judgment, when the sentencing remarks are looked at in full, it is clear that the matter is more complex than that. We refer in particular to page 16F-G of the remarks, where the judge made clear that he did take into account the aggravating factor of Mr German's similar, serious previous convictions, but also referred to the fact that he was still subject to an extended sentence for robbery at the time of these offences. It was also relevant that the judge had to consider three counts and to reflect the aggravating feature of the presence of compatible ammunition, as well as the silencer and telescopic sight within counts 4 to 6. It was for those reasons that the starting point was elevated. We do not consider it reasonably arguable that the judge erred in this regard. 48. The judge then took into account the mitigation available to Mr German, principally the fact that he had been working at the material time; and that he had broadly complied well with his licence conditions. The judge accepted Mr German’s counsel's submissions that while awaiting sentence, he had acted within the prison estate in a commendable way, assisting a prison officer who was in trouble. These mitigating factors led the judge to reduce the custodial term to 13 years. No complaint is made about this aspect of the sentencing exercise. Conclusion 49. Accordingly, for these reasons we refuse Mr Watkins' renewed application for leave. We also refuse Mr German's renewed application for leave, both on the basis of the written ground advanced and the proposed second ground argued orally this morning by Mr Nolan. _______________________________ 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: rcj@epiqglobal.co.uk ______________________________

2023_11_02-5890.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1516/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1516

cfb2637b8bd6c23ffe7dca6721f0e540dc33c37a57334892767c3eb7249c3ae3

[2017] EWCA Crim 822

EWCA_Crim_822

crown_court

Neutral Citation Number: [2017] EWCA Crim 822 Case No: 201701164/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/06/2017 Before: LORD JUSTICE TREACY MRS JUSTICE WHIPPLE DBE and HIS HONOUR JUDGE PICTON (sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : ZAYDENE SHAHADAT Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Isaacs ( instruct

Neutral Citation Number: [2017] EWCA Crim 822 Case No: 201701164/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/06/2017 Before: LORD JUSTICE TREACY MRS JUSTICE WHIPPLE DBE and HIS HONOUR JUDGE PICTON (sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : ZAYDENE SHAHADAT Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Isaacs ( instructed by Sakhi Solicitors) appeared on behalf of the Appellant The Crown did not appear and was not represented Hearing date: 13 June 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Mrs Justice Whipple: 1. On 10 November 2016, in the Crown Court at Leicester, the appellant pleaded guilty to one count of supplying Class A drugs (heroin) and a second count of possession with intent to supply Class A drugs (heroin). He was sentenced to 3 years’ imprisonment on each count to be served concurrently. 2. He appeals against sentence by leave of the single judge. 3. The facts, in summary, are these. On 7 February 2016, prison officers were monitoring the exercise yard of HMP Leicester via CCTV. The prison officers saw the appellant pass a package to another inmate and as a result of that, the appellant was stopped and searched by prison officers before he was taken back to his cell. During the course of the search the prison officers found two separate clear plastic bags. One of the bags contained 1.04 grams of diamorphine at 63 % purity and the other bag contained 13 small wraps of diamorphine weighing 0.94 grams also at 63 % purity. The 13 wraps were made using prison documentation. The value of the drugs in prison was around £2,800. The appellant was arrested. The appellant answered “no comment” to the questions he was asked during his interview. 4. He was arraigned and pleaded guilty on 10 November 2016, and was sentenced by Mr Recorder William Edis QC on the same day. 5. In passing sentence, the Recorder found that a larger amount of undifferentiated heroin had been passed into the prison and had been split up into smaller quantities by someone in the chain of command. He said that drugs in prison were a curse and that the drug trade in prison presented a significant problem to prison authorities, uninvolved prisoners and society as a whole. It created a market which was often enforced by violence, threats and intimidation. The appellant was 28 years old with 14 convictions for 26 offences, including a 2007 conviction for possession of crack cocaine with intent to supply for which he received a community based sentence. He had a subsequent conviction for possession of class C drugs which the Recorder said did not aggravate the offending. In July 2010 the appellant had been sentenced to 7 years imprisonment for three offences of robbery, and it was the recall on that sentence which led to the appellant being in prison in February 2016 when he committed these offences. The Recorder noted the appellant’s personal mitigation, and the fact that between the release from prison and the index offending the appellant had lived a reasonably worthwhile life. In addition, the appellant had pleaded guilty at the first available opportunity. The Recorder referred to the Sentencing Council’s Definitive Guideline on Drug Offences. He put the appellant in category 3 significant role for Class A drug offences. The guideline starting point which the Recorder adopted as the appropriate post-trial sentence was 4 ½ years. Applying a one third discount for the guilty plea reduced the sentence to one of 3 years’ imprisonment on counts 1 and 2 (concurrent). 6. In his appeal to this Court, the appellant, by his counsel Mr Isaacs, argues that the Recorder erred in putting the supply offence within category 3, because it should have been treated as category 4 and sentenced accordingly. In consequence, and bearing in mind the appellant’s personal mitigation, he argued that the sentence was manifestly excessive. 7. The arguments before us centred on the guideline, as that has been interpreted and applied in the following three authorities, none of which appear to have been cited to the Recorder: R v Sanchez-Canadas [2012] EWCA Crim 2204 , R v Bayliss [2013] EWCA Crim 1067 and R v Melim [2014] EWCA Crim 1915 . 8. At the sentencing hearing the parties were in agreement that the appellant should be considered to have fulfilled a ‘significant role’. The Recorder referred in terms to the subcategory contained in the guideline under the heading ‘significant role’, namely “ supply other than by a person in a position of responsibility, to a prisoner for gain without coercion”. The Recorder rejected the appellant’s suggestion that he had acted under coercion, and concluded that the appellant’s role was significant. The appellant does not argue against that part of the Recorder’s conclusions. In our judgment, this appellant’s role was properly categorised as significant. 9. The issue in this appeal relates to the categorisation of harm. Category 3 of the guideline includes the following types of supply which are not dependent on quantity of drugs: “ selling directly to users (‘street dealing’) ” and “ supply of drugs in prison by a prison employee ”. Mr Isaacs argues that because this was not a “ supply of drugs in prison by a prison employee ” within the latter type, it falls outside category 3 altogether. He argues that the guideline deals with supplies in prison in terms, and only those by a prison employee are within category 3; any other type of prison supply must be classified according to the quantity of the drug involved, and in this case the quantity was within category 4. 10. Mr Isaacs relies on the three authorities already noted in support of his argument. The first of those in sequence is Sanchez-Canadas. In that case, the appellant had sent a prisoner a box containing trainers. The soles had been adapted and hidden within them were 10 ¾ grams of heroin and 23 grams of cannabis resin in eleven wraps. The appellant’s explanation in interview was that the drugs were destined for his friend, whose money the appellant had been managing. The appellant was sentenced on the basis that his role was significant and the harm fell within category 3, the sentencing judge saying that although the indicative quantities fell within category 4, their value within prison would be much greater than on the street, and so the offending was elevated this to harm category 3. The appeal against the sentence of 45 months was dismissed but the appeal court arrived at that sentence by a different route than that adopted by the sentencing judge. Specifically, the appeal court held that this was category 4 harm, with a starting point at the top of that category range, significant role. So far as the harm category is concerned, the Vice President (Hughes LJ) said this: “[10] …the judge's approach of lifting the category to category three because this was a supply into prison, runs into the difficulty that the guidelines specifically contemplate exactly that elevation for some kinds of supply to prisoners but not for this one. The guidelines indicate that there should be such a lift where the offence “is supply of drugs in prison by a prison employee”, and this was not. We do not for a moment however dissent from the judge's proposition, which is amply borne out by the universal experience of criminal courts, that supply of drugs into prison is in itself inherently more serious than the supply of drugs generally is. That is because drugs in prison are a currency, an instrument of power, extortion and oppression and they fundamentally undermine the discipline and good order which is essential to running a prison properly. However, the right way to deal with it is not to raise the category as the judge did.” 11. In confirming that this was significant role, the Vice President said: “[13] …it was perfectly proper to treat this level of culpability as more accurately described as a significant role than as a lesser role. The supply of drugs into a prison ought normally to be regarded as best fitting that culpability category. It will ordinarily demand a prison sentence, even when there is no commercial motive and indeed even where the supplier has come under some moral pressure. Supplies by prison officers or other prison employees are more serious still and are separately dealt with by being placed automatically into category three in the harm scale, irrespective of quantity.” 12. We pause here to note that this case concerns drugs smuggled into prison by a friend or associate outside prison. There was no suggestion that the friend or associate was involved in dealing drugs, either inside or outside prison. No consideration was given, therefore, to the other part of category 3 which relates to ‘street dealing’. 13. The second case is Bayliss. These were appeals against sentence by two family members and an application for leave to appeal by a third. Norma Bayliss was the mother of Faine Bayliss, and Candice Ball was Faine Bayliss’ partner. The three had been jointly concerned in the supply of cannabis and buprenorphine to Faine Bayliss, who was at the time of the offences a serving prisoner. The quantities recovered were 454 milligrams of cannabis and 1.552 grams of buprenorphine. The sentencing judge had sentenced all three on the basis that the offending fell within category 3 harm, rejecting the submission advanced before him that this was category 4. On appeal, Faine Bayliss’ counsel argued that the weights of the drugs were firmly within category 4, and that the guidelines covered cases of smuggling drugs into prison, which offences were only elevated to category 3 when they were committed by prison employees [8]. Norma Bayliss and Candice Ball argued that Sanchez-Canadas applied and that their offending fell within category 4 [10]. The appeal court (His Honour Judge Melbourne Inman QC giving judgment) held that the sentencing judge had been in error in escalating the offending from category 3 to category 4 to reflect the fact that the supply was into prison, and that the quantities of drugs were clearly within category 4 [13]. The court held that the sentence of 2 ½ years for Faine Bayliss was not manifestly excessive; it was properly at the top end of the range for a category 4 offence, leading role, less discount for guilty plea. Leave was refused. Norma Bayliss’ appeal against sentence of 10 months’ imprisonment was dismissed. Candice Ball’s appeal against sentence of 16 months’ imprisonment was allowed and a sentence of 10 months substituted. 14. Again, we pause to note that there was no suggestion in Bayliss that any of the offenders were dealing drugs. There was no discussion of the street dealing limb of category 3. 15. The third and most recent case is Melim. That was an appeal against a sentence of 3 years’ imprisonment for two drugs offences. The appellant had sent letters to two inmates, the first containing 33 grams and the second containing 18 grams of cannabis resin. The sentencing judge said that he was not bound by the guideline on the facts of the case because this was a supply into prison. He imposed a sentence of 3 years on a plea. Wilkie J, giving the judgment of the Court of Appeal, said this: “[14] Where the guidelines deal with the level of harm, in the vast majority of cases, that will be assessed by reference to the quantity of drugs involved in the supply. However, exceptionally, in the case where the offence is supply of drugs in prison by a prison employee, the starting point is said not to be based on quantity but will fall into category 3 of harm, even though the quantity of the drugs supplied is not of an amount which would normally result in harm being assessed at that level but would be at the lower level of category 4. [15] The amount of drugs which were supplied and reflected in these two counts would normally have been placed within category 4 level of harm. In the authorities, applying the sentencing guidelines to offending comprising supply by a non-prison employee into prison, certain principles emerge. We have been referred particularly to the case of R v Sanchez-Canadas … and R v Bayliss … The effect of these decisions is to reflect the guidelines, that is to say in terms of culpability, the role is normally said to be at least significant. Where, as here, the quantity would otherwise fall within category 4 and the supply is by a non-prison employee, then that is the level of harm which must apply. However, those cases also establish the proposition that the fact that the offending comprises supply of drugs within or into prison is to be regarded as a highly aggravating feature, normally placing the level of sentence at the top end of the appropriate range described in the guidelines.” The appeal was allowed, and a sentence of 9 months was substituted. 16. We note that in this case too, there was no suggestion of dealing within prison, nor in consequence any consideration of the street dealing limb of category 3. 17. All three of these cases concern relatively small quantities of drugs being smuggled into prison from outside by friends, associates or relatives, not being employees of the prison. Because the supplier or associate in each case was not a prison employee, and the quantities were small, the harm caused by the offending fell into category 4. In none of these cases was there any suggestion that the offenders had been engaged in drug dealing, and in none did the sentencing judge or the appeal court consider the part of category 3 which refers to ‘street dealing’. In short, the facts of all these cases are very different from the facts of this appeal; and the issue which arises in this appeal was simply not canvassed or addressed in any of them. In our judgment, these authorities do not assist the appellant. 18. Under the guideline, three types of supply fall within category 3: (i) where the offence is selling directly to users, ie ‘street dealing’, (ii) where the offence is a supply in prison by a prison employee, and (iii) where the quantity of drugs puts the offending into that category. With regard to (i) and (ii) the amount of the drug involved is irrelevant – the categorisation depends on the nature of the supply and not the amount of the relevant drug actually supplied. These are different routes into category 3, each of which is independent of the others. The cases referred to earlier demonstrate that a supply into prison which is made by someone other than a prison employee may fall outside category 3 if the recipient is the end consumer of the drugs and the amount supplied is smaller than the quantities identified in the guideline. But the supply of drugs within the prison community is not automatically excluded from category 3 just because it is undertaken by someone other than a prison employee. To the contrary, the supply by a prisoner selling directly to others can still fall within category 3, either because of the quantity involved or, as in this case, because the facts disclose that it was ‘street dealing’. Whether it does or not will depend on the facts of the case. 19. We make the obvious point that ‘street dealing’ is a term of art. The supply does not need to take place on a street in order to be ‘street dealing’. The essence of street dealing, as the guideline states, is that it involves selling directly to users. A person engaged in that activity is a ‘street dealer’, even if they are operating within the prison walls, just as they would be if they were operating outside prison, on the street. 20. We return to the facts of this case. The number of wraps in the possession of the appellant, wrapped in paper from prison documentation, and the fact that the appellant was observed selling drugs in the yard serve to confirm that he was, in effect, street dealing. Defence counsel acknowledged that if the behaviour of the appellant, as captured on prison CCTV, were transposed to the street then significant role category 3 would be the correct classification of the offence. It would be illogical if the fact that the appellant was in prison produced a different result and wholly unjust that this offence should be put in a lower category than if he had been dealing on a street corner. 21. The Recorder’s starting point was 4 ½ years. That is the guideline starting point for Class A, category 3 significant role. Following Melim at [15], the Recorder should have moved up from that starting point towards the top of the range, to reflect the highly aggravating feature of a supply within prison. 22. The Recorder considered the aggravating and mitigating factors. He concluded: “Doing the best I can to balance those factors out, I think the starting point should be the end point…”. There was personal mitigation available, but, if anything, the appellant was somewhat fortunate in this assessment. 23. The Recorder then reduced the sentence by a third to reflect the plea entered at the first available opportunity and imposed a sentence of 3 years’ imprisonment. 24. The sentence was not excessive and accordingly this appeal is dismissed.

2017_06_27-4004.xml

sentence

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/822/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/822

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[2007] EWCA Crim 1556

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supreme_court

Neutral Citation Number: [2007] EWCA Crim 1556 Case No: 2004/04441C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HIS HONOUR JUDGE STEWART QC T20037570 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/07/2007 Before : LORD JUSTICE THOMAS MR JUSTICE AIKENS and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Carl Raymond Wood Appellant - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 1556 Case No: 2004/04441C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HIS HONOUR JUDGE STEWART QC T20037570 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/07/2007 Before : LORD JUSTICE THOMAS MR JUSTICE AIKENS and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Carl Raymond Wood Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Alistair MacDonald QC for the Respondent Malcolm Swift QC and Stephen Ferguson for the Appellant Hearing date: 24 May 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas : The murder of Mr Turner 1. On 23 October 2003 Tarquin Turner, a housekeeper at a hospital for the aged, was murdered in Bradford. He was 31 years old and of slight build, weighing 8 stone and being 5’ 2” tall. He had left his home at 9.30 p.m. to go to his local cricket social club to play snooker. He withdrew cash at 9.55 p.m. and then walked along a quiet road, Intake Road. At the same time William Charlton, a young man aged 20, 6’ 2” high and the appellant, then aged 17 and 5’ 8” inches high were walking along that road. Charlton had been drinking heavily that afternoon and evening. The appellant had met him in the pub and they had discussed robbing someone. Two pieces of wood were torn off a fence by either Charlton alone or the appellant and Charlton. They ran up behind Mr Turner; Charlton struck him on the back of the head with a piece of wood. He was knocked to the ground. The force was such that it caused his spine to be dislodged. He was then punched in the face and hit with the wood; the forensic evidence showed one piece of wood had definitely been used, but that did not rule out the use of the other piece. The appellant and Charlton then robbed him of his mobile telephone, his wallet, £20, bank cards, a St Christopher’s chain and other papers. The appellant used the mobile phone to call his girlfriend and then sold the mobile telephone for £45. He bought cannabis with the proceeds. 2. At about this time, a fellow member of the cricket club walked past; he saw what he thought was a Guy Fawkes dummy on the ground and a young lad rooting about what he thought was the dummy. He thought the young lad was trying to put the dummy together. That lad was the appellant. The witness was then assaulted by Charlton. 3. Mr Turner was found by other members of the cricket club, an ambulance called and he was pronounced dead on arrival at hospital. His death was caused by blows to the head and neck which caused internal bleeding to the brain; the forensic evidence was that these blows were caused by a blunt weapon such as the fence posts, fists or kicks. The course of the trial 4. For that robbery and murder Charlton and the appellant were tried at Bradford Crown Court before His Honour Judge Stewart QC and a jury in June 2004; it was the prosecution case that they had each taken a fence post and jointly attacked Mr Turner to rob him. On the first day of the trial the appellant and Charlton pleaded guilty to robbery. 5. Each defendant ran a “cut-throat” defence. i) Charlton accepted he was guilty of manslaughter as he admitted he had struck one blow with a piece of wood; he denied that he intended to cause grievous bodily harm as all he intended to do was to knock Mr Turner out and steal from him. His evidence was that the appellant had drawn his attention to Mr Turner and each then took hold of a piece of the fence. After Charlton had delivered one blow to Mr Turner with the piece of wood, they both fell over and he struck Mr Turner with his fists two or three times. He saw the appellant strike with the wood at Mr Turner, but he did not know if it hit Mr Turner; he said in cross-examination by the prosecution that the appellant did hit Mr Turner with the wood. They both then left, the appellant saying he had Mr Turner’s phone and his wallet, but the appellant then went back to where Mr Turner lay; he followed and the appellant went through his pockets. ii) The appellant accepted he knew that Charlton would threaten violence to Mr Turner and that after violence had been inflicted by Charlton, he stole from Mr Turner. He therefore accepted guilt for the robbery, but his evidence was that he had not used any violence towards Mr Turner. Nor had he participated in any joint plan to attack Mr Turner; he had merely agreed they would threaten him. He had not seen Charlton use a weapon on others and he did not realise that Charlton intended to kill or cause serious bodily harm or that Charlton might kill or cause serious bodily harm. He went to urinate whilst Charlton struck Mr Turner repeatedly with both fence posts; he did not use or hold any part of the fencing. He had robbed Mr Turner whilst on the ground; it was Charlton who had struck all the blows, using two pieces of wood. He had tried to stop the attack whilst it was taking place. 6. During the course of the trial an application was made on behalf of the appellant to cross examine three prosecution witnesses about threats made to them by Charlton’s family whilst the appellant was in custody. That application was refused by the judge and forms the sole ground for this appeal. 7. At the conclusion of the trial both were convicted of murder. The appellant was sentenced to 8 years for robbery and life imprisonment for murder with a minimum term fixed at 13 years, less time on remand. Charlton was also given life imprisonment but with a minimum term set at 15 years; Charlton applied to this court to appeal against that sentence but that was dismissed ( [2006] EWCA Crim 834 ). 8. An application was made by the appellant for leave to appeal to this court in June 2004 on the grounds that the ruling as to the scope of cross-examination to which we have referred was wrong. Leave was refused. Fresh lawyers were instructed in 2005 and a renewed application made to this court in February 2007 on the same ground but with more material from the trial. Leave was granted on the basis of that renewed application on the one issue raised. For that purpose it is necessary to refer to the evidence of what happened after the murder and to the police interviews of the appellant. The evidence of what happened after the murder and the appellant’s police interviews 9. After the robbery and murder and the selling of the mobile phone, i) The appellant went to the house of a friend, Lee Yeadon, who lived there with his partner Helen Moore; the appellant told Yeadon that Charlton had killed someone; Charlton then arrived and said that they had robbed a person. ii) The appellant telephoned Lee Yeadon the following day (24 October) and spoke again about Charlton killing someone. Charlton overheard this; he told the appellant, Lee Yeadon and Helen Moore that they should keep their mouths shut and he knew where their families lived. Later than day, the appellant met Carl Lomax and Jason Hartley; he told them that he (the appellant) had been present when Charlton killed a man but he had not killed him and had tried to stop Charlton; the appellant admitted to Lomax that he had rifled the man’s pockets. They discussed going to the police. The appellant decided not to. He visited Lee Yeadon and burnt his clothes and shoes there. Charlton again visited that house; he burnt his clothes. The appellant told him that he had spoken to others; Charlton again told him and the others to keep their mouths shout or he would petrol bomb their houses. iii) The following day, the appellant asked Lee Yeadon to give him a false alibi. iv) When Carl Lomax was seen by the police on 4 November he denied seeing the appellant and Charlton on the day of the killing, but on 6 November made a full statement telling the truth. 10. The appellant was arrested at about 7.15 on 4 November 2003 and Charlton on 5 November 2003. 11. Lee Yeadon and Helen Moore made statements stating that on the night of 5 November, Charlton’s brother, mother and step father came uninvited to a party and made threats at their house to them, Carl Lomax and the appellant’s mother. One of the threats was: “Grasses get sawn off shotguns through their doors and petrol bombed.” The threats were repeated the following day and extended to the appellant’s brothers. Lee Yeadon and Helen Moore said in their statements they had been terrified. Carl Lomax made a statement to a similar effect. 12. The appellant was interviewed twice on 4 November, three times on 5 November and once on 6 November. During those interviews he lied as did Charlton when he was interviewed. These lies were summarised to the jury in a characteristically clear way by the judge. i) At the first interview on the morning of 4 November, the appellant denied knowing anything about the matter save what he had read in the papers. He gave a false account of his movements. The account of the witness who had seen a young man going through the pockets of Mr Turner was put to him; he denied it was him. He swore to God he had never committed a street robbery and hoped the police would catch whoever was responsible. He made no mention of Charlton. ii) In his second interview on the afternoon of 4 November the appellant denied any knowledge of the crime and gave details of his false account of his movements. He said he knew Carl Lomax and was a good friend of Lee Yeadon. He knew Charlton, his brother and family but did not like them, though he found Charlton “alright.” iii) In his third interview on the morning of 5 November the appellant repeated his account of his movements and described in detail a fictitious person who he said had contacted him on the evening in question. He denied being with Charlton. iv) In his fourth interview later in the morning of 5 November, the appellant admitted his involvement in the robbery for the first time. He attributed the idea of robbing someone to Charlton and he stated that Charlton had armed himself with two pieces of wood and ran up to the deceased and then hit him repeatedly with the wood. Charlton had then started checking the deceased’s pockets and had stolen the chain from the deceased’s neck. He admitted ringing his girl friend on the phone stolen from Mr Turner and selling the phone. The appellant, however, continued to lie; he denied putting his hand into and going through the deceased’s pockets; he said he merely patted them on the outside and maintained that he was checking to see if the deceased was breathing and trying to stop Charlton. v) In the fifth interview which followed directly on from his fourth interview the appellant lied about the way he had disposed of the clothes he was wearing at the time of the robbery and murder; he said he had thrown away his shoes and had lent his gloves to someone. He also lied about the St Christopher’s chain which had been stolen from Mr Turner. The appellant also continued to stress that Charlton was responsible for the attack and he said the deceased’s face looked like Charlton had hit it about 50 times. He asked the police not to tell Charlton what he had said. vi) In the sixth interview on 6 November the appellant lied about the bus pass; he maintained he picked it up as they ran away. He also lied about the reason he burnt his clothes. He mentioned in the course of this interview the threats made by Charlton to him and Charlton telling him that if he could not carry them out his brother would. 13. In his evidence, his explanation of the lies he told was: i) He wanted to get out of the police station; that was the explanation he gave about the lies in his first interview and his further lies in his fourth interview. He said he lied in his fourth interview about Charlton taking the St Christopher’s chain and the phone because he wanted to go home: “I wanted it all to be over and done with so I could go home.” He maintained this and repeated it several times in the face of quite firm cross-examination, finally stating that he thought lying was worth a try. ii) He also explained his lie in saying that he swore to God he had never robbed anyone, as that was the first thing that came into his head. iii) He said repeatedly in cross examination that he had his reasons for lying. iv) He also gave evidence that he lied because he was frightened of Charlton and Charlton’s family as they were known to be violent. He had had threats made to him. The ruling on the cross examination 14. Lee Yeadon, Carl Lomax and Helen Moore gave evidence on the matters to which we have referred in paragraph 9 including threats made to them by Charlton himself. The appellant wanted to cross-examine these witnesses about threats made to them by various members of Charlton’s family on 5 and 6 November, as we have set out at paragraph 11, and not merely by Charlton himself who had, as we have stated, been arrested on 5 November. During the period of 5 and 6 November, as we have already stated, the appellant was himself in custody and therefore cannot have known of the threats. However, the reason the appellant wanted to adduce this evidence was that the fact that threats were made to these others would support the genuineness of the appellant’s belief that the threats made by the family were actually being made. The fact that the family was making these threats whilst he was in custody provided independent support for his position. Counsel on behalf of Charlton opposed that cross-examination on the basis that it was not relevant, as the appellant had lied before the threats were made by the family and thus the threats could not be relevant to his reason for lying; the prosecution supported the position taken on behalf of Charlton. 15. The judge made the following ruling: “Mr Malcolm Swift, QC, has applied to be allowed to cross-examine three witnesses about threats allegedly made by William Charlton’s family to those witnesses. Mr Swift represents [the appellant], and Mr Swift submits to me that the fact that these threats were made provides corroboration for the validity of the appellant’s belief that if he told the truth and did not lie, sanctions could be brought to bear against either him or members of his family. It is undisputed that [the appellant] was interviewed on 4 November, and lied. It was not until his fourth interview on 5 November that he indicated he was going to tell the truth, and this was after he had spoken to his solicitor. It is conceded by both counsel for William Charlton and counsel for the Crown, that if this evidence is relevant to the appellant’s defence, then I cannot prevent Mr Swift cross-examining this evidence in. But they submit that because of the fact that [the appellant] had lied before these threats were made, that they cannot be relevant to his state of mind as a reason for lying. It seems to me that a distinction has to be drawn between whether or not the threats are relied upon as corroboration of the fact that William Charlton himself made threats, or whether or not they are sought to be adduced as corroboration for [the appellant’s] state of mind. I have come to the conclusion that this evidence cannot be relevant to the issue of why [the appellant] lied, and I cannot see in those circumstances that they can provide corroboration for his state of mind, since the threats which Mr Swift seeks to rely upon post-date the lies which [the appellant] told to the police. In those circumstances, I have decided that this evidence is not relevant to the issue for which purpose Mr Swift seeks to rely upon it, and should therefore not be allowed before the jury.” 16. It was submitted to us by Mr Swift QC for the appellant that the judge was wrong. Although the threats could not have influenced the appellant as he was in custody, the evidence was plainly relevant, as it would provide independent support of the evidence given by the appellant that he was frightened of threats from Charlton’s family. 17. The issue as to whether the judge was right to refuse the appellant’s counsel the right to cross examine depends on whether the evidence was relevant. In our view, it was clearly relevant. It was probative of the reason why the appellant claimed he had lied. His lies were an important part of the prosecution case, as it could forcibly be contended that, if he was innocent of the murder there was no reason for his failure to go to the police immediately and no reason for him to lie in his police interviews. Evidence of the threats from the others would support his account that there were such threats, even though he did not know of them. 18. We therefore consider that the judge was wrong to exclude the evidence. Was the conviction nonetheless safe? 19. The remaining question for the court is whether the conviction is nonetheless safe, a question to be determined in accordance with the decision in R v Michael George Davis [2001] 1 Cr App R 8 and the cases referred to in that decision. We would only consider the conviction safe, taking the summary of the law set out at paragraph 56 of Michael George Davis, if, on the assumption that the wrong decision on law had not occurred and the trial had been free from that legal error, the only reasonable and proper verdict would have been one of guilty. 20. The evidence in relation to murder against the appellant was: i) The appellant knew Charlton intended to rob Mr Turner. The appellant remained present throughout and then stole from Mr Turner in the way we have described. ii) The account given by Charlton. Although it is clear that Charlton had every reason to attribute as much as possible to the appellant, there is one aspect of his account that may have some independent support. It seems to us that it is inherently unlikely that if Charlton was going to attack Mr Turner on his own he would have done so with two pieces of wood. As it is clear that two pieces of wood were torn from the fence, Charlton’s account of doing this jointly with the appellant is inherently more likely than the appellant’s account of Charlton taking both pieces and using both pieces of wood. iii) The appellant’s rifling of Mr Turner’s pockets; he must have known he was very seriously injured. iv) The appellant’s burning of his shoes and clothes. The destruction of the shoes that the appellant was wearing removed any link that could have been established between the appellant and the injuries caused to Mr Turner. There was no reason for him to have destroyed his shoes and clothes if he had done no more than rob Mr Turner. There was no reason attributable to fear of Charlton or his family that explained his lies on this. He said in his evidence in chief that he did this because he did not want to get caught. He did not suggest it was due to threats from Charlton or his family when cross-examined by the prosecution, though he attributed the idea for burning them to Charlton. v) The lies he had told. As we have set out above, the explanations for his lies varied. 21. Clearly part of the explanation for lying was the threat from Charlton and his family; but the jury heard evidence from Lee Yeadon, Helen Moore and Carl Lomax that supported his fear from the threats made by Charlton himself. The point made forcibly by the appellant was that the jury did not hear evidence of the threats made by Charlton’s family. Moreover we accept that the appellant did seem inhibited in the answers he gave in his evidence when he said repeatedly simply, but without further explanation, that he had his reasons for lying. He did, however, make clear that he feared not only Charlton, but his family. 22. Yet the jury took into account the threats made by Charlton himself which were directly made to the appellant. Those were clearly the threats which would, if the jury had attached weight to them, have been far more operative on the appellant. We do not think, in these circumstances that it would have made a difference if they had heard evidence of the threats made by the family. 23. Moreover it is significant that when in his fourth interview, he said he would tell the truth, he attributed to Charlton aspects of the robbery (such as the taking of the St Christopher’s chain) that he had committed. These lies cannot have been told by him out of fear of Charlton or his family; if that had been the case he would have minimised Charlton’s part. The reason for the lies can only have been to minimise his part in what had happened. Conclusion 24. In our judgment, despite the error made by the judge, we consider that the verdict of the jury that the appellant murdered Mr Turner is a safe conviction. Even if the judge had not made the error he did and the cross examination had been permitted, the only reasonable and proper verdict would have been one of guilty. The appeal is accordingly dismissed.

2007_07_04-1156.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1556/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1556

52e8ff5c82c10d2d40a948bde02538f861d018a50c4e9de99708994edce822c8

[2024] EWCA Crim 31

EWCA_Crim_31

crown_court

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 31 No. 202302930 A4 Royal Courts of Justice Tuesday, 16 January 2024 Before: LORD JUSTICE POPPLEWELL MR JUSTICE CHOUDHURY HER HONOUR JUDGE ANGELA RAFFERTY KC REX v STEVEN ARTHUR CONNOLLY __________ 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 CACD.ACO@opus2.digital _________ Mr N Soppitt appeared on behalf of the Appellant. The Crown were not represented. _________ JUDGMENT MR JUSTICE CHOUDHURY: 1 The appellant, who is now aged 37, pleaded guilty at the first opportunity to possession of a bladed article (count 1) and affray (count 2). On 9 August 2023, in the Crown Court at Teesside before HHJ Hatton, the appellant was sentenced to 28 months' imprisonment on count 1- and 24-months’ imprisonment on count 2, to run concurrently. The appellant appeals against the total sentence of 28 months' imprisonment with the leave of the single judge. 2 The background to this matter can be briefly stated as follows. At around 2 a.m. on 10 June 2023 the appellant attended at an address in Hartlepool which is occupied by the complainant, Ms Pounder, and her two children. The appellant had been in a relationship with Ms Pounder for about three years. They have a child together but had separated around two months earlier. Ms Pounder's cousin, Anthony Pounder, was also present at the time as well as another friend. The appellant banged on the front door. When Mr Pounder opened the door, with the complainant standing behind him, they saw the appellant standing there holding an axe. About a week earlier, the appellant had sent the complainant a picture of an axe on social media, with the words, "I'll come round and there will be a big problem." The complainant closed the door whilst Mr Pounder stayed outside to try to fend off the appellant. The appellant started shouting and punching the outside wall and hitting it with the axe. The appellant tried to enter the property but was prevented from doing so by Mr Pounder. The appellant then left the property but entered a neighbour's garden, knocking over a bin in the process and hitting it with the axe. The appellant then began to pace up and down the street, shouting, "Just you wait," and "Wait until I get in that house." 3 This incident, which also included the appellant goading Mr Pounder into fighting with him, lasted for about 30 minutes. Officers were called to the scene. When they arrived, they found the axe handle in the street and the axe head, which had snapped off, in the complainant's garden. When arrested, the appellant said, "I haven't made threats to assault her. I made threats to assault her cousin." 4 In sentencing the appellant, the judge found that this was "undoubtedly a terrifying experience for all who witnessed it". The judge noted that the combination of the two offences made the matter particularly serious. Applying the relevant guidelines, he found that the bladed article offence fell within Category 1A as serious alarm or distress has been caused. The starting point for such an offence is 18 months' imprisonment with a range of one year to 30 months. (The judge referred to a range of up to two years which appears to have been a slip). As to the affray, this was also found to be a Category 1A offence with a starting point of two years and a range of 18 months to 33 months. 5 The Judge then took account of the previous convictions. It was noted that the appellant had been convicted of affray in 2005 which, the judge acknowledged, "was a long time ago". The affray involved the use of a metal pole. There was a further caution for affray in 2008. The judge also mentioned a more recent conviction, namely that in 2021, for threatening to destroy or damage property. There again, the appellant had turned up at the property of an ex-partner. On that occasion, he was threatening to cause damage to motor vehicles. The judge considered that those offences “considerably aggravate the offending”, and that the appellant had “learned nothing” from his previous experiences of the court system. 6 The judge concluded that in these circumstances the notional sentence before discount for plea for both offences after trial would be 42 months' imprisonment. Applying the discount of one-third for plea resulted in a sentence of 28 months for each offence. These were ordered to run concurrently. The sentence on count 2 was subsequently altered under the slip rule to 24 months, the judge having been alerted to the fact that the maximum sentence for affray was 36 months and not five years, as he had believed. The judge also added that even if the sentence had been at a level that could be suspended, his view was that appropriate punishment could only be achieved by immediate custody. This was because of a poor history of non-compliance with court orders and the absence of any realistic prospect of rehabilitation in the light of his antecedents. 7 Leave to appeal has been granted on two grounds: (i) the notional sentence before discount for plea was too high; and (ii) the judge failed to take sufficient account of the fact that the majority of the Appellant’s previous offending had occurred more than 17 years ago. 8 Mr Soppit, who appears for the appellant, as he did below, submits that the category range amply accommodates the aggravating features of the case, and that whilst totality would entitle the judge to increase the lead sentence to take account of the overall criminality involved in the two offences, an increase to 24 months from the starting point and 12 months over the upper end of the range for a Category 1A offence resulted in a sentence that was manifestly excessive. 9 We agree with those submissions. Given that the two offences arose out of the same set of events the judge was entitled to impose concurrent sentences. Applying totality principles, the judge was also entitled to increase the sentence for each offence (or for the lead offence) to take account of overall criminality involved. However, we do not consider that the circumstances of this case warranted an increase in the notional sentence before discount for plea to one that, in the case of count 1, exceeded the starting point by 24 months and the upper end of the category range by 12 months. 10 Judges are entitled, having considered the aggravating factors and totality, to move outside the identified category range, but will do so bearing in mind the maximum sentence for the offence (which should, ordinarily, be reserved for the most serious offending of its type) and that the category ranges are intended to cover a wide variety of scenarios. To depart so substantially from the starting points and the category range would require considerable justification, which is not present here. The starting point of 18 months for a Category 1A bladed article offence already assumes use to cause serious alarm and distress, which is also a factor indicating a higher harm for the affray. The various aggravating factors, including intoxication and the recent 2019 conviction, would warrant a significant uplift which would be offset to some extent by the mitigation stemming from the appellant's ADHD. Even allowing for a further uplift to take account of the overall criminality involved in the two offences, could only take one up to the top of the range but not beyond. 11 The judge's notional sentence for affray was the very maximum that could be imposed for that offence. Whilst the offending was serious and did cause considerable distress to those who witnessed it, the appellant's behaviour cannot be said to be the most serious of its kind. Indeed, the judge's initial notional sentence for affray of 42 months, which is 18 months lower than the wrongly assumed maximum sentence of five years, supports the view that it was not the most serious offending of its kind. 12 In our judgment, taking account of all the relevant factors, the notional sentence of 30 months for the bladed article offence (i.e.at the upper end of the range for a Category 1A bladed article offence), and 30 months for the affray (i.e. just below the upper end of the range for affray) would properly account for the overall degree of criminality involved. The resulting sentence after discount for plea would be 20 months which, in our judgment, would be a just and appropriate sentence in all of the circumstances. 13 Accordingly, the sentences of 28 months on count 1 and 24 months on count 2 are both quashed and replaced with a sentence of 20 months on each concurrent. The appeal is allowed to this extent. 14 Whilst this brings the sentence within the realms of suspension, we agree with the judge that suspension would not be appropriate in this case. This was serious offending which came only a few months after a conviction for a not-dissimilar offence outside the home of another ex-partner. Although we note that the appellant has made and continues to make good progress in prison, the seriousness of the offending in the face of such a recent conviction renders suspension inappropriate. _______________

2024_01_16-5982.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/31/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/31

cd3d1231db2f135e4af2039ec28b030c56772425194c114ffc872a8e7b2a5ce3

[2012] EWCA Crim 133

EWCA_Crim_133

crown_court

Neutral Citation Number: [2012] EWCA Crim 133 Case No: 2011.03448 and 2011/03841/C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LUTON CROWN COURT HH Judge Mensah T2010 0478 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/02/2012 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE HOLMAN and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - v - Court Appellant And R Respondent - v - Gu Appellant - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2012] EWCA Crim 133 Case No: 2011.03448 and 2011/03841/C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LUTON CROWN COURT HH Judge Mensah T2010 0478 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/02/2012 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE HOLMAN and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - v - Court Appellant And R Respondent - v - Gu Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - G Porter (instructed by CPS ) for the Respondent T Wainwright for the Appellant Court D Keating for the Appellant Gu Hearing date: 25 th January 2012 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is an appeal by Bernard Court and Xiufen Gu, a married couple, against their convictions on 27 th May 2011 in the Crown Court at Luton before Her Honour Judge Mensah and a jury of two counts of the ancient common law offence of keeping a disorderly house. The appellant Gu was also convicted of a third count of transferring criminal property, but that conviction depended on her conviction of the first two counts. Suspended sentences of imprisonment were imposed. 2. The facts are very simple. The appellants rented two properties in Hemel Hempstead. A term of the tenancy agreement or lease in each case was that the property should not be used for immoral purposes. This however this not a civil case in the County Court about possible breaches of the terms of the tenancy. The allegation was that between 31st January and 19 th February 2010 each property was kept as a “disorderly house”. 3. To demonstrate that each house was indeed disorderly the prosecution relied on very limited evidence which related to sexual services said to be offered from both addresses. Two commonplace, unremarkable and non-descript advertisements were found by the police, along with other advertisements of a similar nature, in the personal services section of the local newspaper. No addresses were given. However two mobile telephone numbers were advertised. The officers telephoned both numbers and they were, as we understand it, offered sexual services. 4. On 18 th February 2010 the properties were visited by the police. At one house they found a scantily dressed woman and the appellant Gu. Court arrived there during the police search. No one was found at the second house. A large number of condoms were found at both addresses. In one house one vibrator was found. No other mechanical devices and no instruments were discovered. No customers were found at either house. No customers and no woman offering services were observed going to or from either house. 5. The case proceeded on the basis that only one woman was ever offering sexual services at any one time, and that only one customer at a time was ever present at either house, and that the sexual services on offer did not go further than normal sexual intercourse. When we made enquiries of the prosecution we were told that no complaint had been received and no concern expressed by people living in either neighbourhood. 6. The appellants were interviewed by the police. Effectively Court made no comment in interview, but he denied he had seen any girls at one of the properties and said that friends of his wife lived at the other. His wife gave a prepared statement. She denied that she was running a brothel. She agreed that she provided massage services, and the woman with her at the property was a friend who stayed with her from time to time. 7. The appellants were first charged with acting or assisting in the management of a brothel, contrary to section 33A of the Sexual Offences Act 1956 [Arch 20-229]. However the prosecution concluded that they could not establish that the premises constituted a brothel for the purposes of this enactment. The appropriate charge should have been that, as tenants, the appellants were guilty of using the premises for prostitution. This is a summary offence only, and the usual six month limitation period applied. It was therefore too late for this offence to be prosecuted. So the indictment alleging the management of a brothel was amended to the common law offence of keeping a disorderly house. 8. The Sexual Offences Act 2003 is vast and, taking into account a number of provisions from earlier Sexual Offences Acts which were not repealed, apparently comprehensive legislation identifying the vast number of different activities which constitute sexual crime. Counsel reminded us that there are now 35 different statutory provisions which relate to what can loosely be described as the sex trade. Comprehensive as it appears to be, the statute did not abolish the common law offence of keeping a disorderly house. 9. In the context of such detailed statutory provisions relating to sexual crime in its many different manifestations, an ancient common law offence should not normally be expanded beyond well established parameters by judicial decision. The reality is that on the evidence available in this case the conviction of the appellants represented a significant widening of the ambit of the ancient offence. 10. Our attention was focused on R v Tan and others [1983] QB 1053 . Tan and others were accused of keeping a disorderly house. The difference between the facts of that case and the present are encapsulated in the advertisements, of which one example in Tan read: “Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble applicants, T.V., C.P., B.D. and rubber wear. …” 11. Services of this kind were indeed provided. According to the judgment, they were “of a particularly revolting and perverted kind … with the aid of a mass of equipment, some manual (such as whips and chains), some mechanical and some electrical, clients were subjected at their own wish and with their full consent, to a variety of forms of humiliation, flagellation, bondage and torture …”. 12. In one of the earlier cases referred to in the judgment, R v Berg and Others [1927] 20 Cr. App. R 38, the activities in the disorderly house involved exhibitions of a perverted nature, and in R v Quinn and Others [1962] 2 QB 245 the premises were used for the performance of acts which were “seriously indecent and, in some respects, revolting”, and the public was invited to resort to the premises for indulging in “perverted and revolting practices”. 13. In R v Tan itself the court indicated that before a defendant could be convicted the jury had to be satisfied that the services provided were open to members of the public who wished to partake of them, and were “of such a character and conducted in such a manner (whether by advertisement or otherwise) that their provision amounts to an outrage of public decency, or is otherwise calculated to injure the public interest to such an extent as to call for condemnation and punishment”. The entire judgment proceeds on the basis that the provision of what was described as “straightforward sexual intercourse” would not be sufficient to constitute this offence. 14. The researches of counsel have not found anything in the old books which suggest any case where, on facts remotely similar to those present in this case, there has ever been a prosecution, let alone a conviction for the offence of keeping a disorderly house. 15. We have reached the unhesitating conclusion that the circumstances described here, taken at their highest, were not capable of falling within the scope of the common law offence. The criminality which should have been alleged was that the appellants allowed the premises of which they were tenants to be used for prostitution. That however cannot be an appropriate basis for upholding the use of the common law charge. 16. At the trial in the Crown Court, the judge should have upheld the submission that there was no case in law for either appellant to answer. The convictions are unsafe, and we indicated at the end of the hearing that they would be quashed. 17. There were appeals against sentence, which no longer arises for consideration, but which we must mention. Both appellants were sentenced to short terms of imprisonment, suspended for 12 months, with a curfew requirement. It was most unfortunate that following the trial and the conviction of the appellants, the judge gave an unequivocal indication to them in open court that when they came to be sentenced, there would be no custodial sentence. The imposition of a suspended sentence was inconsistent with that public indication. When the issue was raised with the judge she suggested that a suspended sentence was not a custodial sentence. That was an error. Any sentence of imprisonment, even when, for particular reasons, suspended, can only be imposed if the custodial threshold is passed and must always be treated for what it is, a custodial sentence. If these convictions had not been quashed, the appeals against sentence would have been allowed on the basis that the sentences imposed were inconsistent with the judge’s unequivocal indication of the eventual outcome.

2012_02_09-2927.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/133/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/133

6a0b7f67ec26c49ef3f0723eab9707a7f1273eed296cb0437909c70b09222bde

[2011] EWCA Crim 2276

EWCA_Crim_2276

crown_court

Neutral Citation Number: [2011] EWCA Crim 2276 No: 2011/3757/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 Royal Courts of Justice Strand London, WC2A 2LL Thursday, 6 October 2011 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE CRANSTON MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - ATTORNEY-GENERAL'S REFERENCE NO 54 OF 2011 - - - - - - - - - - - - - - - - - - - - - Computer Aided Tra

Neutral Citation Number: [2011] EWCA Crim 2276 No: 2011/3757/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 Royal Courts of Justice Strand London, WC2A 2LL Thursday, 6 October 2011 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE CRANSTON MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - ATTORNEY-GENERAL'S REFERENCE NO 54 OF 2011 - - - - - - - - - - - - - - - - - - - - - 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 E Brown QC appeared on behalf of the Attorney General Mr J Ryder QC and Mr K Molloy appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (As Approved by the Court) 1. THE VICE PRESIDENT: Her Majesty's Solicitor General seeks leave to refer under section 36 of the Criminal Justice Act 1988 a hospital order with restriction order made at the Central Criminal Court upon a defendant who had been convicted of manslaughter and possession of a firearm with intent to endanger life. The application raises not for the first time, but apparently for the first time in this case, the complex relationship between custodial sentences on the one hand and, on the other, orders under the Mental Health Act 1983 in relation to offenders who suffer from mental disorder. We give leave. 2. The defendant was born on 1st January 1992. He was a little less than a week past his 18th birthday on the night of 5th/6th January 2010 when this killing occurred. The defendant came to the United Kingdom originally from Somalia where he was born. He came first at the age of 11 to join his father who was already here and at that stage lived with him. However, both father and son returned to Somalia when the defendant was 13 or thereabouts. Approximately two years after that, and thus when he was only about 15, he came back unescorted to the United Kingdom and since then appears to have been on his own. He may well formally have been in care after return but all the indications are that since 2008 he has either been in custody or has been living on his own resources and in particular following a life of crime as a supplier of class A drugs, working, it would appear, for others, although also having at least one subordinate ("runner") working for him. He was removed from school almost immediately after he returned to this country following an incident which led to a sentence of 12 months detention and training order for violent disorder. Since then he has had no education and has never been in any form of legitimate employment. He has a number of other convictions, chiefly for possession of drugs, although also for escape from custody, for failing to comply with the licence requirements of his detention and training order and for disorder. He appears to have been at all material times a reasonably heavy user of cannabis himself, although his accounts of the extent of his use has not always been consistent. 3. On 5th and 6th January 2010 this defendant was sent by one of his drug dealing superiors to seek out a rival dealer. Arrangements were made for him to be armed with what seems fairly clearly to have been a street gun, a shotgun. He went in search of the opposition with an associate, one of whose roles was to drive him there and away afterwards. They successfully found their rivals, one of whom was Mahamood Jama, the man who was killed. He too had an associate with him. He was himself a violent man, it appears. Certainly he was armed that evening with a knife and there had been a dispute involving some violence between him and some other parties. 4. The defendant hid himself in a darkened building and emerged to confront the opposition. There was a verbal confrontation and in the course of it he fired his gun vertically upwards into the air. There then ensued a chase in which the defendant was pursued by the deceased and his associates, eventually into a block of flats where they grappled with each other. During that fight the gun was discharged again, killing Jama. En route to the flats the defendant had turned, certainly once and probably twice, pointed the gun at his pursuers and threatened to shoot but had not fired. 5. After the struggle in the block of flats culminating in the death of Jama, the defendant ran to the car where his associate was waiting and made good his escape. The gun was never recovered, apparently having either been destroyed or returned to whoever normally looked after it. The result of that is that it was impossible to say whether it was a single-barrelled gun which the defendant had reloaded or a double-barrelled gun. The defendant always claimed that it was double-barrelled and that may well, it seems to us, be the truth. The relevance of that is that if it was always a double-barrelled loaded gun it is right to say that he could have discharged it earlier than in the course of the struggle. 6. Thereafter the defendant took what were plainly practised steps to avoid capture, including the destruction of the SIM card in the mobile telephone that he was using at the time, and remained at large until 27th May, nearly five months later. It is unnecessary to rehearse the investigation which was no doubt extensive and which eventually proved that he had indeed been the gunman. 7. He was tried on an indictment for murder. He admitted in the face of the evidence possession of the gun but his case was that he meant only to frighten and that the killing was either lawful defence or accident in the course of the struggle. The jury was faced with evidence of what had happened in the flats only for the defendant on the one hand and the criminal associate of the deceased on the other. The jury acquitted of murder but convicted of manslaughter. The basis of that could theoretically have been provocation but it was much more likely to be unlawful act manslaughter and that sensibly was the basis which the judge assumed when passing sentence. 8. The defendant was not mentally ill at the time of this offence. However, whilst on remand he developed a paranoid psychosis and he was transferred to Broadmoor Hospital by the Ministry of Justice in September 2010, that is about four months after his arrest and nine months after the offence. He was ill but fit to be tried in the Crown Court and he was fit to give and did give evidence in his own defence. However, he remained ill and he needed to be in hospital rather than in ordinary custody. 9. There were some differences between the psychiatrists called on either side in this case but upon the essentials of his condition they were in agreement. The likely diagnosis is paranoid schizophrenia. It has involved at different stages the hearing of voices, expressions of grandiosity, irrational and delusional beliefs and thought disorder. There are also clear signs in this defendant, so the psychiatrists advise, of anti-social trends properly labelled in a person of his age "conduct disorder" rather than yet an established personality disorder. He is too young for that diagnosis yet to be made in the terms of ordinary medical advice. 10. The paranoid schizophrenia has, as is quite often the case, responded reasonably well to medication, particularly in the secure and skilled environment of Broadmoor. The defendant needs to continue to take medication for a prolonged period; the suggestion is at least 5 years. He is conforming with the medical regime, although there are some signs of him having wishes to reduce the dose, which would not be advisable. The psychiatrist from Broadmoor, who was his treating superintendent, advised the judge that the defendant is likely to need something like four further years of treatment in Broadmoor and thereafter something like two years in the halfway house environment of a medium secure unit. 11. The judge determined that but for the medical condition he would have imposed a sentence based upon the appropriate determinate term being 12 years. However, the judge was perfectly satisfied, for extremely good reason, that the defendant was dangerous within the meaning of Part 12 Chapter 5 of the Criminal Justice Act 2003 . Accordingly, if he was to pass a conventional custodial sentence the right form of it, given the defendant's age, would have been a sentence of detention for public protection based upon a notional 12 year determinate term, thus expressed as detention for public protection (that is to say indefinitely) with a minimum term of six years, to which time in custody on remand would count. 12. However, Dr Church, the treating psychiatrist from Broadmoor, recommended rather a hospital order under section 37 of the Mental Health Act coupled with a restriction order under section 41. Conversely, Dr Johns (advising the Crown) suggested that in his view the appropriate sentence was a custodial sentence, although he recognised that for the kind of time period that Dr Church had mentioned such a sentence would be served in Broadmoor or subsequently a medium secure unit. That would be achieved, if that course were taken, by the Secretary of State directing his transfer under the provisions of section 47 of the Mental Health Act. Accordingly, either way, the immediate plan was necessarily for the treatment which he needs and which he is receiving to continue. 13. Faced with those two rival forms of advice, the judge in the end made a hospital order with a restriction order. It is abundantly clear from the transcript of his very careful enquiries into this question that his primary concern in making the order that he did was to achieve continuity of treatment at Broadmoor. He knew that if he made an order for detention for public protection, whilst there would almost certainly follow a section 47 transfer order, there would be a hiatus, during which the defendant's treatment in Broadmoor would be interrupted because the existing basis for it would have been removed by the passing of such a sentence. How long it might be he did not know. The judge had, if we may say so extremely sensibly, suggested at an earlier stage of the case that it would be wise for the prison authorities to have available a transfer order in advance. Apparently there had been such an advance transfer order in existence at the time of verdict and if the conviction had been of murder then of course the defendant would have been sentenced that day to the mandatory sentence of life imprisonment and the transfer order for which the Ministry had made arrangements could have taken effect immediately. Had that happened, he could have continued at Broadmoor without any hiatus or interruption. Since, however, he was convicted of manslaughter the question of his sentence had to be adjourned for consideration and nobody had brought an advance transfer order to the adjourned hearing. That was the reason why the judge was persuaded in the end that in order to avoid the hiatus he ought to make a hospital order rather than pass a sentence of detention for public protection. 14. This very experienced judge has considerable knowledge of the Parole Board system. He took a good deal of trouble to investigate of his own motion whether there would be a significant difference between the two possible forms of order as to the time that the defendant would be compulsorily detained. He concluded that the time for which he would compulsorily be detained would be much the same under each of the two forms of order. It is enough to say that he may very well have been right about that. Under a sentence of detention for public protection with a minimum term of six years he would be compulsorily detained for about a further five years (because he had served about a year on remand). After that he would be released as and when he was safe. Dr Church's prediction for his likely progress if a hospital order was made assumed something like four years in Broadmoor and two years in a medium secure unit, that is to say much the same sort of period. 15. It was having made those investigations that the judge concluded that he should make a hospital order because that would avoid a highly regrettable disruption or hiatus in the treatment at Broadmoor which appeared to be being successful. He rightly concluded that such a disruption was in nobody's interests. It was not in the defendant's interests but much more importantly it was not in the public's interest that his apparent recovery should be put in jeopardy. 16. We admire the efforts which the judge made to achieve both the treatment of the defendant and his punishment and, crucially, safety for the public. The difficulty however is that the enquiries made into the time of likely compulsory detention is only part of the story. A different part of the story was not addressed at all by either side and unsurprisingly therefore not by the judge. 17. It is true that the detention for public protection regime and the section 37/41 hospital order regime have features in common. Under both regimes discharge on release is discretionary and in the hands of the Secretary of State, that is to say the Ministry of Justice. In both cases regard is had in making the discretionary decision whether or not to release to danger. In neither case is there any absolute right to release. Secondly, release under both regimes is conditional and the defendant is subject to recall. That said, there is an absolutely crucial difference between the two forms of regime. Under an order for detention for public protection release is dependent upon the responsible authority being satisfied that the defendant is no longer a danger to the public for any reason and principally not at risk of relapsing into dangerous crime. Under the hospital order regime release is dependent upon the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition. Similarly, and critically, release under the detention for public protection regime is on licence and the licence can be revoked if the defendant shows that he remains a danger to the public from crime. It is possible and indeed inevitable that the licence conditions will be designed, among other things, to prevent association with dangerous criminals. Under the hospital order regime, recall is available but only if the defendant's medical condition relapses. Simple crime does not trigger a recall under the hospital order regime. 18. We need not set out the law relating to that because it is common ground. The clearest expression of it, among a number of cases, is to be found in R v Drew [2003] 1 WLR 1213 , [2003] UKHL 25 in the speech of Lord Bingham at paragraph 21. 19. In this case we hope of course that the defendant will both recover from his illness and reform his hitherto criminal way of life. But his discharge under the present order will be governed by recovery from illness but not reform and his liability to recall will be triggered by medical relapse but not by criminal relapse. There exists, given the lifestyle that he was living at the time of this offence, the plainest possible risk, although we hope it does not eventuate, that he may resume a criminal lifestyle. It is essential that there is available to the authorities the power to recall him if that were to happen. We hope it will not, but the power simply has to be there. 20. Mr Ryder QC on his behalf, to whom we are extremely indebted for his careful submissions, advances a number of reasons why nonetheless the order that the judge made should be maintained. First, he contends that the best hope for the future and the greatest public interest lies in this defendant's recovery and proper treatment. We agree. But he is going to have the same treatment under either form of order. Secondly, says Mr Ryder, if a detention for public protection order is made their exists the risk that he may find himself in conventional custody and that the influences that he is likely there to meet may foster the incipient conduct disorder or anti-social personality traits which would be very much against the public interest. We agree that those risks present a possible scenario. We propose to do what we can to avoid any possibility that there would be an immediate hiatus during which he has to go into conventional custody. If it is right that he can expect something like six years in medical care, then if at the end of that time he is safe he ought to be released. But in the last resort if there exists a tension between the risk which Mr Ryder has identified on the one hand and a complete absence of control on licence on the other, we fear that the risk has to be taken in order to achieve the licence control. Thirdly, Mr Ryder draws attention to the evidence given by Dr Church before the judge to the effect that in his experience the intensity of management which is available to psychiatrists at the time of conditional release and planned transfer to the community under the rubric of a hospital order is generally greater than that available to the Probation Service and the National Offender Management Scheme under indeterminate sentences. We do not know but it is always possible that that is a realistic assessment. The psychiatric authorities have a good deal fewer people to deal with for one thing. But whilst that may be true, the intensity of supervision is no substitute for the test for release and the test for recall to which the supervision has to be directed. Lastly, Mr Ryder pointed out that were the defendant to be released and to commit a fresh offence it is at least likely that there would be sufficient possibility in the minds of the supervising psychiatric team that there had been a mental health relapse for there to be a recall, if only for investigation, in any event. That may or may not be so, but they would not be able to keep him unless there had been a medical relapse. 21. We conclude that the decision made in this case in the most careful terms by this very experienced judge simply left out, because nobody explained it to him, the vital consideration which we have endeavoured to set out. Once one applies one's mind to that consideration there is only one possible answer. 22. We ought to add this. The differences between the two forms of order were one reason for the insertion into the Mental Health Act of section 45A. That section gives the court the power to pass a sentence of imprisonment and rather than wait for the Ministry to make a transfer order to hospital, itself to make a direction for hospital treatment together with a limitation direction which is the equivalent of a restriction order. That power, if available, would have met this case perfectly. Under it, a defendant is subject to imprisonment but he goes immediately to hospital which is where he needs to be and he remains there for as long as his medical condition requires it. However, the section enables this new form of order to be made only where the sentence is one of imprisonment. For an offender under the age of 21 imprisonment is not available. We are bound to say that we have not discerned any reasoned or logical distinction between offenders of 18, 19 and 20 and those of 21 and above which would suggest a deliberate decision to exclude the younger patients from its terms. It may be that the reason why the section is couched in terms of imprisonment is that when it was drafted it was anticipated that not long in the future imprisonment would be extended to all from the age of 18 onwards, but that, as everybody knows, has not happened. We would respectfully suggest that those who have the supervision of this legislation should at the very least consider whether there is any reason at all why patients of 18, 19 or 20 should be excluded from the public protection which an order of this kind can give. 23. We agree with the judge that interruption to the current period of treatment at Broadmoor is highly undesirable for all the reasons which we have tried to explain. We propose for that reason to adjourn this hearing now until Thursday 20th October, when we will return to it. We express the hope that by then it will be possible to tell us that arrangements are in place for this man to be transferred immediately under section 47 to Broadmoor, so that if, as we anticipate, the sentence is converted into one of detention for public protection he will go straight back from this court to Broadmoor. We do not of course control the decision about a transfer order. We can do no more than hope, but we make it clear that the combined opinion of both psychiatrists is that without doubt it is essential that there is no interruption, however short, in this man's treatment at Broadmoor. 24. Lastly, the Solicitor General takes a second point that the notional determinate term of 12 years was itself unduly lenient. It ought, he submits, to have been 15 years. There is no basis for saying that the difference between those two figures creates a sentence which comes anywhere near the test of undue leniency applied on a reference by the Attorney General. There is no gross error of any kind and in any event under an order for detention for public protection the notional determinate term governs only eligibility for consideration of release; it does not give an entitlement to release. The judge was perfectly entitled to take the view that at the age that this man was 12 years was the appropriate notional determinate term. We are unimpressed accordingly by the second ground of the application. 25. In those circumstances, we make no order at this stage other than to adjourn the case to be relisted before this court please for five minutes on Thursday 20th October. There is no occasion for leading counsel to attend unless they want to. Indeed, if there is in place an assurance of the kind which we would like to hope that there might be, there is no reason for anybody to attend if we have it in writing. Otherwise somebody from the Crown must come please to tell us what the position is. 26. MR BROWN: My Lord, the information I am in possession of now tells me at least that my Lord will not need to wait until 20th October. Indeed later today it would be in place. I do not know whether either way-- 27. THE VICE PRESIDENT: At the moment we will say that we will adjourn it until Thursday 20th unless later today we are told that we need not and again the same applies later today, if you are in a position to help at that stage or if somebody behind you is, there is no need please for leading counsel to wait. Thank you very much both of you for your help. Later: 28. MR BROWN: My Lord, in fact all was in place. Nobody, as it were, in charge of these things should be criticised. It is my fault for not knowing that was the position. They are well aware of the case, but I am told that the transfer order under section 47 needs something to bite upon. It needs to be transferred from something and what will happen, as I understand it, is that as soon as sentence is passed here your clerk will draw up the order, that can be faxed ultimately to the Mental Health Unit at the Ministry of Justice, the paperwork in respect of section 47 has already been completed, it is in place, they need to be satisfied that they are asking for a transfer to be made from something and the Secretary of State has agreed and indeed the medical reports are here now with us and so everything is in place but it needs something to bite upon. We would ask the court to pass sentence with the full expectation today that he can be transferred and taken to Broadmoor and those waiting to transport him are downstairs. 29. THE VICE PRESIDENT: So he will go straight back to Broadmoor. 30. MR BROWN: That is the intention. 31. THE VICE PRESIDENT: What is the formality, Mr Brown? I will ask Mr Ryder in a moment, but there is time in custody which has to be specified, does it not? Do you have the figure? It is about a year. We know the date of his arrest which was 27th May and sentence was passed on 15th June the following year. ... Somebody has done the arithmetic. Shall we say 382 days with the customary caveat that if it should turn out to be different it can be dealt with administratively. 32. Mr Ryder, subject to the point of principle which we have already decided, do you agree that this is the right course now. 33. MR RYDER: My Lord, yes, certainly. 34. THE VICE PRESIDENT: Thank you very much indeed. 35. For the reasons which we set out at a little length earlier this morning, we quash the sentence of hospital order and section 41 order, we substitute for it on each count concurrent a sentence of detention for public protection with a minimum term of six years less 382 days already served. If further calculation should show that that figure is wrong by a few days the correction should be made administratively. Is that sufficient, Mr Brown. 36. MR BROWN: Yes. 37. THE VICE PRESIDENT: Thank you all very much.

2011_10_06-2828.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2276/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2276

3b750720d0a2e42a670d9e4fc13118423e76ca8ef199e88c7402f4ccf1a97205

[2016] EWCA Crim 360

EWCA_Crim_360

crown_court

Neutral Citation Number: [2016] EWCA Crim 360 No: 201600077 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 17th March 2016 B e f o r e : LORD JUSTICE GROSS MR JUSTICE SUPPERSTONE HIS HONOUR JUDGE FARRER QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v BEAU ANTHONY HODGKINS - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph notes o

Neutral Citation Number: [2016] EWCA Crim 360 No: 201600077 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 17th March 2016 B e f o r e : LORD JUSTICE GROSS MR JUSTICE SUPPERSTONE HIS HONOUR JUDGE FARRER QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v BEAU ANTHONY HODGKINS - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph notes of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss A Parnham appeared on behalf of the Appellant The Crown was not present and was unrepresented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. JUDGE FARRER: On 7th December 2015 the appellant was sentenced by His Honour Judge Batty QC in the Crown Court at York to a total of 21 months' imprisonment. That sentence was made up of 20 months' imprisonment for an offence of going equipped for burglary and theft and a consecutive sentence of one month for an offence of criminal damage. An appropriate victim surcharge order and criminal courts charge were applied. 2. The appellant pleaded guilty to the offence of going equipped approximately one month before trial and now appeals against that aspect of his sentence by leave of the single judge. 3. The facts of the offences are as follows. At 9.15 pm on the evening of Tuesday 16th June 2015, the police were phoned by a member of the public who was concerned about people acting suspiciously on a railway bridge in Scarborough. The police attended and found the defendant, who was searched under the Misuse of Drugs Act. No drugs were found, but he was in possession of items including a pair of bolt croppers, Marigold gloves, a Father Christmas face mask and a camouflage hat. In interview, the appellant claimed that the bolt croppers were to be used to retrieve a bicycle and the gloves were to be used in a sexual encounter. He claimed that the mask had been given to him and that he wore the hat to disguise his baldness. 4. He was bailed but re-arrested on an unrelated matter on 23rd July 2015. Following arrest, he caused damage to a police cell by drawing on the wall. In relation to that matter of criminal damage no complaint is made about the sentence of one month's imprisonment consecutive to that imposed for going equipped. 5. At the time of sentence the appellant was 28 and had been convicted of 12 offences on six occasions. Those offences included travelling on the railway without payment of fare, shoplifting and a robbery for which he received four years' imprisonment. Those three offences were all committed in 2011 and he had been out of trouble for the approximately four years that followed. 6. In his sentencing remarks, the learned judge indicated that he was prepared to give the appellant a one-sixth discount for his guilty plea. No complaint is made about that aspect of the sentence. 7. The learned judge then indicated that in his view the facts here dictated the conclusion that this was a case of going equipped for burglary, and following a trial the appropriate sentence would have been one of two years imprisonment. Giving the discount to which he referred, that produced the sentence to 20 months. 8. In the grounds of appeal which have been helpfully elaborated upon before us today by Miss Parnham, it is submitted that the sentence of 20 months imprisonment imposed for the offence of going equipped was manifestly excessive. 9. In the grounds of appeal, and briefly today, we were invited to refer to the definitive guideline relating to offences for going equipped, which came into force in relation to offenders sentenced after 1st February 2016. It follows that this guideline was not in force at the time of sentence. In the case of Boakye & others [2012] EWCA Crim 838 , this court indicated that where guidelines were expressly stated to apply from a certain date, then they could not be said to affect a sentencing practice prior to that date. In these circumstances we take the view that it is not helpful to refer to that guideline. 10. Miss Parnham submits before us today that the sentencing judge was wrong to conclude that the appellant was in possession of the items found with the intention of going equipped for burglary. We disagree. The judge indicated that what was planned was an offence of burglary at least . We take that to mean that in his view this collection of items was consistent only with burglary or a more serious offence, namely robbery. In our judgment, this experienced judge was entitled to draw that inference. Whilst considered individually the items recovered might lend themselves to some lesser offence, when considered cumulatively it is difficult to conceive of their use in other than burglary or robbery; certainly the possession of the mask and hat suggest that the intended offence involved the need for disguise, and therefore the contemplation of potential contact with others. 11. In the grounds of appeal Miss Parnham submits that, even in those circumstances, a starting point of two years cannot be justified. In support of that proposition she sought to rely upon the case of Shariff [2012] EWCA Crim 768 . In that case a 18-year-old man of good character was arrested at 2 o'clock in the morning in possession of a glass hammer and a torch. He had earlier been observed looking through the window of student accommodation. He was convicted after trial and given a 12 month suspended sentence. This court reduced that sentence to one of six months suspended for two years. The submission made in the grounds of appeal is that Shariff is a broadly comparable case and demonstrates that the present sentence was manifestly excessive. 12. We cannot accept that submission. Shariff is not a guideline case and is therefore of limited assistance. In any event, we note that the sentence for Shariff was reduced because of his age, good character and because he had spent some 119 days on curfew awaiting sentence. That period could not be ordered to count towards the suspended sentence and therefore some discount had to be made to reflect it. 13. In our judgment, the appellant's case is considerably more serious. This appellant was in possession of a face mask and hat. He was plainly contemplating an offence involving at least the possibility of contact with an innocent third party. Furthermore, he had not been subject to a lengthy curfew which would not otherwise count towards his sentence. In addition, he has relevant previous conviction and was on licence at the time of his arrest, albeit we do not lose sight of the fact that he had been out of trouble for some years prior to the present offence. 14. In our judgment, the learned judge was entitled to conclude that this was a serious example of going equipped. In these circumstances we conclude that, whilst this sentence was severe, it was not outside the range available to the judge. This appeal is accordingly dismissed.

2016_03_17-3726.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/360/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/360

7cf1ae72c081856f38b1149b0604a24ed540e7346ef806eb83b74b6c18ad0a05

[2004] EWCA Crim 1664

EWCA_Crim_1664

crown_court

Case No: 0306753 A1 Neutral Citation Number: [2004] EWCA Crim 1664 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Thursday 20 th May 2004 Before : Lord Justice Rose Mr Justice Grigson Mr Justice Andrew Smith - - - - - - - - - - - - - - - - - - - - - Before : Regina - v - Jonathan Richard Collard - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020

Case No: 0306753 A1 Neutral Citation Number: [2004] EWCA Crim 1664 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Thursday 20 th May 2004 Before : Lord Justice Rose Mr Justice Grigson Mr Justice Andrew Smith - - - - - - - - - - - - - - - - - - - - - Before : Regina - v - Jonathan Richard Collard - - - - - - - - - - - - - - - - - - - - - (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 S Throne appeared on behalf of the APPELLANT Mr R Cherrill appeared on behalf of the CROWN - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Grigson : 1. On the 10 th October 2003 at the Crown Court at Lewes this Appellant pleaded guilty to 7 counts of making indecent photographs or psuedo photographs of children (1 – 7) and to 16 counts of possession of indecent photographs or psuedo photographs of children (8 – 24). 2. On the 4 th November at the same Court H.H.J. Brown sentenced the Applicant on Counts 1 – 7 to one years imprisonment on each count. On counts 8 – 24 two years imprisonment on each count. All sentences to be served concurrently. 3. 5284 similar offences were taken into consideration. 4. No appeal is made against those sentences. 5. The Judge also made a restraining order under Section 5A of the Sex Offenders Act 1997 . The Appellant was ordered to register under the Sex Offenders Act 1997 and disqualified from working with children under Section 28 Criminal Justice and Court Services Act 2000 . 6. It is against the restraining order that leave to appeal was granted. The Appeal came before the Full Court on the 27 th February 2004 and the hearing was adjourned as there was an apparent conflict between two decisions in this Court. R v Halloren [1004] EWCA Crim 233 and R v Beaney [2004] EWCA Crim 449 . 7. The terms of the Restraining Order imposed by H.H.J. Brown were as follows: “that you be prohibited from owning, using, possessing or having any access to any personal computer, laptop computer or any other equipment capable of downloading any material from the Internet. That prohibition does not apply to any such equipment which you have and use for the purpose of any lawful employment at and only at a place of such employment.” 8. The Judge ordered that the Appellant register under the Sexual Offenders Act for a period of 10 years and that the disqualification from working with children last indefinitely. 9. These Orders were made in respect of each offence. In fact Section 5A only came into force on the 2 nd May 2001 and so was only available on counts 8 – 24. The Order made on counts 1 – 7 must therefore be quashed. 10. Section 5A of the Sex Offenders Act 1997 reads: “(i) This section applies when – a) the Crown Court or Court of Appeal imposes a sentence of imprisonment or makes a hospital or guardianship order, in respect of a person convicted of a sexual offence to which this Part applies. b) The Crown Court or the Court of Appeal orders that a person who has been found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such an offence, be admitted to hospital or make a guardianship order in respect of him. c) a Youth Court makes a Detention and Training Order for a term of twelve months or more or a hospital or guardianship order in respect of a person convicted of such an offence. d. a Youth Court makes a hospital or guardianship order in respect of a person who has been found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such offences. 2) The Court may make an order under this Section in respect of the person (“the offender”) if it is satisfied that it is necessary to do so in order to protect the public in general or any particular members of the public, from serious harm from him. 3) The order may prohibit the offender from doing anything described in the order. 4) The order shall have effect for the period specified in it or until further order; and the offender shall not cease to be subject to the notification requirements of this Part while the order has effect. 8) If without reasonable excuse the offender does anything which he is prohibited from doing by an order under this section, he is guilty of an offence. 9) A person guilty of an offence under this section is liable – a) On conviction an indictment to imprisonment for a term not exceeding five years or a fine or both. b) on summary conviction. To imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.” 11. The effect of Section 5A (4) is to make the requirement to register co-terminus with the period of prohibition when the period of prohibition is longer than the requirement to register. It also provides that the Court can specify the length of the period of prohibition. If the Court does not specify the period, then the order continues indefinitely unless and until the Court orders otherwise under subsection (7). “On the application, the Court may, after hearing the Applicant and the other persons mentioned in subsection (6) above (if they so wish) make any order under this section varying or discharging the previous order which the Court considers appropriate.” 12. Subsection 6 sets out who may make the application to the Court. In this case, no period was specified for the prohibition so that it continues unless discharged on application. The requirement to register would continue indefinitely unless the Court discharged the order of prohibition within the 10 year period. It can be seen immediately that this section gives the Court very wide powers indeed, and that breach of the order may result in substantial punishment. 13. In the R v Halloren (Ref) H.H.J. Broderick, giving the judgement of the Court, analysed the section in this way: 1) that the Court had a discretion as to whether to exercise its power to make a restraining order. 2) that before the Court can exercise its discretion it must be satisfied that it is necessary to do so in order to protect the public in general or any particular members of the public, from serious harm from him (the offender). The Court explained that ‘necessary’ was a higher qualifying test than, for example, ‘desirable’. 3) that there must be material upon which the Judge can reach the conclusion that such an order is necessary in order to protect the public from serious harm. 4): that ‘serious harm’ had the same meaning as appears in subsection (4) of Section 161 of the Powers of Criminal Courts (Sentencing) Act 2000 , namely “In this Act any reference, in relation to an offender convicted of a violent or sexual offence, to protecting the public from serious harm from him……….shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.” 14. To summarise the position: the Court may make a restraining order if there is material which satisfies the Court that it is necessary to make the order (in the terms that it was made) for the protection of the public or particular members of the public from death or serious personal injury, whether physical or psychological caused by further offences committed by the offender. 15. H.H.J.Broderick added “…….where the Crown invite a judge to make an order of this nature, it seems to us that it is incumbent upon them to be familiar with the necessary statutory provisions and to be in a position to put before the judge the material which shows that those statutory provisions have been met.” With those sentiments we entirely agree. 16. The Court in Halloren’s case having considered the evidence concluded that there was no material which could have satisfied the trial judge that it was necessary to make a prohibition order. 17. In R v Beaney the Court was referred to the judgement in Halloren and did not dissent from the basic propositions advanced in that case. But they analysed the evidence before the sentencing Judge in this way a) that in cases of this sort the members of the public at risk of serious psychological harm were the children who ‘are forced to pose or worse to participate in sexual conduct, for the purpose of enabling these images to be produced and disseminated’. b) that such children were subjected to risk from ‘people like the applicant who simply downloaded the images and viewed them’. 18. Mr Justice Keith, giving the judgement of the Court said: “If people like the Applicant continue to download and view images of this kind, even when they have not had to pay for the images downloaded, the offences which they commit can properly be said to contribute to the psychological harm which the children in those images would suffer by the children’s awareness that there were people out there getting a perverted thrill from watching them forced to pose and behave in this way.” 19. If the logic of the Court in R v Beaney is correct then, potentially every person convicted of this sort of offence qualifies for a restraining order under Section 5A . 20. We have no doubt that the reasoning is correct. The reasoning behind both the legislation and sentencing policy is that participation in indecent or pornographic activities damages children and that by downloading such material from the internet offenders contribute to such damage. 21. However, it does not follow that the Court will be satisfied that it is necessary to make a restraining order in every case. That is only one part of the test the Court must apply. 22. The Court should consider a) the offences: the number of offences, their duration, the nature of the material, the extent of publication and the use to which the material was put. b) the offender: his antecedents, his personal circumstances and the risk of re-offending. 23. Where the Court is satisfied that i) there is a real risk of the offender committing further offences and ii) that the further offences will cause serious harm to children, then it will be necessary to make a restraining order. 24. Where the Court makes a restraining order, its terms must be tailored to meet the danger that the offender presents. It must not be oppressive, it must be proportionate. The Court is well aware of the ever increasing legitimate use of the internet. More and more people use the internet as a source of news, information and entertainment. All sorts of products are advertised on line; and can be purchased on line. Employment may require use of the internet at home as well as in the workplace. The internet is used as a legitimate tool by both adults and children. A wide prohibition on an offender might have the effect of depriving his wife and children of the benefit of legitimate use of the internet. 25. This Appellant was employed as a teacher and had been for 26 years. He was arrested on the 17 th December 2002 and a search warrant executed at his house. His computer was seized and numerous indecent images of children were found. Counts 1 – 7 related to legitimately taken photographs of female pupils which the Appellant had altered. Counts 8 – 24 related to images at Levels 4 and 5 which he had downloaded from the internet. The offences taken into consideration related mainly to images at Level 1 but there were 261 images at Level 4 and 17 at Level 5. In interview, the Appellant admitted all his offences and the offences. The offences started in 1984 and continued until his arrest. 26. Miss Thorne, Counsel for the Appellant, makes three submissions. The first is that there was no material before the judge upon which he could decide that this appellant qualified for a restraining order. Mr. Cherrill, who appears on behalf of the Crown, submits that the court was entitled to reach that conclusion simply by looking at the nature of the material, the extent and duration of the offending and the occupation of the appellant. Mr. Cherrill submits that the Court is entitled to look at the facts in relation to the first seven counts in making the judgment as to whether a restraining order should be imposed. 27. We are satisfied that Mr. Cherrill’s submission is correct. The nature and extent of the material, the period of the offences and his occupation clearly qualified this appellant for a restraining order. Miss Thorne goes on to submit that the period of the restraining order, that is that it was made indefinitely was manifestly excessive. Again, Mr. Cherrill points to the nature of the material itself, the depth of what he describes as the appellant’s addiction or obsession and the fact that there was no material before the court indicating when this particular appellant’s proclivities might cease. 28. We bear in mid that the appellant can apply to discharge this order at any time. Keeping that in mind, we are satisfied that Mr. Cherrill’s submission as to the appropriateness of the order being indefinite is correct and that the proper order as to duration was made. 29. Miss Thorne’s last submission is that the terms of the order are too wide. Again, Mr. Cherrill argues otherwise. But we are satisfied that the terms of the order here are in fact too wide and must be curtailed. The prohibition in the order was Draconian. In our view, it would have been sufficient if the order had been in these terms: “that you be prohibited from downloading any material from the Internet, that prohibition not applying to downloading for the purpose of any lawful employment or lawful study.” 30. The appeal is allowed to this extent. The Restraining Order on Counts 1 – 7 be quashed. The Restraining Order on Counts 8 - 24 be varied as above.

2004_05_20-240.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1664/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1664

af45d1325bb703e1af8194e257e24cbb654c2fab6a8994b0f6d7cabf8261db44

[2008] EWCA Crim 2498

EWCA_Crim_2498

crown_court

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 Mer

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. _______________________

2008_10_08-1660.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2498/data.xml

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[2023] EWCA Crim 1149

EWCA_Crim_1149

crown_court

Neutral Citation Number: [2023] EWCA CRIM 1149 Case No: 202203602 B1 202203643 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 October 2023 Before: LADY JUSTICE SIMLER MRS JUSTICE MAY and MRS JUSTICE STACEY REX - V- MOEEZ BANGASH and JONATHAN MAKENGO - - - - - - - - - - - - - - - - - - - - - Tyrone Smith KC appeared on behalf of BANGASH Jane Bickerstaff KC and Sachin Rajput appeared on behalf of MAKENGO Hugh Davies KC and Louise Oakley appe

Neutral Citation Number: [2023] EWCA CRIM 1149 Case No: 202203602 B1 202203643 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 October 2023 Before: LADY JUSTICE SIMLER MRS JUSTICE MAY and MRS JUSTICE STACEY REX - V- MOEEZ BANGASH and JONATHAN MAKENGO - - - - - - - - - - - - - - - - - - - - - Tyrone Smith KC appeared on behalf of BANGASH Jane Bickerstaff KC and Sachin Rajput appeared on behalf of MAKENGO Hugh Davies KC and Louise Oakley appeared on behalf of the Crown JUDGMENT LADY JUSTICE SIMLER : Introduction 1. These are appeals against sentence by leave of the single judge. 2. Following a seven-week trial at the Central Criminal Court before Her Honour Judge Durran and a jury that concluded on 7 July 2022, Makengo (then aged 25) and Bangash (then aged 26) were both acquitted of murder but convicted of manslaughter in the circumstances described below. 3. On 14 November 2022 the appellants, together with others convicted in the same trial, were sentenced. For manslaughter, Makengo was sentenced to an extended sentence of 21 years’ imprisonment pursuant to section 279 of the Sentencing Act 2020 comprising a custodial term of 16 years and an extension period of five years, and Bangash was sentenced to imprisonment for life with the period of 14 years (less 765 days spent in custody on remand) specified as the minimum term under section 322 of the Sentencing Act 2020 . 4. A co-defendant in the same trial, Tyler Moore, was convicted of murder and sentenced to imprisonment for life with a minimum term of 20 years (less 765 days spent in custody on remand) specified under section 322 of the Sentencing Act 2020 . Because of the Covid-19 restrictions in force at the time, five other defendants were tried separately at an earlier trial between August and October 2021 before Her Honour Judge Joseph KC at the Central Criminal Court. Four of those were convicted of murder (Shariq Khan, Hassan Riaz, London Beqa and Omari Thompson) and one (Ihnsanullah Aman) was acquitted of both murder and manslaughter. Summary of the facts 5. This was a joint enterprise killing of Mohammed Usman Mirza, then aged 19. On 19 November 2019 he was killed in a pre-planned revenge attack by friends or associates of Atiq Rahemi. Rahemi, together with another man, was shot at point blank range in the early hours of 28 September 2019 by a group of masked men. Mirza was a suspect in the attempted murder of Rahemi and was wanted by police for questioning. It was suggested that the intended target of the attack on Rahemi was Bangash, and he received a threat of life warning from the police after the shooting. 6. The detailed circumstances leading to the attack on Mirza and the attack itself are fully and clearly summarised by the judge in her careful sentencing remarks. For present purposes it is sufficient to provide the following summary. 7. The prosecution case was that Mirza considered Shariq Khan (also known as “Tyga”) and Bangash as his friends. However, Khan and Bangash were also friends or associates of Rahemi. In the weeks leading up to the fatal attack (between 5 October and 18 November), several cars were stolen to be used to drive participants to the scene of the planned attack. A black Ford Kuga was stolen between 14 and 15 November. The cars were also used to complete reconnaissance of sites later used to dispose of the cars. Immediately after the attack, two of the stolen cars (a red Peugeot and a white Captiva) were set on fire and telephone calls were made summoning assistance to take participants away from the burning cars. Petrol cans had been filled earlier in the day to use to accelerate the destruction of the cars. Telephones were used to make decoy calls designed to make it look as if their owners were elsewhere at the time the attack took place. 8. Khan had arranged to meet Mirza on 19 November on the pretext of the two committing a robbery together. At 10 pm that evening, Mirza met Khan in the stolen red Peugeot at Burnside Road. They drove to a garage area near Owen Waters House and were followed by the stolen white Chevrolet Captiva, arriving soon after 10.15 pm. A group ambushed Mirza. They followed him up an alleyway towards Owen Waters House. He was fatally stabbed many times with bladed weapons and finally collapsed in front of Owen Waters House. He made a dying declaration to a witness and his cousin (Isfahan Khan) that Tyga from Ilford had set him up and stabbed him. He was pronounced dead at 11.53pm that evening. 9. It was alleged that Moore, Khan, Riaz and Thompson were the people who stabbed Mirza or were present at the scene when he was stabbed. Makengo, Bangash, Beqa and Aman were not alleged to be present at the scene but were said to have been involved in the planning, organisation and implementation of the murder. After the attack some of the men were seen on CCTV meeting at a Domino’s Pizza in Elm Park. Moore, Makengo, Bangash and others then travelled to a massage parlour in Swiss Cottage, which had been booked by Bangash. These meetings were characterised as a post-murder debrief. Cell site evidence showed them travelling from Swiss Cottage back to Ilford in the early hours of 20 November 2019. 10. The roles of Makengo and Bangash were clearly set out by the judge in the course of her detailed sentencing remarks. We shall return to these below. 11. In summary, Makengo was involved in the theft of three of the stolen vehicles on a number of days prior to the attack and had control of the Ford Kuga after it was stolen. His phone and the car were linked to the reconnaissance of the site used for the destruction of the White Captiva (in Express Drive). He also remained in telephone contact with other accused throughout the evening. Later he drove Moore, Bangash and Thompson from Ilford to Swiss Cottage and back, for the debrief at the massage parlour. He was stopped by police in the Ford Kuga on 29 November. An examination of clothing from the burnt-out Captiva car found DNA linked to him. 12. In police interview Makengo gave an account stating he had no knowledge of Mirza or the attack. On the date in question he had been with others unconnected with the murder. During a re-interview he provided a prepared statement, again denying participation and answered no comment to questions. 13. Makengo gave evidence at trial and maintained his denial of any involvement in the plan to attack Mirza, who was not known to him. The phone contact he had with some of the defendants, who mostly lived in the same area as him, was in relation to supplying drugs on a social basis. He did not know Beqa or Aman. He denied any knowledge of the offences leading to Mirza’s death, including the theft of cars. He accepted trying to create a false alibi and lying in police interview, but said that he had panicked given the seriousness of the allegation and wished to distance himself from the other accused. He did not wish to admit to criminal behaviour (drug supply and driving whilst disqualified). He acquired the Ford Kuga from Riaz to cover a drug debt. He accepted driving Bangash and Thompson to the massage parlour, but not Moore. His DNA may have been present as a result of secondary transfer from a bag of drugs or something similar. 14. Bangash was considered by Mirza to be a friend but was in reality a double agent with ties to Rahemi. He exploited his connections with Mirza to assist, alongside Khan, with coordinating Mirza’s arrival at the scene of the attack. At just before 5pm on 19 November, he arranged the booking of the massage parlour in Swiss Cottage, later used for the debrief. He made calls to Mirza right up to the minutes before his death. At around this time, Bangash called others, including Makengo at 10.17 pm, to update them in accordance with the alleged plan. At 10.20 pm, as he was dying, Mirza called his cousin stating that he had been stabbed and that Tyga had set him up. At 10.21 pm, the cousin called Bangash and they subsequently met. The cousin believed that Bangash would help him find Mirza. Bangash made further calls to the massage parlour, later travelling there with Moore, Makengo and Thompson, to meet other accused at 12.30 am. At 2.40 am Bangash was still in contact with Mirza’s cousin. 15. Bangash told police initially that he last saw Mirza five days earlier and that there had been limited communication between them. In police interview he answered no comment to questions asked of him. 16. He did not give evidence at trial. The sentences 17. Both appellants were sentenced without pre-sentence reports, and we make clear at this stage that no report was then or is now necessary in either case. 18. Manslaughter is an offence listed in schedule 19 of the Sentencing Act 2020 . Both men were over 21 on conviction and the offences were committed after 4 April 2005. Section 285 of the Sentencing Act 2020 was therefore potentially engaged in both of their cases, and the question whether life sentences should be imposed had to be considered. That in turn meant consideration and determination of the question whether the offender in question posed a significant risk to members of the public of serious harm occasioned by the commission of further specified offences. Thus, a discretionary life sentence or an extended sentence were possible outcomes. 19. The judge made factual findings about Bangash’s role as follows: “You were involved in the planning of the offence, you connived with Mr Khan to ensure Mr Mirza was present in the Ilford area and met Mr Khan on 19 November. You had direct contact with Mr Mirza and deliberately deceived him and acted as a double agent to ensure he was present in the Ilford area, meeting with Mr Khan on 19 November. You communicated with co-defendants around the time that Mr Mirza was attacked, including with Mr Makengo, and with phones belonging to Tyler Moore and Hassan Riaz on what were their dirty mobile phone numbers. You made a booking at the massage parlour in Swiss Cottage to facilitate the debrief after Mr Mirza was attacked. I am not persuaded that the fact that you booked the massage earlier in the day has any real significance as you knew that an attack was to take place later. Immediately before Mr Mirza was attacked, you were part of a multiway call involving Mr Mirza, Mr Makengo and Mr Khan, as the red Peugeot was being driven into the garages. You were involved in the aftermath in the sense that you continued to act as aa double agent, communicating with and driving around with Isfahan Khan immediately after Mr Mirza was attacked. You travelled to Swiss Cottage with Mr Makengo, Mr Moore and Mr Thompson in a stolen vehicle, where you met up with Khan and Riaz for a debrief. Mr Smith makes representations in his helpful sentencing document in relation to your role. I accept it is not clear that you were the intended target of the attack on Mr Rahemi. I am satisfied, however, that you had oversight as to the planning in the form of stealing cars and identification of locations. I cannot be sure that you knew the mechanism of how Mr Mirza would agree to get into the car with Shariq Khan and I cannot be sure that you knew that knives would be used, but I am entirely satisfied that you were a principal figure in the planning of this attack on Mr Mirza. You were the primary link with him. You were a trusted friend of both Mr Mirza and Isfahan Khan. You made sure that others effectively did the dirty work of stealing the cars, the reccy of the sites of the attack and for the destruction of the cars. You kept yourself away and as a principal leader only you could have ensured a total arms’ length involvement for yourself. When Isfahan Khan received the final telephone call from Mohammed Mirza, you were the first person he called. You went with him to try to find Mr Mirza, knowing full well where he was and what had happened to him. The prosecution characterised your role as that of a double agent, displaying outward friendship to Mr Mirza while plotting with others to have him injured and I accept that overarching description of your role. You organised the celebration or debrief at the Swiss Cottage massage parlour.” 20. The judge made factual findings about Makengo’s role and involvement as follows: “Jonathan Makengo, you are 25 years of age. On 19 November 2019 you were 22 years of age. It is submitted by the prosecution that you should be sentenced as a trusted lieutenant of Shariq Khan, that you intended that Mr Mirza be caused harm falling just short of grievous bodily harm. You were given access to and allowed to drive a stolen Ford Kuga that was stolen overnight on 14 and 15 November. You were still driving this vehicle on 19 November and were still in possession of the vehicle on 29 November 2019 when you were arrested. You were involved in the planning of the offence and assisted in stealing vehicles. You were in communication with Mr Khan in the early hours of 19 November while Mr Khan was in the vicinity of Owen Waters House. Immediately thereafter, you were also in contact with Mr Riaz and Mr Moore. You were involved in transporting Mr Riaz and/or collecting the petrol after it had been purchased by Beqa and Aman. You were present at the reccy around Express Drive between 17.00 and 17.45 in the evening of 19 November 2019. Immediately before Mr Mirza was attacked, you were part of the multiway call involving Mr Mirza, Mr Bangash and Mr Khan as the red Peugeot was being driven into the garages. You were involved in the aftermath in that you drove Mr Bangash, Mr Moore and Mr Thompson to Swiss Cottage in the stolen Ford Kuga for the de-brief and you were driving the stolen Ford Kuga in convoy with the Vauxhall Mokka when it returned to the scene where Mr Mirza had been attacked on 20 November, with Mr Khan, Mr Riaz and Mr Moore. Mr Berry too in his helpful sentencing note disputes that you were a trusted lieutenant, that you were involved in the transportation of petrol to assist Beqa and Aman, and disputed that you were party to a multiway call involving other defendants. I am satisfied that while you were trusted by Shariq Khan, you were not a leading mind in this operation. You were acting on his instructions and carried out a number of significant tasks. I am satisfied you participated in the reccy of the attack scene, were involved in stealing cars, drove the Kuga to assist in preparation for the attack. You were involved subsequently when you returned to the scene of the attack, but like Mr Bangash and Mr Beqa, you did not attend the scene . … ” 21. In sentencing both Bangash and Makengo, the judge first dealt with culpability. The prosecution contended this was a case involving very high culpability (category A) with a starting point of 18 years and a range of 11 to 24 years in the Sentencing Council’s Manslaughter Guideline, with death caused at a time when both had an intention to cause harm falling just short of grievous bodily harm. Leading counsel for both appellants sought to persuade the judge that a lower category applied. She was, however, satisfied that a significant violent assault on Mirza was planned, falling just short of really serious bodily harm. She said she came to this view based on the significant planning, involving thefts of vehicles, their destruction, the use of dirty phones, the provision of petrol and clothing to conceal the identity and cars of those involved. There was a high risk of death given the large group attack in which Mirza was significantly outnumbered. The combination of these two features, both extreme in nature, led to her conclusion that culpability was very high in both cases. The starting point was therefore 18 years. The judge made clear, however, that she could not be sure either one knew those carrying out the attack would be armed with knives. 22. The judge found that there were aggravating features in both cases that were additional to the factors placing the case in category A of the guideline. It was a revenge attack in the context of ongoing violence between different factions; it was to be a group attack to take place in public areas at a time when others were likely to be, and were in fact, aware of and affected by it; the significant physical suffering caused to Mirza; and that neither was a person of good character. 23. In the case of Bangash, the judge found that his one conviction for an offence of violent disorder in 2015 did not significantly aggravate this offence. 24. The mitigating features in his case were his age and the positive references she had received about him. Bangash was 26 at the date of sentence and 23 years old at the time of the offence, and although the judge did not find him to be immature for his age, she recognised that some allowance should be made for this. 25. The judge then addressed the question of dangerousness in accordance with step 3 of the Sentence Council Guideline. She found that Bangash is dangerous: he was part of the planning group for a sophisticated revenge attack intending violence just short of really serious harm, albeit she could not be sure he knew those carrying out the plan would be armed. Weighing all the circumstances of the case, she concluded that this manslaughter offence was so serious that a life sentence was required. Having taken a starting point of 18 years she elevated that to 24 years to reflect the aggravating features and then reduced it to 21 years to reflect the mitigation (primarily Bangash’s youth). 26. Makengo was 22 years old at the date of the offence and 25 at sentence. He had three convictions for eight offences but none for violence. There was a psychiatric report dated 13 September 2022 from Dr Alan Reid in his case. 27. As far as mitigating features were concerned, having seen him give evidence, the judge found him to be immature for his age and said she was making a significant reduction because of his age. She said that Makengo could not be described as a leading or organising mind but there was nothing to suggest he was under any peer pressure to play his part in the planning of this enterprise. She referred to Dr Reid’s psychiatric report which detailed his difficult personal circumstances growing up. He had difficulties with his mental health. He had a promising future in sport of some kind before he was injured and then turned to a life of crime. 28. The judge was satisfied that Makengo is dangerous because he was part of the planning group for a sophisticated revenge where violence falling just short of really serious harm was to be caused. This was revenge for an attempted murder involving a firearm and he knew those carrying out the directions of others would administer group violence. 29. In Makengo’s case the judge was not satisfied that the offence was so serious that a life sentence had to be imposed, given his involvement and knowledge of the background, and bearing in mind that he worked under the direction of others. However, she was satisfied that Makengo willingly engaged in a sophisticated revenge attack on someone not apparently known to him. Further, she had regard to Dr Reid’s observations about his need to fit in and concluded that until that tendency diminished, he would pose a significant risk to the public of serious harm occasioned by the commission of further specified offences. A determinate sentence would not therefore be sufficient. Accordingly, the judge concluded that an extended sentence should be imposed. Her starting point of 18 years was elevated to 22 years to reflect the very substantial aggravating features. Bearing in mind his mitigation and how he came to be involved in criminality, she reduced that to 16 years. This was the custodial term with an extended licence period of five years. The appeals 30. There are a number of overlapping grounds of appeal against sentence common to both appeals. 31. Both Mr Smith KC and Ms Bickerstaffe KC contend that it was wrong for the judge to determine that the appellants were dangerous and to impose a discretionary life sentence in the case of Bangash and an extended sentence in the case of Makengo without inviting submissions from the Crown or defence, or at all. This question was not ventilated in writing or in oral argument. The prosecution referred to the relevant provisions but made no submissions as to their application to the facts and circumstances of this case and did not address the judge on this issue. Neither defence counsel mitigated on this basis and the judge did not indicate that she had dangerousness in mind or invite counsel to address her on this basis. The absence of submissions on this question was compounded by the lack of any independent assessment, in the form of a pre-sentence report in either case, to assist with the likelihood of re-offending and the risk posed by each appellant. 32. In any event, it was wrong in principle to conclude that either appellant was dangerous. There was an insufficient basis for these conclusions. The fact the jury could not be sure that Bangash and Makengo knew the attackers would be armed was the strongest evidence against such a finding. Given this and the jury’s verdict which meant they could not have intended to cause really serious harm, there was no material that could properly lead to a conclusion that either young man was a significant risk to members of the public of serious harm. There was nothing in the role and conduct of each appellant when properly viewed in light of the manslaughter verdicts, nor in their personal circumstances and characteristics, that afforded any basis for findings of dangerousness in either case. A determinate sentence should have been imposed in each case. 33. Furthermore, both appellants contend that culpability was wrongly categorised as A when at best the evidence in relation to each appellant was only capable of justifying category B. There was no basis for a conclusion that there were “extreme” features and nor could it be said that there was a multiplicity of category B features that raised the case to a category A offence. 34. Mr Smith submitted on behalf of Bangash that there was insufficient evidence to support the factual findings made by the judge about his role, in particular, that he had a leadership role in planning the whole enterprise, and making sure others did the dirty work for him. These were unreasonable findings and, moreover, the judge’s findings were completely at odds with the logical inferences that should have been drawn from the jury’s verdict in his case. How could it be said that Bangash had organised a knife attack if he did not know the attackers were carrying knives? If Bangash did not know this was to be a killing why would there be a need for him to organise stolen cars? Why would there be a need to obtain petrol before the incident to set the stolen cars on fire after the assault if this was merely an assault that was to fall short of causing serious harm? The fact that the jury could not be sure that Bangash knew that the attackers were carrying and would use knives was the strongest possible evidence that Bangash was not the organiser. The judge was simply wrong to find that he was the architect of this pre-planned attack. At best he ensured that a meeting would take place between Mirza and others where some harm would occur. His role was significant but not essential since Khan and Mirza knew each other and had arranged to meet that evening. 35. Ms Bickerstaffe adopted these submissions as to role and categorisation in Makengo’s case. She submitted that the extreme character of one or more culpability B factors and/or a combination of culpability B factors does not safely feature in relation to Makengo to result in category A applying. In his case too, the jury could not have been of the view that he intended for those present at the scene to use at least really serious harm towards the victim because he was acquitted of murder. Moreover, the judge accepted that he would not have known that those present at the scene would have knives. He too can only have intended that some harm be caused. Makengo was not associated with Rahemi or Mirza and was not present at the scene. There was no direct evidence to support his involvement in transporting petrol at any time and the judge was not entitled to draw that inference. Further, the fact that he was not present at the scene of the murder, means he would arguably not have known the extent of any force used by those present. 36. Finally, both appellants contend that even if the judge was justified in concluding that this was a category A offence within the guidelines, the notional sentence was too high in each case. The aggravating features identified by the judge were the very features of culpability B (or so closely associated with those features) that resulted in category A being the more appropriate category in this case. They had already been taken into account in reaching the category A conclusion, and there was no justification for increasing the starting points to 24 and 22 years respectively. Analysis and conclusions 37. We start with role and categorisation. The judge presided over this seven-week trial. Unlike this court, the judge had the obvious benefit of having heard and been immersed in all the evidence (including factual/eyewitness, cell site, telephone, forensic and expert evidence) about this revenge attack, its planning and execution. She was uniquely well placed to evaluate the role of each appellant in the offending. She made determinations of fact, as she was entitled to do, and in our judgment, was fully entitled to make the findings she did. 38. Despite the attractively presented and superficially compelling challenge by Mr Smith to the rationality of the judge’s factual findings, we are satisfied that there was no inconsistency in her factual findings, the manslaughter verdicts and her conclusion that she could not be sure either appellant knew the attackers would be armed with knives. We are satisfied that the judge was amply entitled to conclude that the significant planning, the stealing of cars, the use of dirty phones and petrol to set fire to the stolen cars were all part of reputation building, and the demonstration of power and strength in the context of ongoing violence between rival factions and the earlier attempted murder by shooting. The jury were not sure that either appellant had the necessary intent for murder, but this was a death caused in the course of an unlawful act: a minutely planned, remorselessly executed revenge attack by a group of men on one unsuspecting man. These were, on any view, extremely serious features. There was clearly a high risk of death given the group attack in which Mirza was significantly outnumbered. The fact that each appellant’s own intention fell just short of really serious harm does not alter this, or the extreme planning and remorseless execution that were features of this organised attack. As we have said, it was reputation building violence in a show of strength and power. 39. Both appellants played an intrinsic part in the attack. Both knew and intended an attack just short of grievous bodily harm by four men on Mirza. It was a clearly motivated revenge attack. This was offending at the most serious end of the spectrum for manslaughter. Their own roles, motivation and participation are unchanged by the verdicts. 40. In the case of Bangash, the history of his engagement with others, including his friend Rahemi, the detail of telephone activity, the planning and movements before, during and after the attack, amply entitled the judge to find that he was a leading organiser. He orchestrated events, while ensuring that others took the risk of attending the scene of the attack itself. For example, he was part of the multiway call involving Mirza, Makengo and Khan before the attack, and as Mirza was being driven to the ambush, Bangash was speaking to him by phone, providing reassurance to him, as he was driven to the prearranged place for the ambush. The evidence undoubtedly justified the assessment of very high culpability in Bangash’s case and the description of double agent. 41. The same is true in relation to Makengo’s role, motive and participation, and we reject the submission that his conduct properly assessed was in category B at most. There was ample evidence of Makengo’s involvement in planning the revenge attack intending violence just short of really serious harm. He assisted in stealing cars. Petrol cans produced by Aman and Beqa were put into the Kuga and driven to the scene by Makengo. He took part in the reccy near Express Drive where the red Peugeot was burnt out. Makengo spoke to Khan on the morning of the attack, at a time when Khan was in the area of Owen Waters House, and immediately afterwards, he was in contact with Riaz and Moore, all principals in the murder. Makengo was also part of the multiway call immediately before the attack, as the judge was entitled to conclude; and he was involved in the aftermath. The judge made wholly justifiable determinations of fact. Her findings as to the nature of the offending generally, and Makengo’s own conduct and the role he played in it, cannot be impugned. They provide ample justification for her assessment of very high culpability in Makengo’s case. 42. For all these reasons we are satisfied that this was demonstrably a category A case for both Bangash and Makengo. 43. As to the approach to the question of dangerousness, we consider that it would have been better for this question to have been ventilated in the course of the sentencing hearing and an express opportunity given to defence counsel to make submissions on it. That said, in light of the nature and seriousness of this organised attack, the possibility of dangerousness findings was inherent in the case, and by implication, the possibility of a discretionary life or extended sentence. Furthermore, it was expressly referred to in the prosecution sentencing note. Given the evidence as a whole, and the judge’s wholly justifiable determinations of fact as to each appellant’s role and character, we can see no basis for interfering with the findings of dangerousness that she made. We repeat: this was an organised revenge attack; meticulously planned over weeks and remorselessly executed by a large group of men; and each appellant played an intrinsic and significant role in it. 44. Bangash was, as the judge found, a leading organiser. He planned and orchestrated events in a way that would demonstrate his faction’s strength and power, and he ensured that others took the risk of attending the scene of the revenge attack itself. The judge was uniquely well placed to assess the role he played in planning and effecting the execution of the attack, his overall culpability and the risk he posed. The findings she made were amply open to her, and entitled her to conclude that he posed a significant risk of serious harm in all the circumstances. Her conclusion that a life sentence was necessary, was both rational and reasonable: the seriousness and sophistication of this revenge attack, in which he intended violence just short of serious harm to be caused, was an ample basis for concluding that his role in this offence was at the most serious end of the spectrum. We have concluded that there is no proper basis on which to interfere with her assessment that he is dangerous, and that a life sentence was necessary in his case. 45. Likewise, Makengo was trusted by Khan, one of the principals in the attack, and played his part in the planning and putting into effect the group attack on Mirza. Though he did not know weapons would be used, he must have known this was to be a group attack by four on one in which he intended violence just short of serious harm to be caused. The judge considered the detail of his role in undertaking significant tasks leading to this revenge attack following the shooting and attempted murder of Rahemi. She properly considered Makengo’s maturity relative to other convicted defendants, as well as his evidence during the trial. She was able to make a clear assessment of him when he gave evidence. She also had proper regard to the report of Dr Reid. Her judgment that he too posed a significant risk of serious harm in all the circumstances, and that an extended sentence was necessary, was properly based, and cannot be impugned. 46. That leaves the question whether the ultimate sentence imposed in each case was, as both Mr Smith and Ms Bickerstaffe contend, manifestly excessive. As we have explained, having concluded that this was a very high culpability manslaughter offence in each case, the judge identified a number of features that aggravated the offence for both appellants, and which she expressly said were not features she had already taken into account in placing the offending in category A. In Bangash’s case this resulted in an increase from the 18-year starting point in category A to 24 years, and in Makengo’s case, an increase to 22 years. Both counsel contend that the increase was too high and that the aggravating features were already encompassed in the 18-year starting point in each case. 47. We have set out the aggravating features relied on by the judge. We have concluded that there is force in this ground. With all respect to the judge to whom we pay tribute for her careful, detailed sentencing remarks, we consider that she fell into error in aggravating the starting point to the extent to which she did in both cases, and that there was an element of double counting. In particular, we consider that the first two aggravating features she identified (it was a revenge attack in the context of ongoing violence between different factions by a group of men) were very closely connected with the judge’s assessment that this was category A offending with a starting point of 18 years’ imprisonment. On the other hand, we are satisfied that the judge was entitled to have regard to the fact that this was a planned attack in public areas where others were liable to be affected and that significant suffering was caused to Mirza by the group attack, albeit neither appellant knew knives would be used. Neither man was of good character. We do not understate the seriousness of the appellants’ respective roles in this offending, but viewed overall, we have come to the conclusion that although the features identified by the judge justified an increase in the starting point in each case, we consider that an increase of 6 and 4 years respectively was manifestly too high. 48. Having regard to these conclusions and balancing the mitigating considerations applicable to Bangash, we consider that the notional determinate term in his case should have been 18 years. On that basis, the sentence should have been one of life imprisonment with a minimum term of 12 years. We therefore allow the appeal in his case to this limited extent only: we quash the sentence of life imprisonment with a minimum term of 14 years, and substitute for it a sentence of life imprisonment with a minimum term of 12 years. 49. So far as Makengo is concerned, and again balancing the aggravating and mitigating considerations applicable to his case, there should have been a notional determinate term of 14 years. His extended sentence should therefore have comprised a custodial term of 14 years. We consider that an extended licence period of four years was appropriate. We therefore allow the appeal in his case to this limited extent only: we quash the extended sentence of 21 years (comprising a custodial term of 16 years and an extended licence period of five years), and substitute for it an extended sentence of 18 years, comprising a custodial term of 14 years and an extended licence period of four years.

2023_10_12-5858.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1149/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1149

82a2cbc479971fb4a0ede844393fb3c26560c30cb665aeddd9833c65901ce8b9

[2016] EWCA Crim 1048

EWCA_Crim_1048

crown_court

Neutral Citation Number: [2016] EWCA Crim 1048 Case No: 2015 02264 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT BRISTOL HH Judge Lambert T2014 7587 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/7/2016 Before: LORD JUSTICE SIMON MR JUSTICE HICKINBOTTOM and HIS HONOUR JUDGE ZEIDMAN QC - - - - - - - - - - - - - - - - - - - - - Between: (1) John Denham (2) Matthew Stansfield Appellants and The Crown Respondent - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2016] EWCA Crim 1048 Case No: 2015 02264 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT BRISTOL HH Judge Lambert T2014 7587 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/7/2016 Before: LORD JUSTICE SIMON MR JUSTICE HICKINBOTTOM and HIS HONOUR JUDGE ZEIDMAN QC - - - - - - - - - - - - - - - - - - - - - Between: (1) John Denham (2) Matthew Stansfield Appellants and The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Robin Shellard for Denham Mr Derek Perry for Stansfield Mr Robert Davies for the Prosecution Hearing date: 28 June 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Simon: 1. On 27 February 2015 at Bristol Crown Court, the appellants Denham and Stansfield each pleaded guilty to a number of sexual offences. 2. On 22 April 2015, following a trial before HHJ Lambert and a jury, Denham was convicted of Conspiracy to Sexually Assault a Child under 13. This was a conviction on count 1A, which was an alternative to count 1 on the trial indictment: Conspiracy to Rape a Child. On the same occasion Stansfield was convicted of two counts of Conspiracy to Rape a Child (counts 2 and 4). 3. Denham’s and Stansfield’s applications for leave to appeal against conviction and for a representation order have been referred to the full court by the Single Judge; and Denham’s application for leave to appeal against sentence has been referred to the full court by the Registrar. 4. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. 5. We grant leave to appeal against conviction and consider the application for leave to appeal against sentence later in this judgment. 6. There were a number of co-accused, but at this stage it is only necessary to refer some of these defendants and the charges to which they pleaded guilty. We do so by reference to the trial indictment. 7. Robin Hollyson pleaded guilty to three charges of Conspiracy to Rape a Child (counts 1, 2 and 4), and Christopher Knight pleaded guilty to two charges of Conspiracy to Rape a Child (counts 1 and 2). Two other defendants also figure in the narrative: Matthew Lisk and David Harsley. 8. The charges reflected offending by a number of men who had an interest in the sexual abuse of young children. 9. A baby boy (T) was one of the victims of this abuse. T lived with his parents in Luton, in a house next door to Hollyson. His parents were friends of Hollyson; and they had made him a godparent of T. Although they knew that Hollyson been to prison, he had not told them that this was in connection with downloading images of children. They trusted him and were happy for him to babysit T when the need arose. 10. Between December 2013 and January 2014, Hollyson raped T for the first time by inserting his penis into the child’s mouth, at a time when he had been trusted to look after him. He filmed the rape, broadcast it and sent it to others. He pleaded guilty to the offence of Rape, and the taking and distributing of a video showing the commission of the offence. The film was recovered from Denham’s computer. 11. Count 1/1A of the trial indictment related to a plan by Hollyson to invite others to go to Luton on another occasion when he would have sole charge of T, during which T would be sexually abused. This was due to take place on 17 January; and the Prosecution case was that the plan only failed because Hollyson was unexpectedly detained in Hospital on 17 January, having been admitted on the previous day for a prearranged operation. But for this fact, and the fact that T’s father had unexpectedly returned home on 15 January, the abuse would have taken place. The Prosecution produced records of Skype and other chat logs which showed graphic discussion about the anticipated abuse of T between the alleged conspirators, although no particular time or place was mentioned. Although Knight and Denham had met in London on 17 January, they did not communicate electronically between 7 January and 4 February. Denham never met T; and the Skype chat between Denham and Hollyson contained regrets that they had not met on 17 January. Hollyson and Knight both pleaded guilty to the count 1 conspiracy. 12. Following his arrest in September 2014, Denham was interviewed and asked about the electronic communication. He explained that his internet name (which might be said to demonstrate an unequivocal interest in abuse of very young children) was used to get attention from other online users. He said that he fantasised about such abuse, but that his fantasies never extended to the ‘real world.’ Denham’s defence at trial was that the Skype chat was simply masturbatory fantasy. When discussing the abuse of infants and children he became aroused and masturbated, along with others. However, he did not think that there was any real plan to rape T, whom he had never met, never seen and did not know had been abused at this point. 13. The issue for the Jury on counts 1 and 1A, was whether Denham joined in the agreement to rape or abuse T and ‘got cold feet’ (as the prosecution alleged), or whether (as the defence alleged) he had never been party to the conspiracy to abuse T, and had simply engaged in fantasy chat. 14. Count 2 charged Stansfield of a conspiracy between 1 and 6 February 2014 with others, including Hollyson and Knight, to rape T. As we have noted, Hollyson and Knight both pleaded guilty to this count. 15. The charge related to an incident that occurred on 5 February 2014. Recovered chat logs showed that a few days before this date Hollyson communicated to Denham that he would have access to T on the morning of 5 February and that he could attend to abuse T with Knight. In fact, Denham was unable to get to Luton on 5 February. However, cell site and automatic number plate recognition (ANPR) evidence showed that Stansfield left his home in Portsmouth at about 05.45 and travelled to Luton. 16. Stansfield explained that he had been invited to Luton at short notice by Knight; and that Knight had told him that there would be a ‘free area’ where there would be ‘a party’. His understanding was that indecent images would be shown and shared, and masturbation would take place. He was given a postcode for his satnav and was told that Knight would meet him, and that they would go on to the ‘free area’ together. The evidence showed that as Stansfield was travelling to Luton from Portsmouth, Knight was travelling to Luton from Manchester. Stansfield arrived at 07.45, but Knight was delayed and did not arrive until 09.30. In the intervening 90 minute period there was frequent telephone contact between Knight and Stansfield, and between Knight and Hollyson. Stansfield’s case was that after arriving at the designated location in Luton, he waited for Knight and that by the time he had arrived Knight had learnt that the ‘host’ no longer had a ‘free house’. He and Knight had then had coffee together and he had returned to Portsmouth. 17. In the months that followed it was accepted that T had been abused by Hollyson, Knight and others. Although Stansfield’s mobile phone never returned to Luton, the evidence showed that he had viewed online images of T being abused. 18. Count 4 charged Stansfield between 1 July and 9 August 2014 of a further conspiracy with others, including Hollyson, to rape T. Hollyson pleaded guilty to this offence. 19. The Prosecution case on count 4 was that the abuse of T took place on-line using ‘Skype Chat’ and the TOR internet messaging service. Skype chat logs showed that Stansfield was in contact with Hollyson and, on 28 July, in a clear reference to T, asked whether there was ‘any chance of seeing him soon.’ Hollyson replied that 8 August was a possibility. The conversation then turned to a discussion about the possibility of group abuse on 8 August, with Stansfield suggesting that he might invite others and Hollyson encouraging him to do so. The evidence showed that over the following 7 or 8 days, Stansfield was inviting a number of people to Luton on 8 August, and it is accepted on Stansfield’s behalf that the ‘plan’ was for T to be abused on that date. Denham was one of those with whom Stansfield was in contact. 20. On the morning of 8 August, Stansfield sent a message to Hollyson telling him that his car had broken down the previous evening, and that the AA had told him it could not be used for a long drive. This was untrue. In fact, he was not even a member of the AA. There was an issue as to how this should be regarded by the jury. 21. The Crown case was that there was a conspiracy from which Stansfield had withdrawn. Stansfield’s case was that he had never intended that T should be raped. His approach to Hollyson was to ingratiate himself and his approach to others was not genuine. The defence case was that he obtained sexual gratification from the fantasy of pretending to carry out abuse and from the fact that others thought he was genuine. 22. One of the issues which the Judge had to consider was whether the Prosecution should be allowed to rely on the guilty pleas of Hollyson (to counts 1, 2 and 4) and of Knight (to counts 1 and 2); and his ruling that the Prosecution was so entitled gives rise to the first ground of appeal. Ground 1 (Denham and Stansfield) 23. The Prosecution relied on the provisions of s.74 of the Police and Criminal Evidence Act 1984 (‘PACE’) (1) In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom … shall be admissible in evidence for the purpose of proving that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given. (2) In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom … he shall be taken to have committed the offence unless the contrary is proved. 24. Section 78 of PACE provides for the exclusion of evidence where its admission would be unfair. (1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely 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. 25. Mr Shellard and Mr Perry submitted to the trial judge that there was clear authority that s.74 of PACE should be used sparingly, particularly in cases where a joint offence is being alleged, such as conspiracy. They submitted that where the evidence which the Prosecution sought to be put before the Jury under s.74 by necessary inference imported the complicity of a defendant who was standing trial, then the evidence should be excluded under s.78. The judge rejected those submissions. 26. Mr Shellard argued that Denham had advanced a defence of fantasy, in circumstances where there was no completed offence and where the evidence against him relied on conversations with those who had pleaded guilty to the conspiracy. The jury had to consider a closely confined issue: whether Denham was part of this conspiracy. The judge’s ruling made a challenge to the existence of a conspiracy impossible, and not merely difficult. 27. Mr Perry advanced a similar argument in relation to count 4 where likewise there was no completed offence. He further argued that it was possible that the guilty pleas of Hollyson and Knight may have been entered for tactical reasons, so as to avoid a trial in circumstances where convictions on these two particular counts were unlikely to affect the overall sentence. He complained that the Prosecution did not call Hollyson and Knight, and therefore Stansfield’s defence had no opportunity to cross examine on these points. 28. On count 2 it was not possible to explore the possibility that the intention might have been to have abused T, rather than to rape him. On count 4 it was not possible to explore the possibility that Hollyson did not in fact take Stansfield seriously and that he (Hollyson) never intended rape or other abuse to take place on 8 August. The issue in relation to count 4 was not merely whether Stansfield had joined the conspiracy with the necessary intent. The ‘plan’, which at face value existed, was initiated by Stansfield; and it followed that it was not a case in which the jury were considering whether he joined a concluded agreement. In these circumstances, there was a realistic chance that the jury might conclude that Hollyson’s plea connoted guilt on the part of Stansfield; and insufficient regard to the subtle but significant point that if one party (even the instigator of a plan) lacks the intent to execute the conspiracy he is not guilty. 29. These were points that were repeated on appeal in support of ground 1; but before considering them, it is necessary to see how the trial judge dealt with them. 30. In a thorough and careful ruling, giving reasons for his earlier decision to admit the pleas of Hollyson and Knight, the judge referred to a number of decisions which provided guidance on the interaction of sections 74 and 78 of PACE in conspiracy cases: Curry [1988] Crim L R 527; Kempster [1990] 90 Cr. App 14; Derek Nathan Smith [2007] EWCA Crim 2105 and FBMK [2012] EWCA Crim 2438 . 31. He accepted that s.74 should not be used to allow evidence to go before a jury which is irrelevant, inadmissible, prejudicial or unfair simply because it was convenient for the jury ‘to have the whole picture’. He directed himself in accordance with the law as set out in Derek Nathan Smith at [20]. It remains a proper approach, we are satisfied, that where there was no real question that the offence was committed by someone and the real issue was whether the present defendant was a party or not, the evidence of pleas of guilty is likely to be perfectly fair, though each case depends on its own facts. 32. He also noted the court’s qualification to that general proposition, namely: However, it also remains true that such evidence may well be unfair if the issues are such that the evidence closes off issues which the jury has to try.’ 33. The judge adopted that approach at p.9D of his ruling. If the admission of the guilty pleas of others effectively shuts down a defence, or a particular line of defence, or makes it a practical impossibility to defend the case, then the pleas must not, of course, be admitted. 34. Having reviewed the authorities the judge concluded (at 10F): Section 74 is to be approached with caution and it is not to be used as a matter of routine. It is not to be used as a smuggling device to place evidence before the jury which it would be convenient for the jury to hear. The paradigm notions to be applied will be those of relevance and then fairness. 35. We entirely agree with this approach. 36. He then went on to deal with the instant case (at 10G): On the facts of the case, it seemed to me that there was no real question but that the offences were committed by someone, and the real issue was whether the present defendants were party to the concluded agreements, with the requisite intent, or not. I found, on the current facts, evidence of the pleas of guilty of others was likely to be perfectly fair, though of course that could alter if the evidence at trial was at variance with that predicted by the witness statements and exhibits, or if defences emerged divergent from those in the Defence Case Statements. I reminded myself from the authorities that it also remains true that such evidence may well be unfair, if the issues are such that this evidence would close off the issues which the jury has to try. But it means just that, to close off, not to make more difficult. 37. With proper, early directions in respect of the elements of conspiracy, combined with written direction the judge was satisfied that it would be fair and proper to admit the evidence. 38. The essential questions raised by this ground of appeal are: first, whether the judge’s approach was wrong in law; and secondly, if not, whether his decision to admit the evidence was nevertheless a decision which can be properly impugned on appeal? 39. On the first point we are clear that he correctly stated the law which should be applied. The evidence should be excluded if its admission were unfair in the particular circumstances. 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. 40. On the second point, 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. 41. In our view, the admission of the evidence of Hollyson’s and Knight’s pleas neither shut off the defences which had been raised in the defence statements, nor close down the very issue the jury had to consider. It was not the defence of either appellant that there were no conspiracies to abuse T, their cases were that they were not a party to such conspiracies, either because they had not joined in the particular conspiracy, or because they had a different intent as to what the plan was to achieve, or because the whole plan was, in their mind, simply a masturbatory fantasy. In our view the challenge to the judge’s decision to admit this evidence fails. 42. We would add that the jury’s verdicts on counts 1 and 1A plainly shows that it was able to distinguish the intent of Hollyson and Knight on the one hand, and the intent of Denham on the other. Ground 2 (Stansfield) 43. At the conclusion of the Prosecution case Mr Perry submitted that there was no case to answer against Stansfield in respect of Count 2. It was conceded that it was open to the jury to reject the appellant’s evidence that he went to Luton on the 5 February 2014 to masturbate and view indecent images, and that it could conclude that he intended some form of abuse against T was to take place (and therefore that count 3, conspiring to sexually assault a child under the age of 13, could be left to the jury). However, it was submitted that the jury could not conclude that he necessarily intended that oral rape rather than other forms of abuse would occur. 44. At Mr Perry’s invitation, the judge considered the case of Goddard and Fallick [2012] EWCA Crim 1756 , and noted that the evidence against Stansfield on count 2 was limited. He regarded it as ‘pivotal’ to the question whether or not there was a case to answer that there was ‘backwards referable evidence of intent’. In his view, the evidence of Stansfield’s participation in Skype and other conversations on 4 and 5 August 2014 was sufficient evidence on which a reasonable jury, properly directed, could find that there was a conspiracy to rape T, rather than some other form of abuse on 5 February 2014. The judge added, ‘It is only by reference to those conversations that I consider that there would be sufficient evidence.’ 45. In support of ground 2, Mr Perry submitted that the evidence of Stansfield’s communications with various known and unknown Skype and chat line users on 4 and 5 August was an insufficient basis for a jury forming a view about his intent 6 months earlier. He submitted that, although these communications appeared to show an intent to rape, they were at least as consistent with fantasy and a desire to obtain kudos among the online community of paedophiles, where being regarded as ‘genuine’ was important and where sexual gratification was derived from the thought of being taken seriously as a paedophile. He submitted that they were at least as consistent with him being a boastful and lying fantasist. Furthermore, and quite apart from the genuineness or otherwise of the communications on 4 and 5 August, none of them contained any detail which would enable the reader to relate them to 5 February. 46. Mr Davies submitted that the prosecution had accepted that some of the communications of 4 and 5 August 2014 could have been fantasies, but the jury was entitled to consider this material and form its own view about it, when considering what Stansfield had intended in February 2014 when he had driven from the south coast to Luton at a time when he believed Hollyson had sole charge of T. 47. We accept Mr Davies’s submission. We do not intend to set out in this judgment the nature of the exchanges to which Stansfield was a party on 4 and 5 August 2014. It is sufficient to say that there were communications by him which were, at the very least, consistent with an intent to rape T. Whether that intention had changed since 5 February was, as the judge concluded, a matter for the jury to consider. 48. The court in Goddard and Fallick was faced with a different situation, described at [40]: We have concluded that no reasonable jury, taking the prosecution evidence at its highest, could surely infer that the defendants intended to carry out the agreement. The evidence is all equivocal; it is as consistent with fantasy as with an intent to carry out the plan. It is particularly striking that these men never met at any stage, either before or after the text exchange nor did they even suggest meeting to discuss the plan further. Nor is there any evidence that they took any steps to advance the plan beyond suggesting. ‘Friday night’. No place or time or other practical details are identified. Nothing at all happened after the exchange of text messages. We appreciate that their silence in interviews and failure to mention that this was all a fantasy can be taken into account. But that is of very little weight given the other facts or rather lack of them. 49. Here there was the evidence which we have set out above and which was identified by Mr Davies, there was discussion of time and place, with descriptions of practical details and there was the round trip to Luton and back. In our view, it was plainly open to a jury to conclude from the totality of the prosecution evidence that Stansfield had an intent which went significantly beyond the admitted masturbatory. 50. For these reasons we dismiss Stansfield’s second ground of appeal; and both Denham and Stansfield’s appeal against conviction. Application for leave to appeal against sentence (Denham) 51. On 27 February 2015 Denham had pleaded guilty to a number of offences: count 5 (Conspiracy to engage in Sexual Activity in the presence of a Child), count 2 (Possession of Indecent Photographs), count 22 (Making Indecent Images of a Child), count 23 (Distributing Indecent Images of a Child) and count 24 (Possession of Extreme Pornography). 52. On 11 September 2015 he was sentenced for these offences as well as the offence of which he had been convicted by the jury: count 1A (Conspiracy to Sexually Assault a Child). 53. The sentences which were passed were: on count 5, a 12 year extended sentence (comprising of a determinate term of 8 years and an extended licence period of 4 years); on count 21, no separate penalty; on count 22, 16 months imprisonment concurrent; on count 23 a 12 year extended sentence (comprising of a determinate term of 8 years and an extended licence period of 4 years) concurrent; on count 24, 6 months imprisonment concurrent and on count 1A, a 12 year extended sentence (comprising of a determinate term of 8 years and an extended licence period of 4 years). An overall sentence of 12 years, comprising a 8 year custodial term and a 4 years period of extended licence. 54. On 5 November 2015 Denham’s case was relisted before Judge Lambert pursuant to s.155 of the Power of Criminal Courts (Sentencing) Act 2000 . An error in the sentences on counts 5 and 23 was identified. The sentence on each count had exceeded the maximum sentence for the offences. Accordingly, the judge varied the sentences. Count 5 was varied to a term of 2 years imprisonment, concurrent, and the sentence on Count 23 was varied to 4 years imprisonment concurrent. The sentence for the offence of which he was convicted, count 1A, was unaffected. 55. The grounds of appeal against sentence are confined. It is not argued that an overall sentence of 8 years custodial term gives rise to properly arguable grounds of appeal. Nor is it argued that the decision to pass an extended sentence gives rise to properly arguable grounds of appeal. Mr Shellard sought to argue that a sentence of 8 years on count 1A was manifestly excessive and that the overall sentence for that sentence should have been a term of 4 years. The sentence of 8 years should have been made up by passing sentences of 4 years each on count 5 and 23 to be served concurrently with each other, but consecutively to the term passed on count 1A. Such a course would have had a beneficial effect, so far as Denham is concerned, in terms of his release date. 56. We are entirely unpersuaded by this argument which, incidentally, involves Mr Shellard arguing that the sentence passed on his client in respect of count 5 should be doubled and submitting that the court should approach sentencing on the basis of the most favourable release regime from the offenders point of view. Looking at the overall sentence passed for this offending we are entirely unpersuaded that the extended sentence of 12 years for the overall level of his offending is either wrong in principle or manifestly excessive. 57. Accordingly Denham’s application for leave to appeal his sentence is refused.

2016_07_28-3813.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1048/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1048

9ad171a2a427edc7ab5e56adf1cba1033f1d163ff56b166dd8ee10f5f3f4277f

[2007] EWCA Crim 801

EWCA_Crim_801

crown_court

Case No: 2006/04256/A1 Neutral Citation Number: [2007] EWCA Crim 801 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 20 March 2007 B e f o r e: LORD JUSTICE SCOTT BAKER MR JUSTICE OPENSHAW and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - PAUL RICKY WEST - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet S

Case No: 2006/04256/A1 Neutral Citation Number: [2007] EWCA Crim 801 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 20 March 2007 B e f o r e: LORD JUSTICE SCOTT BAKER MR JUSTICE OPENSHAW and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - PAUL RICKY WEST - - - - - - - - - - - - - - - - - - - - - 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 J EVANS appeared on behalf of THE APPELLANT - - - - - - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE SCOTT BAKER: I will ask Mr Justice Openshaw to give the judgment of the court. MR JUSTICE OPENSHAW: 1. On 21 July 2006, in the Crown Court at Cardiff, His Honour Judge Morris sentenced the appellant Paul West to a total of four and a half years' imprisonment following his pleas of guilty to two counts on the indictment alleging against him on count 1 a conspiracy to supply heroin, a Class A controlled drug, and on count 2 a conspiracy to supply cocaine, a Class A controlled drug. The judge gave a direction under section 240 of the Criminal Justice Act that the full time which he had spent on remand should count towards the sentence. The appellant appeals against those sentences following the granting of leave by the full court. 2. The facts were as follows. In the autumn of 2005 the police ran an undercover operation targeting drugs dealers in Cardiff. The investigating officers identified two houses in the Splott area of the city which were being used to distribute drugs. It appeared to the police that the system which was being operated was that people from outside Cardiff were being brought to these houses to do the actual distribution. 3. On 22 November undercover officers rang one of the telephone numbers which they had and which appeared to be actively in use at this delivery centre. They ordered some crack cocaine. As a result of what they heard over the telephone they went to an agreed meeting place near one of these houses where they met the appellant who supplied them with drugs for £20. On the afternoon of that same day, two other undercover officers contacted one of the other numbers. Again a meeting was arranged and again a supply was made by the appellant of a wrap of heroin and a wrap of crack cocaine. The next day, following another call, the appellant supplied both sets of officers with drugs at separate times. On 24 November the appellant again made a further supply. Following that, at about noon search warrants were executed at these addresses. The appellant was arrested. He was found to be in possession of the bank notes which the undercover officers had passed to him shortly beforehand. Seventeen wraps of crack cocaine and three wraps of heroin were found hidden in the house. The appellant was found to be in possession of £667 in cash. A number of mobile phones were found in the house. It was plain that these had been used to make contact with abusers on the street who were ready and willing to buy the drugs from him. 4. On 24 May 2006, when the appellant had originally entered his plea of guilty to the indictment, defence counsel had told the judge that a written basis of plea would be lodged in the course of the next few days. In retrospect it can be seen that it might have been better had that been done at the time since it would have given everyone the chance then and there to reflect upon the best course of action. A written basis of plea was eventually sent to the Crown Prosecution Service. That document (at least in the version before us) is unsigned and undated. It reads as follows: "1. The defendant met a male person known as G whilst working in the construction industry in Birmingham and whilst socialising with mutual friends in the Jamaican community. 2. The defendant agreed to sell a motorbike to G for the sum of £500 and was paid £150 by G. He then left the Birmingham area. The defendant subsequently saw him in McDonald's food outlet in Birmingham in November 2005 and G agreed to repay the monies. However he advised the defendant he would have to go to Cardiff to get those monies and offered to find the defendant employment if he accompanied him to Cardiff. 3. The defendant upon arriving in Cardiff was told that he could live at 2 Inchmarnock Street, Splott, Cardiff [one of the houses which the police had under observation] and he was told at the time that the only work available for him was supplying controlled drugs. G offered him the return of £350 and in addition stated he would provide for him whist he remained in Cardiff and also offer further work if he wished to remain in Cardiff. 4. The defendant will maintain that he intended to remain in Cardiff for no more than one week during which time he was assured of the return of his monies and at that point he would return to the Birmingham area where he lived at the time with his girlfriend and had a number of friends and family. 5. The defendant accepts that between 21 November 2005 and the date of his arrest he supplied heroin and cocaine on a number of occasions. The defendant also accepts that he became aware that G was using other persons to supply controlled drugs but at no time did he come to know any of these persons, nor did he meet them to the best of his knowledge." 5. That basis of plea was sent under cover of a letter from the defence solicitors dated 30 May 2006. That letter was misleading in that it stated: "We understand that His Honour Judge Morris has invited the Crown Prosecution Service to agree the basis of plea as quickly as possible and look forward to hearing from you in that regard." Reading this letter, and unwisely accepting it as more or less a direction to agree that basis of plea, a member of the CPS staff is said to have agreed to it without asking counsel who had been retained to prosecute all the cases arising out of this operation. That was unfortunate. When in due course prosecution counsel saw the basis of plea, he immediately realised that it was in fact unacceptable since it claimed for the appellant only a minor role, whereas it was the case for the prosecution that he had been one of the organisers. Therefore when the matter came back for sentence on 21 July, the prosecution sought to persuade the judge to hold a Newton hearing. Although we have no transcript of this exchange, we are told that the judge decided not to do so. He said that he could come to his own conclusion on the material before him, and that is precisely what he did. 6. When sentencing the appellant the judge said as follows: "The evidence in this case reveals that .... you were recruited from elsewhere in this country to come to Cardiff to manage a drugs distribution operation from two premises in Cardiff. You were recruited to live there and I am satisfied upon the available evidence that your part in the distribution exercise was effectively to control those two houses as stockholding warehouses for heroin and cocaine. I accept straightaway that you were not the main organisers of this distribution chain, and you may very well not know those who may never be brought to book, who were behind the setting up of this whole operation. I accept again that you were but employees, but you were employees in a position when you could, from time to time, direct others as runners or delivery boys, following the receipt of telephone orders, which task you also carried out from time to time yourself, when the need arose. You did so our of purely commercial motives, for easy money in hand, with no questions asked and without any tax implications or liabilities." It seems to us that the judge had decisively rejected the basis of plea and in so doing we think he was in error. He should have held a Newton hearing. The appellant should have been invited to give evidence. If he accepted that invitation, he could then have been cross-examined upon the improbable assertions which he made and the judge then could have drawn such inferences as he thought fit. Since none of this was done, it seems to use that he should have sentenced the appellant on the basis of the plea entered. 7. In the circumstances the appeal must be allowed. We will substitute a sentence of three and a half years' imprisonment to correspond with the sentences passed upon the other defendants who played similar roles to that admitted in the basis of plea. 8. This case illustrates yet again the critical importance of judges following the guidance given by the Court of Appeal in R v Underwood [2005] 1 Cr App R(S) 478, that is to say that the basis of plea should be put into writing and it should be endorsed with the observations of the prosecution and indeed of the trial judge. If that had been done in this case the serious disputes of fact would have been exposed. We have little doubt that a Newton hearing would have been directed and that these problems would have been avoided. __________________

2007_03_20-1051.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/801/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/801

e37bcdda9d5273d3a04c6a8d6a9d001c54e668aef3075d8d4200025ea80c2f35

[2010] EWCA Crim 2847

EWCA_Crim_2847

crown_court

Neutral Citation Number: [2010] EWCA Crim 2847 Case No: 2008/01714/C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT PLYMOUTH The Hon. Mr Justice Royce T200607112 Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/12/2010 Before : LORD JUSTICE LEVESON MR JUSTICE IRWIN and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - Between : MICHAEL DENNIS BURRIDGE Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2010] EWCA Crim 2847 Case No: 2008/01714/C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT PLYMOUTH The Hon. Mr Justice Royce T200607112 Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/12/2010 Before : LORD JUSTICE LEVESON MR JUSTICE IRWIN and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - Between : MICHAEL DENNIS BURRIDGE Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Henry Blaxland Q.C . and Dr David Thomas (instructed by William Bache & Co) for the Appellant Mr William Boyce Q.C. and Ms Jo Martin (instructed by Crown Prosecution Service, Plymouth ) for the Respondent Hearing dates : 11, 13, 14 October, 12 November 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. Rees Burridge was born on 7 August 2006. Just short of 8 weeks later, on 30 September 2006, he was admitted to hospital suffering from irrecoverable injuries and, on 2 October 2006, life support was discontinued and he died. An investigation of the circumstances which led to his admission to hospital resulted in the prosecution of his father, Michael Burridge, for murder. On 4 March 2008, in the Crown Court at Plymouth before Royce J and a jury, after a trial lasting 12 days, he was convicted of that offence and sentenced to life imprisonment with a period of 13 years being specified as the minimum term to be served. Over 2½ years later, his application for leave to appeal against conviction (based upon grounds which, as we shall later explain, have twice been recast) falls to be decided; having regard to the history, we deal with all the grounds that have been advanced. The Background Facts 2. The Applicant was born on 10 August 1979 and, at the material time, was 27 years of age. Having served two apprenticeships, he joined the army at 17 and served until 2002 when he left with a certificate of service which spoke highly of him and described his record as exemplary. Also in 2002, he married Donna Burridge (whom we shall describe as Donna throughout) and their first child, a daughter, was born in July 2004. It was common ground that Donna was much affected by in the deaths of her parents just before and shortly after the birth of their daughter. The jury also learnt that, at or about the end of 2004, the Applicant’s behaviour (particularly to other drivers of whose behaviour he disapproved) led to him going on an anger management course although he only attended an assessment and one session. In 2005, he had an affair with Donna’s cousin; quite apart from the effect it had on Donna, it was said to be relevant because it had affected the minds of her relatives against him. 3. When Donna became pregnant with Rees, he told the jury that he was pleased because he thought it would improve their marriage which was clearly stressful, not only because of the affair, but also because Donna continued to suffer from depression and, additionally, suffered considerable back pain following a road traffic accident years previously. A reflection of the position might be seen from discussions that husband and wife had with a clinical psychologist. On one occasion, the Applicant apparently commented that it would be better for everyone if he was dead and that he had thought about using carbon monoxide in the garage (although he later said the remark was flippant); Donna also admitted to suicidal thoughts. 4. After that short introduction, we turn to Rees and an account of his short life, the significant events in which were conveniently identified for the jury in an agreed chronology which starts with his birth, at 9.42 on 7 August 2006, by elective Caesarean section at 37 weeks gestation. Although his condition was described as good, shortly after he was delivered he showed signs that he was struggling to breathe, and so oxygen was supplied. His condition soon improved but, for a time, he was transferred to the Neonatal Intensive Care Unit. A chest X ray showed no fracture of any rib. There was a small hole in his heart, which is not an uncommon finding and was not regarded by any witness at trial as significant. Over the following 24 hours, he did very well and was allowed to leave hospital on the 10 August. His birth weight was between the 91 st and 98 th centile and his head circumference at birth about the 98 th centile. 5. In the first 24 hours following discharge, he was seen at home by a health visitor and by a general practitioner, Dr Cullen. On 12 August Rees was readmitted to hospital because of jaundice and weight loss. He was seen by Dr Allwood, a consultant neonatologist, and discharged home on the basis that he would return the following day for review. Donna duly took him back to hospital the following day. Again, he was seen again by Dr Allwood, and again, he was discharged. It was suggested to Dr Allwood in cross examination that the jaundice and/or the breathing difficulties at birth might indicate the presence of subdural haemorrhage at the time of birth. For reasons which he explained to the jury, Dr Allwood rejected that suggestion. 6. On a number of occasions between 16 August and 1 September, Rees was seen at his home by at least three different health visitors. None of them noted anything abnormal about his condition. Both parents were observed handling their baby son in an appropriate manner. On or about 2 September, however, it is said that there was an incident involving Rees and his elder sister (who, it is important to note, was then just short of 26 months old). In evidence, the Applicant said that he was putting shopping away in the kitchen when he heard his wife shouting in the living room. When he went to see what was happening, Rees was on the floor and his daughter was looking scared. Donna told him that Rees had been held by his sister around the throat and, presumably when she shouted, “thrown” onto the carpeted floor so as twice to hit his head. He said that Donna picked Rees up; he was quiet “for a couple of minutes” and then given a feed. Both parents thought he was all right and so did not seek any medical attention. Donna (who was not a witness in the trial) subsequently gave a number of different accounts of this incident to different health professionals and members of her family, which were not consistent with one another: some were in the presence of the Applicant and a number were recounted in evidence, although none was accepted by the Crown as true. We shall return to the detailed account of the incident which Donna gave when interviewed by the police as a witness, on the basis that the failure to use it has formed a ground of appeal. 7. Returning to the evidence before the jury, the Applicant said that on the day following this incident, 3 September, he and Donna noticed a little blood in one of Rees’s eyes. In addition, he said, Rees began frequent projectile vomiting and appeared to be in pain. Although noting these developments, medical attention was still not sought. 8. On 6 September, Donna saw a health visitor and reported that Rees was in pain and that popping noises could be heard in his chest. Later that day the Applicant, equipped with a note from Donna setting out her concerns, took Rees to the GP surgery. Rees was seen and examined by Dr Flanagan, who gave evidence about that examination. The Applicant reported to the doctor that Rees had been dropped on his head by his sister, and that since that event there had been popping or clicking noises emanating from his chest. On examination by Dr Flanagan, Rees appeared normal save for a small sub-conjunctival haemorrhage in one eye. Specifically, he showed no sign of discomfort when she was examining his ribs. Her evidence was that she was satisfied that Rees had not suffered any significant injury as a result of the incident with his sister. The Applicant himself, when interviewed by the police, said that after this visit to the doctor Rees was fine apart from the fact that he continued to vomit frequently. 9. On the following day, 7 September, Donna’s sister Janice Randall (herself the mother of young children) visited the house for supper. She gave evidence at trial describing Rees as being very quiet, and one of his eyes as being very bloodshot. She was given an account by Donna of the incident when Rees was dropped: Donna told her that Rees had been initially unresponsive and then very vacant for about 20 minutes. The Applicant, who was present during this conversation, appears not to have demurred from that account. Mrs Randall made a further visit to the house a week later, on 14 September: she noticed nothing unusual about Rees. 10. On the 19 September Donna took Rees back to the surgery, where he was seen by Dr Cullen (who had had contact with the family since 11 August). She told the doctor that Rees was unwell and that she was worried about his feeding because he vomited after food. Dr Cullen examined Rees, feeling his tummy and chest: no abnormality was disclosed and he appeared normal. 11. On 24 September, Rees was christened. As one would expect, a number of those present at the christening held him. He was described by witnesses as being pale, quiet and sleepy, but otherwise no witness reported noticing anything wrong with him. On 25 September, Rees spent some time in the care of the Applicant’s stepmother. She noticed that one pupil was larger than the other, and that he was pale and sleepy; she also reported that he showed no sign of discomfort or distress. 12. On the 26 September, Rees was seen again by Dr Cullen for the review which is routinely carried out at 6–8 weeks of age. Donna reported that frequent vomiting, sometimes projectile, was still continuing. Dr Cullen found no physical abnormality, but a hospital appointment was made for 28 September. That appointment was subsequently cancelled after Donna telephoned Dr Cullen and said that Rees was better and that the vomiting had settled. 13. We now come to 30 September, when plans had been made for Donna to spend the day Christmas shopping with her sister Janice. The Applicant was to look after the two children. With the children, he drove Donna to Janice’s house and after the two sisters had set off on their shopping trip, he remained for a time with Janice’s husband, Kevin. He then went off on an errand, leaving Rees in the care his brother in law. Kevin, who was aware that there had been reference to a problem with one of Rees’s eyes, told the jury that he made a point of looking into his eyes and moving his hand around to see if his eyes followed the movement. All seemed to be normal; the baby’s colour was okay and he seemed content. The Applicant, on his return, gave Rees a bottle and, again, according to Kevin, he seemed all right. The Applicant took Rees home at about 11 or 11.30am. Kevin Randall was the last person to see Rees before the events of the evening when he was taken to hospital. His evidence was therefore important as to Rees’s general condition only a matter of hours earlier. 14. In the course of the day, the Applicant sent a text message to his wife “All good here”. When she phoned at 3.40 pm, he said all was “OK”. At 7.44 pm he sent her another text message asking how far from home she was. Donna did not notice the arrival of that text until a few minutes later, and she then rang the Applicant. The call was timed in the call billing records at 7.55pm. In that call the Applicant told her that he was just about to drive to the hospital because Rees was not breathing, and appeared to be lifeless. She and her sister immediately diverted from their route in order to go straight to the hospital. They arrived at about the same time as the Applicant, and it was in fact Donna who carried Rees into the hospital at about 8.12pm. 15. The Applicant gave an account to the effect that Rees had passed the day uneventfully. Rees was supposed to have been given a feed at 5.00 pm but this slipped the Applicant’s mind. He left him in his cot during the day until about 7.00 pm when he undressed him for a bath. Rees had given a double intake of breath when first placed into the bath water (which he attributed to the water being a bit too cold), and had then been unusually quiet when being bathed, which he did not think anything of. He had looked all right and had been breathing normally when the Applicant was dressing him after the bath, which he did in day clothes which had just been bought for him. He put Rees into his cot and said that, after sending his 7.44 pm text message to his wife, he had gone to pick Rees up and found him pale with bluish lips. He then put him on the dressing unit and tried to find a pulse but could not. He tried cardio-pulmonary resuscitation (“CPR”) by breathing into him while holding his nose; he said he rubbed his tummy and tried to do compressions for about a minute. He still could not find a pulse. 16. It was then that the Applicant put Rees (and his daughter) into the car to drive to hospital rather than wait for an ambulance. He was just about to leave when Donna rang him in response to his text message. Thus, as a matter of timing, it was the Applicant’s chronology, maintained to the jury in his evidence, that the first time he had had any reason to be concerned about Rees was after he had sent his text message at 7.44pm, and therefore no more than about 30 minutes before he arrived at the hospital. On this account, nothing had happened which could explain why Rees had suffered such a sudden collapse. 17. At the hospital a staff nurse took Rees from his mother. He was blue, floppy and lifeless. The staff nurse started CPR, which she continued for about 15 minutes. This consisted of her placing her two fingers on his chest and compressing it on the nipple line. She estimated that she started that at about 8.14 pm, a couple of minutes after the first time recorded in the notes of 8.12 pm. She was asked whether her two finger compression could have been responsible for a small area of bruising in the centre of the chest (described by Professor Risdon at the post mortem as a grey apparent bruise (0.6 cm x 1 cm) present in the mid-line of the chest over the sternum and in line with the two nipples with was fresh haemorrhage in the subcutaneous fat). She said it would: indeed that was the small area of bruising found by Professor Risdon at post mortem. She did not know whether her CPR could have been responsible for the fracture of the ribs: she did not know, but she said she did not feel any sensation of ribs breaking during the procedure. 18. Later that night the Applicant was arrested at his home on suspicion of attempted murder. At that stage, Rees was still alive, his heart having been restarted by the resuscitation which had been carried out at hospital. When cautioned, t he Applicant (referring to the incident witnessed by Donna) replied “Is it something my daughter could have done?” In his subsequent police interview he recounted the history of Rees’s short life, and the events of the 30 September. He denied that he had ever lost his temper, or had a violent outburst, with either of his children. He had never done anything to Rees which could have caused any broken rib. He said nothing untoward had happened on the 30 September before he found Rees was not breathing. He said that in trying to resuscitate Rees, he had rubbed vigorously on his chest and tapped his back in a way that was not vigorous (“I know he’s only little”); he pressed Rees’s rib cage with finger pressure (“I don’t think it went in very far”). He did not hear anything break and he did not think he had used enough force to break a rib. The evidence which the Applicant gave to the jury was consistent with what he had told the police in interview: he said that there was nothing in his efforts that would have damaged Rees’s ribs. 19. In the meantime, Rees had been transferred to a different hospital. There was no possibility of successful intervention, and on the 2 October life support was discontinued and death supervened. 20. In brief summary, that was the evidence before the jury as to the background. Before embarking on a consideration of the medical evidence, however, it is necessary to underline what was not before the jury. Thus, Donna was not a witness in the case. The Crown, as we have said, did not accept as true any of her accounts of the incident said to have involved her daughter, and did not regard her as a credible witness. She would of course have been a competent and indeed compellable witness for the defence, but was not called, although the jury did hear evidence, not only from the Applicant but from others, as to what Donna had said about that incident and about Rees’s subsequent state of health. Without objection, that evidence included pure hearsay in the form of witnesses reporting what Donna had said to them at times when the Applicant was not present. We can well understand why the Crown took the view that that evidence should all, in fairness to the Applicant, be before the jury. It did not, however, include reference to Donna’s interview by the police or to the DVD recording of that interview as a witness, which included a demonstration of what had transpired between Rees and his sister. The DVD was part of the unused material, and was provided to the defence: no application was made to play it to the jury. We return to this topic later in this judgment. Medical Evidence at Trial 21. It is unnecessary to rehearse the medical evidence that was placed before the jury in relation to the efforts made to resuscitate Rees and care for him prior to his death, or the accounts provided to them by the Applicant and Donna. Suffice to say that the Applicant’s arrest followed as a result of the conclusion reached, from evidence of head injury to the brain and eye (the ‘triad’ of signs) and rib fractures, that Rees had suffered two episodes of trauma which, in the absence of an adequate history to account for them, were non-accidental. Those who examined Rees after his death provided considerable elaboration, and in the light of the present challenges to the Applicant’s conviction, we deal separately and comparatively extensively (but not exhaustively) with the evidence in both of these areas. Brain and Skull 22. On 30 September, soon after his admission to Derriford Hospital, Rees was subject to CT scans of his skull which were reviewed by Dr Neil Stoodley, a Consultant Neuro-Radiologist with a special interest in paediatric brain injuries. He noted a number of subdural bleeds showing up as bright material on the scans and indicating that the bleeds were recent. There was recent blood in the inter-hemispheric fissure on both sides at the back of the head, on the right side of the inter-hemispheric fissure at the front, in the posterior fossa at the back of the head at the bottom, and possibly a small amount of recent haemorrhage over the right frontal lobe. Dr Stoodley concluded that the pattern of recent subdural haemorrhage on these scans was most likely to have been caused by head trauma. There was no evidence of any naturally occurring medical condition which could explain the pattern of bleeding. 23. There was also evidence of bright recent blood at several separate sites within the subarachnoid space, as well as in very small volume over the surface of the brain, in the convolutions of the brain where cerebro-spinal fluid normally sits within the lateral ventricles. The peripheral pattern of small amounts of subarachnoid haemorrhage was itself very typical of head trauma. The appearance of the brain itself showed extensive abnormality, the cerebral hemispheres being darker than they should have been on the scan, and the normal differentiation between grey and white matter largely lost. These appearances were indicative of very extensive hypoxic ischaemic brain injury. Further, the brain itself was not greatly swollen and the spaces within the head normally containing cerebro-spinal fluid were still present on the scan. Bearing in mind that the scans had been performed within about 3 hours of Rees’s collapse, Dr Stoodley concluded that the causative event was likely to have occurred very close to the time of Rees’s clinical collapse. 24. Further, the combination of the recent subdural haemorrhage at different separate sites, together with hypoxic ischaemic brain injury, was (according to Dr Stoodley) most likely due to an episode of head trauma. As to timing, the acute blood could not date back to the time of Rees’s delivery nor, given its appearance, was it likely to be related to his birth and he had, in any event, been delivered by caesarean section and so had not undergone the pressures of a vaginal delivery. The appearances meant that it was possible, although very unlikely, that the relevant event was severe accidental head trauma, but, again, there was no such history in Rees’s case. 25. Dr Stoodley also found evidence of darker subdural fluid over the left cerebral hemisphere. He identified two main possible explanations for that. On the one hand, it was possible that this represented evidence of an older episode of subdural bleeding, which had led to a chronic subdural haematoma. Dr Stoodley’s preferred explanation, however, was that damage to the arachnoid membrane had permitted cerebro-spinal fluid, which is dark, to leak into the subdural space and either collect there or dilute any acute blood present. Dr Stoodley understood that in this case the pathologists had found evidence of subdural membranes, and hence evidence of previous episodes of subdural bleeding, where the blood had resolved itself into healing membrane. Although he accepted that it was possible, he did not accept that this necessarily meant that the darker fluid over the left cerebral hemisphere was a chronic subdural haematoma. 26. For the purposes of his cross examination, Mr Paul Dunkels QC (who then appeared for the Applicant with Mr Robert Linford) was assisted by Dr Waney Squier, a Consultant Neuro-pathologist (who, for reasons to which we shall later refer, did not herself give evidence). Thus it was suggested to Dr Stoodley that the causation of the episode which killed Rees might have been a bleed from the chronic or old subdural haematomas. Dr Stoodley rejected as very unlikely this thesis of re-bleeding, making it clear: “….Occasionally we see episodes of re-bleeding.. that is more recent bleeding into the chronic subdural haematoma or subdural fluid that is present. When one sees that, the pattern of bleeding is that the acute blood bleeds into the chronic sub- dural haematoma. The pattern of acute blood on Rees’s scan was not that of re-bleeding. The acute blood, as I have said, was seen at several different sites at the back of head on both sides of the posterior ……fissure, in the posterior fossa, on the right hand side of the anterior….fissure and probably a little bit over the right frontal lobe as well. The dark fluid, of whatever nature, was seen over the left cerebral hemisphere and so the acute blood …..was not seen in relation to the chronic….re-bleeding is quite uncommon in children and infants with chronic subdural haematomas. I have seen it on a few occasions but it is actually pretty uncommon.” 27. A further proposition put to Dr Stoodley was that the fresh bleeding in the brain could have been a consequence of the leaking of blood from damaged blood vessels, when Rees’s circulation was restored, subsequent to hypoxic ischaemic damage in the 35 minutes between the Applicant noticing that Rees had stopped breathing and the recommencement of circulation in hospital. This came to be termed the “re-perfusion” theory. Intrinsic to this suggestion is the proposition that the hypoxic ischaemic encephalopathy arose from another cause, perhaps unknown. This aetiology for brain injury, said to explain the “triad” of encephalopathy, retinal bleeds and subdural haemorrhages, has come to be known as the “unified theory” or alternatively “Geddes 3”, after its original formulator Dr Geddes. 28. It is clear from the evidence before us that Dr Geddes has herself withdrawn her support for this theory, although (as is evident from her report prepared for the defence in this case and the record of a recent symposium at the Royal College of Pathologists, to which we will later refer) Dr Squier remains a proponent of this thesis as a potential explanation of the “triad”. It suffices to say that Dr Stoodley rejected this explanation as “extraordinarily improbable”. He told the jury that the: “……..hypothesis that hypoxic ischaemic brain injury of itself, and no matter what has caused it, can give rise to acute subdural haemorrhage ……is not what we see in every day clinical experience in cases of infants and children who suffer hypoxic ischaemic non-traumatic ….brain injury. We do not see scan-evident subdural haemorrhage in those cases…..” 29. We turn to the post mortem findings and to Professor Anthony Risdon who spent much of his career as a senior Paediatric Pathologist at Great Ormond Street, with a particular interest in sudden death in infants in their first year of life. Since his retirement from the NHS in 2004, he has practised as a forensic pathologist and, in that capacity, on 5 October 2006, conducted a post mortem examination on the body of Rees Burridge. 30. Professor Risdon’s findings in this area can be summarised as follows. He found a thin layer of subdural haemorrhage over the top of both brain hemispheres, round at the back and below the brain. There was a little sub-arachnoid haemorrhage. There was fresh fluid blood in the subdural space round the whole of the cord and right the way down to the bottom of the cord. Professor Risdon found haemorrhage – fresh red blood – around both optic nerves. The brain substance he found to be very abnormally soft. The fontanelle (that is to say the soft spot on top of the head where the skull bones of a baby have not yet fused), was quite tense to the touch, and the lines of fibrous tissue between the individual skull bones or plates, were considerably stretched, with a little haemorrhage within them. He told the jury this was an indication that the brain underneath was swollen and under tension. Professor Risdon believed that the triad of injury pointed to acceleration/deceleration of the brain and the skull which was non accidental: it was not just the fact of the three injuries but their nature and extent. As to timing, he said that if Rees looked normal and fed on 30 September, he did not consider that the act could have been before that. 31. Evidence in relation to the ophthalmic injuries came from Professor Luthert, the Professor of Pathology at the Institute of Ophthalmology at University College. An examination of Rees’s eyes revealed bleeding in both eyes around the optic nerve, which extended into surrounding tissue. Blood was seen between the optic nerve and the surrounding sheath of dura mater and, inside the eye, he found very extensive bleeding from the front of the retina to the back of the retina, which he described as “confluent”. On microscopic examination, he found cell evidence which suggested a time interval of two or three days between the bleeding and the point of death. Professor Luthert explained the significance of his findings in terms that they were most commonly seen in the context of alleged head injury. Given the other findings in this case, it was his opinion that the explanation for the retinal haemorrhages was much more likely to be trauma, than any of the alternative explanations. 32. To Mr Dunkels, Professor Luthert agreed that, beyond the fact that by definition in relation to cases in which he examined a body, the force was enough to cause death, it was unsafe to link the extent of retinal haemorrhage to the degree of force employed. He was pressed as to whether the retinal haemorrhages might not arise from brain damage caused other than by trauma, on the basis that the suggested sequence was as follows: (1) brain damage arising other than from trauma, (2) leading to brain swelling with raised intra-cranial pressure, (3) causing hypoxic damage to the very delicate blood-vessels in the eye; (4) such damage leading to a failure of auto-regulation when blood flow is restored, for example during resuscitation, meaning (5) that the vessels cannot adjust to the restored flow; and hence (6) bleeding occurs at the point of restoration of blood supply. This again is the “re-perfusion” theory. Professor Luthert accepted that such a mechanism might be an important component in some cases of retinal bleeding, and was a possible cause of retinal bleeding in this case, but in his opinion such bleeds did not occur “anywhere near as frequently as they do when the context is of alleged trauma”. 33. In that regard it is worth adding that Mr Markham, a Consultant Ophthalmic surgeon consulted after Rees’s admission, expressed a similar view. He said that loss of oxygen would not have been sufficient to cause these changes and only sudden and severe intracranial increase of pressure to the brain (such as throttling or some direct trauma such as a blow) would be sufficient: he thought shaking was very unlikely to have been the form of trauma. 34. Dr Brian Harding has been a Consultant Neuro-pathologist at Great Ormond Street since 1983, and is the only full-time paediatric neuro-pathologist in Britain. He also examined Rees’ brain and noted extensive haemorrhage in the subarachnoid space above the brain and below it. The brain was soft and the lowest part of the brain was necrotic or, as he told the jury, “in other words dead and breaking up”. Under the microscope, the brain tissue was “clearly very abnormal” with many little haemorrhages. 35. He also examined the spinal cord from within the back, where he found a lot of fresh haemorrhage around the outside and underneath the dural membrane. In addition, there was chronic subdural haemorrhage, meaning there had been an old bleed which was undergoing repair at a cellular level. There was subarachnoid haemorrhage in the spinal cord, and extending out of the cord itself into the surrounding tissues. This expert examined the spinal cord at chest level, approximating to the region of the ribs. He here noted acute and chronic (fresh and older) subdural haemorrhage and some hypoxic change in some nerve cells. Using a special stain, Dr Harding found some abnormally reactive axons/large nerve cells just where the nerves leave the cord at the “root entry zones”. He also observed a “jagged cavity running out from the central canal of the cord” at the level of the lumbar spine. He agreed this represented possible tearing of the tissue in the cord. Examination of the cranial area revealed a chronic subdural membrane, in other words a reactive process to an earlier haemorrhage, confirming that there had been an older bleed. 36. Dr Harding summarised his findings by saying he had found brain swelling, and further brain damage following the swelling, bleeding around the cord with suggested axonal damage and possible tearing to the tissue in the spinal cord. He noted old and recent rib fractures (to which we shall return), extensive retinal haemorrhages, encephalopathy and subdural haemorrhages and gave it as his view that the “triad of abnormalities” found suggested an acceleration/deceleration injury of some sort to the brain. He added that in this instance there was also evidence of a previous bleed in the brain and previous rib fractures, and concluded that his impression was there had been two times when brain damage had occurred in conjunction with other injuries. Without any clear evidence of something such as a bleeding disorder or severe accidental injury, the evidence suggests “some type of shaking incident”. The acute damage appeared to him very recent and he thought that: “The change in the lumbar cord is most unusual and looks like tissue damage, a tearing of the tissue which suggests that it was a very acute event”. There was haemorrhage at the same point in the lumbar cord with no reaction to the haemorrhage which made Dr Harding conclude that “This was a very rapid, very recent event”. Agreeing that one had to be very cautious about timing, he said that in describing the event as “very soon” before the collapse he meant within hours rather than days. 37. In cross examination, Dr Harding accepted that bleeding at the point of re-perfusion of the brain was probably the cause of at least some of the damage within the brain. He said that it was possible that the old subdural haemorrhage around the spinal cord could have drained from beneath the dura around the brain although this did not alter the timing of the injury. His view was that the ‘jagged cavity’, running from the central canal in the lumbar cord with haemorrhage present within it, was not caused by hypoxic ischaemic damage but “was of a different nature than the other damage to the brain that I saw”. The brain tissue which was damaged had quite a different appearance and was much more severely damaged by lack of oxygen, “whereas this tissue was much more intact apart from this very curious discontinuity which I hadn’t seen before”. He could not put forward a definite explanation for this feature. 38. Mr Dunkels also cross-examined Dr Harding on his findings as to the damage to the nerve cells at the level of the cervical cord. The expert rejected hypoxic ischaemic damage as the cause of these injuries since: “When you see it in a root like this going out from the cord, it is more likely to be some physical pulling on the root, some movement of the root which may be caused by abnormal movements of the cord in the spinal column”. 39. It was suggested that these findings might derive from a shift of the cord down the spinal column as a result of brain swelling, but Dr Harding rejected that explanation. In the context of brain swelling, the shift down would be slow, whereas this damage required a shift which was much more rapid. He could not see how hypoxia would produce that damage. When pressed as to whether subdural bleeding might arise in the context of re-perfusion, he stated that subarachnoid haemorrhage is often seen in cases of hypoxia and re-perfusion but subdural haemorrhage is not normally seen in the context of hypoxia, although he acknowledged that there was “some divergence” of medical opinion on that point. Despite examining brains since 1983, Dr Harding made it clear that he had never seen this type of subdural haemorrhage associated with re-perfusion following severe hypoxic damage although he also found acute haemorrhagic infarction, the consequence of hypoxic damage, in most areas of the brain, and in particular at the back of the brain. Rib Fractures 40. On 7 August 2006, shortly after Rees was born, there was an X ray which revealed no injury to any of his ribs. A further X ray on 30 September (and skeletal surveys on 2 and 5 October) revealed fractures of the 5 th , 6 th and 7 th ribs on the right side in a position closer to (or at) the midline rather than the spine and to the 6 th , 7 th and 8 th ribs on the left side closer to the spine than the midline. Four radiologists gave evidence but were not agreed about the timing of the fractures. Following post mortem examination, Professor Risdon noted fractures surrounded by callus on each of these ribs but also saw what he considered to be re-fractures shortly before death. As to this aspect of the case, he deferred to Professor Anthony Freemont, who is a professor of Osteoarticular Pathology at the University of Manchester. 41. Professor Freemont came to be called by the Crown through an unusual route. He was originally instructed on behalf of the Applicant, although for reasons that will be apparent, after he had expressed his opinion, no further reliance was placed upon him for the defence. Before the trial, however, there was a hearing in family proceedings in which he provided a report and gave evidence and Holman J subsequently made an order permitting disclosure to those concerned in the criminal proceedings of the medical evidence which had been obtained for the purposes of those family proceedings. So it was that the Crown came to learn of the evidence which Professor Freemont could give and the prosecution sought to rely on it. A defence application to exclude the evidence pursuant to s. 78 of the Police and Criminal Evidence Act 1984 was rejected. 42. Professor Freemont explained (and there is no dispute) that his microscopic examination of bone samples allowed him to see things not evident to radiologists who examined the distribution of calcium on an X ray. He said that there were a total of 10 different fractures dated at three different times, that is to say 4-5 weeks before death (left 6 th , 7 th and 8 th ribs), 14-28 days before death (right 6 th and 7 th ribs) and 2-5 days before death ie around the time of Rees’ admission to hospital (re-fractures of left 7 th and 8 th ribs and right 6 th and 7 th ribs with what he described as a fresh fracture of the right 5 th rib). All the experts who were asked said that the bones of a baby such as Rees are pliable and strong so that it would be necessary to exert considerable force to break them. 43. The force required to re-fracture previously fractured ribs (and to fracture the right 5 th rib) was the subject of detailed analysis. In his initial report (prepared for the Applicant’s solicitors), Professor Freemont said: “One rib (5 th right) shows only recent fractures… I have not been able to identify evidence of a pre-disposing cause of fracture (I am assuming that the marrow changes in the left ribs are artefact). As such the force needed to fracture normal bone in a child of this age, in whom the bones are remarkably resilient, is considerable…..Clearly to fracture through an existing and still healing fracture site would require less force, but to break though existing bridging fracture callus would have taken at least moderate force. This might have been the equivalent of the force required during cardio-pulmonary resuscitation. However, this would not explain the recent fracture of the 5 th right rib which showed only signs of a recent fracture. This would have required the same level of force as that involved in the first two fracturing events and much more than is applied during CPR given by trained staff.” 44. In his second report, Professor Freemont addressed the question whether there was any type of structural weakness in Rees’s ribs which would predispose to fracture. He found there was not. In a third report, besides summarising his conclusions, he added: “The incidents of rib fractures occurring following CPR is exceedingly rare.” 45. In the course of his evidence at the trial, Professor Freemont confirmed that there was nothing about Rees’s bones which indicated he was particularly vulnerable to fracture. He stated that: “ … there are two aspects to the strength of ribs in a child of this age. The first is that they have innate strength because of their structural bones but the second is they are also pliable. Not just the bones but the structure around it which supports the bones, and as a consequence of both of those, these are very difficult bones to fracture”. In dealing with the fracture to the right 5 th rib Professor Freemont stated that such a fracture: “… requires more force and is again in the wrong distribution for that for CPR, and whilst I accept that the other two fractures, that is the 6 th and 7 th rib, are through bone that is weaker, I think that it is unlikely they were due to CPR simply because of the amount of new bone that was present ….but anyway they are of the same age as fractures that I do not feel could possibly have been caused by CPR”. 46. In cross-examination Mr Dunkels QC focused on the fracture to the 5 th right rib, and on this witness’s conclusion that it was a fresh fracture. He put to Professor Freemont the conclusions of other expert medical witnesses that there had been an old fracture in the 5 th right rib. Professor Freemont responded by discounting that interpretation, because it was reached on x-ray evidence rather than pathological examination but, in dealing with this difference, Professor Freemont went on to address the condition of this 5 th rib in which he had noted that the medullary cavity also contained haemosiderin so that, at some stage, there had been bleeding into the bone. His report goes on: “Although much of the bone appears woven it has an underlying structure, suggesting this is primary bone and not callus. So what we have here is a rib that shows some features of having been damaged at some time and as a consequence there is new bone within that piece of bone itself. This would show up on X-rays as an excessive amount of bone within the tissue. There is also a fracture through that bone which is recent. It is therefore not unsurprising that a radiologist might consider that because there is a fracture and there is evidence of new bone, that the two are linked. The huge advantage of histopathology, particularly in the hands of some one like myself, who is experienced in these things, is that it is possible to distinguish the relationship between any new bone and any fracture. So my interpretation is, that there is but one fracture and that this is a new fracture, and I could find no evidence of an old fracture, though I can see how radiologists, who themselves disagreed, well some of whom at least initially missed the fracture at that site and others who disagree about the ages of that fracture, might believe that what they have seen is an old fracture. However, the histological evidence is that this is a new fracture.” 47. In the course of re-examination, Professor Freemont added a further passage relevant to the condition of this rib: “Q: If I understand your evidence, and correct me if I am wrong, you are saying that the fifth rib demonstrated some sign of previous damage but that it showed a recent primary fracture? A: That is correct, sir. Q: Yes. So what was the nature and scope of the previous damage of the fifth rib? A: I can’t be certain, but I can tell you the sorts of damage that would lead to these changes. Bending of that rib could lead to haemorrhage into and around the bone. So if the rib is sprung, so it is bent rapidly and then springs back into shape. That can cause tears of the soft tissues that cover the ribs. And that can induce bone formation, but without any fracture. Q: So older bone formation, but without an older fracture …is that right? A: Yes sir. Q: And a new fracture of the primary bone of the fifth rib? A: That’s correct, sir yes.” 48. Professor Freemont was clear that the issue concerning the 5 th right rib was important. He had regarded it as “the key piece of evidence …. [which] was overwhelming”. He said: “What I did was, I gave the one piece of evidence that to my mind quite clearly demonstrated that there were three events of fracturing. However, I have today given other reasons, having now realised that there was a desire to look more closely at this particular one of the three fracturing events …” 49. It is also clear to us from Mr Dunkels’ cross-examination that the defence team were fully aware of the significance of this issue as, indeed, was the judge. He summarised this aspect of the case in this way: “It is a matter entirely for you, but you may consider the evidence of the experts about the ribs shows the following: firstly the X-rays taken at birth show no rib fracture, secondly, there have been not less than two incidents of fracturing and if Professor Freemont and Dr Offiah are right, three incidents. Thirdly, if Professor Freemont’s conclusions are right, there was a new fracture of the fifth right rib which had been previously injured thus producing callus, which suggested to the radiologists that it was a fracture at an earlier stage. Fourthly, considerable force is needed to fracture a child’s ribs; less force is required to re-fracture them. CPR is a possible cause of re-fracturing but extremely unlikely to have caused the fresh fractures. Fifthly, the re-fractures of left seven, left eight, right six and right seven took place two to five days before death, i.e. two to five days before 2 nd October, not two to five days before 30 th September. If Professor Freemont is right, there was also a fresh fracture at right five during that same time span.” The Approach of the Judge 50. We have attempted to summarise the most important (but by no means all) the medical evidence that was called by the prosecution at the trial. Although the Applicant gave evidence, no expert evidence was called on his behalf. In the light of subsequent complaints, rather more is known about the position and it is appropriate to include the detail at this stage. As might be expected, the defence obtained reports from a number of expert witnesses, four in all. In addition to Professor Freemont, two others merely confirmed in their reports the opinions expressed by their prosecution counterparts. The fourth was Dr Waney Squier, whose report, on the face of it, was helpful to the defence and it was initially intended that she should be called as a witness at the trial. She was present in court to hear the evidence of many of the Crown’s expert witnesses, and she was able to, and did, assist Mr Dunkels with material for cross-examination. Ultimately, however, she was not called to give evidence and we deal later with a criticism of the judge’s direction in that regard. 51. It is sufficient at this stage to observe that Royce J provided the jury with an admirable analysis of the medical evidence (which leads us to reject a criticism made to contrary effect). Further, in the course of doing so, while later reminding the jury of the point advanced by Mr Dunkels that the case was not a trial by doctor, Royce J dealt with the medical issues in this way: “You may consider, and it is a matter entirely for you, that the evidence of these experts may be summarised in this way: firstly, they consider that the nature and degree of (1) the subdural haemorrhages, (2) the brain damage, (3) the retinal haemorrhages, coupled with the recent rib fractures points very strongly to non-accidental injury. Secondly, the non-accidental event would have occurred shortly before the collapse or loss of consciousness. Thirdly, anyone doing the physical act which caused the injuries would appreciate it was an obviously and wholly inappropriate way to handle a child.” Appeal 52. Before embarking upon a consideration of the aspects of the case upon which reliance is now placed, the lapse of time is such that it is important to provide a summary of the events following the conviction and thereby to explain why it is now, 2½ years after the conviction, that the application is being considered. 53. At the trial, the Applicant was represented by very experienced leading and junior counsel. After the conviction, they wrote a comprehensive advice on appeal which identified no procedural irregularity during the trial or error of law on the part of the trial judge in summing up. They did, however, express the view that the conviction for murder (rather than manslaughter) was arguably unsafe on the basis that the evidence was insufficient to prove the necessary intent: there was, so it was argued, a ‘lurking doubt’ as to that aspect of the verdict. Counsel referred to features of the evidence bearing on the issue of intent which had been emphasised in the defence closing speech to the jury: for example, evidence that the Applicant was a loving and caring parent, evidence as to the absence of any external mark of injury when Rees was admitted to hospital following his fatal collapse, expert evidence that fatal injury could be caused to a child in a sudden loss of temper with no intention to cause serious injury, and expert evidence that whoever was responsible for the fracturing of Rees’s ribs would not necessarily have been aware that such injury had been caused. Furthermore, they drew comfort from the observations of Royce J who, in his summing up, had carefully reminded the jury of those points, and had added the comment: “You may consider, again it is entirely a matter for you, that those points about intent made by Mr Dunkels have considerable force and point towards manslaughter rather than murder.” 54. The single judge, Rafferty J, considered those grounds sympathetically, but on 10 June 2008 refused leave. She noted that the evidence bearing on the issue of intention to cause really serious injury, including those features of that evidence which were undoubtedly favourable to the defence, were all squarely before the jury for their consideration. Notwithstanding the force of that analysis, on 18 June 2008, the Applicant’s representatives gave notice of a renewal of the application to the full Court. 55. In October 2008, before the renewed application had been further considered by the full Court, the Applicant withdrew his instructions from those who had represented him at trial, and instructed a different firm of solicitors. They, in turn, instructed different leading and junior counsel. So it was that, on or about 9 January 2009, those newly instructed counsel lodged undated grounds of appeal which were presumably intended to replace those previously put forward by trial counsel. These new grounds, which extended to some 13 pages, were to the following broad effect. It was said that the jury had heard “a substantial amount of uncontested and unchallenged medical evidence” in relation to Rees’s injuries; that this was an area of medical practice in which there was a wide spectrum of professional opinion, which spectrum included the possibility of an innocent explanation of the clinical findings; and that the jury “should have had the opportunity to hear the alternative scientific arguments and then decide whether the prosecution case had been made to the appropriate standard”. It was thus submitted that “the conviction is unsafe through error and/or mistake”. In support of these grounds, on 14 January, a further report was submitted from Dr Squier; and evidence was also being sought from further experts. 56. The new grounds of appeal went on to assert that the failure to call Dr Squier was likely to have given the jury the wrong impression that there were no challenges the defence could have made to the Crown’s expert evidence. It was said that Dr Squier’s report “would have formed the basis of cogent evidence”, and that in failing to adduce her evidence, trial lawyers may have made an error or mistake. Complaint was also made that Dr Squier’s points had not been properly or fully explored in cross examination of the Crown’s expert witnesses. 57. Thus two criticisms of trial counsel were being advanced: a failure in the course of cross examination sufficiently to challenge the Crown’s experts; and a failure to adduce before the jury the cogent evidence of Dr Squier. In the circumstances and in the light of those criticisms of trial counsel and solicitors, the Applicant was invited to and did waive privilege. Mr Dunkels QC and Mr Linford provided notes dated the 17 February 2009 responding to the points made in the grounds of appeal. They have subsequently provided further information in response to a number of specific questions. 58. At a later date, a further undated document setting out the grounds of appeal against conviction was lodged by the same newly instructed counsel. These grounds of appeal were in some respects similar to those lodged in about January 2009, but also placed considerable emphasis on the DVD recording of Donna’s interview by the police, which feature had not been mentioned at all in the earlier grounds. It was now asserted that the DVD (a) demonstrated a potential innocent explanation for the development of both head and rib injuries; (b) had not been seen by any of the expert witnesses instructed on either side; (c) may not have been seen by defence counsel; and (d) was not seen by the jury. Thus, it was submitted, the jury had not been given: “… the opportunity to test the expert evidence, or to hear alternative and plausible explanations for the injuries identified at the time of admission to hospital and at post mortem”. 59. In later correspondence, the Applicant’s solicitors said that this was not a ground of appeal based on a criticism of trial counsel for failing to make use of the DVD, but rather a ground of appeal based on the proposition that the importance of the DVD was not manifest at the time of trial. We find this distinction impossible to understand. The DVD had been made available as unused material to those representing the Applicant at trial. Also provided as unused material was a full transcript of Donna’s interview. It is clear from reading the relevant passage of that transcript that she was demonstrating to the police officers the manner in which she was saying that Rees had been thrown to the floor by his 2 year old sister. The submission that the importance of the DVD was not appreciated seems to us to be, in reality, a criticism that trial counsel either did not view the recording, or did not give sufficient weight to it, and thus failed to make use at trial of material which (it is now submitted) was important to the Applicant’s defence. 60. We continue with the procedural history of this application. The reports of Dr Squier, and of a further (new) expert witness Dr Cohen, were served as proposed fresh evidence. On 10 June 2009, there was a hearing for directions before the full court and a timetable laid down for the service of other evidence (which the Applicant’s advisers did not meet). Further, although 21 June 2010 was fixed for the hearing of the renewed application, on 29 April 2010, this date was also vacated. Without descending into detail, both Dr Squier and Dr Cohen had been the subject of serious judicial criticism in an unrelated case in which they had given evidence, and the Applicant’s representatives understandably felt that they could no longer rely on them as witnesses, and so sought an opportunity to instruct other experts. It should be noted that in making that application, and in response to an enquiry from the Court, leading counsel confirmed that there were no non-medical issues to be decided: a further timetable was set. 61. Unfortunately, this revised timetable was also not met by the Applicant’s advisers and, on 23 September 2010, a further application was made to vacate the date fixed for this application, both on the grounds that the evidence had not all been served and because of a clash in the professional commitments of leading counsel. That application was refused, with the result that the finalised expert evidence for the Applicant was only served during the last week of September 2010. As a consequence, the Crown (in the form of Mr Boyce Q.C. and Ms Martin along with the medical experts) have been forced to work to a very demanding deadline to prepare the necessary response for this hearing. In addition, new (i.e. the third) leading counsel had to be engaged on behalf of the Applicant. Mr Henry Blaxland QC was then instructed to lead Dr Thomas (who had originally replaced Mr Linford). 62. This change of counsel led to a further change of direction. On the 4 October 2010, the Applicant by his counsel filed further perfected grounds of appeal and a skeleton argument; these grounds differ substantially from those which were put forward in January 2009. In particular, they do not include any ground contending that the conviction for murder rather that manslaughter was unsafe on the grounds of ‘lurking doubt’ although Mr Blaxland did adopt an argument that, depending on the assessment of the new medical evidence, such a verdict could still be appropriate. We also observe that it was far from clear what ground of appeal, if any, was still being pursued in relation to the DVD recording of Donna’s interview. The only reference to that DVD formed part of a ground of appeal based on fresh expert evidence. That fresh evidence was said to include evidence to the effect: “... that the material contained in the DVD of the ABE interview with the deceased’s mother provides evidence to demonstrate how the incident in which the deceased was thrown to the floor by his elder sister [sic]. This supports the suggestion that this episode is likely to have caused injury to the deceased”. 63. In the light of the lack of clarity about the grounds on which this appeal has been variously pursued and bearing in mind the late date upon which Mr Blaxland became involved in the case, we have felt it appropriate to deal (albeit in some cases, shortly) with the various criticisms which have been made whether or not addressed in oral argument. Given the primacy of the medical grounds, however, we deal first with the application to call fresh evidence. The Fresh Evidence 64. Mr Blaxland seeks to introduce new evidence from a Consultant Histopathologist, Professor Archie Malcolm, and a retired Consultant Physiologist, Dr Paul Johnson. In part, the new evidence is in the area which was covered by Dr Squier (albeit not called before the jury); in part, it is additional to that material in the sense that it deals with propositions which were unknown at the time of the trial (whether or not it was ascertainable had efforts been made to discover it). In response, the Crown have relied upon further material from Dr Stoodley, Professor Risdon and Professor Freemont while also seeking to call Dr Mark Peters, the consultant Paediatric and Neo-natal Intensivist at Great Ormond Street Hospital. We admitted all this evidence de bene esse . Brain and Skull 65. In this area, Mr Blaxland sought to rely on Dr Johnson to undermine the evidence called by the Crown; although Mr Boyce Q.C. for the Crown challenged his expertise, we concluded that he did have relevant experience. His background is as a medical practitioner with early experience (in the 1960s) of neo-natology, including neonatal intensive practice. Much of this experience was in the United States, but in 1968 he returned to England as a research officer in peri-natal physiology based at Oxford University. Between 1981–2005, he held a consultancy at the Department of Obstetrics and Gynaecology in Oxford University, where he set up and ran the “Maternal Infant Healthcare and Telemonitoring Research Centre” at the John Radcliffe Hospital, Oxford. 66. Dr Johnson’s special interest has been the long term monitoring of infants, and research into the effects of environmental factors on foetal and post natal cardio respiratory control, into breathing disorders and heart failure. Much of his work has involved animal research and experimentation. He has no recent experience as an intensivist, nor has he ever had responsibility for extensive neo-natal or paediatric care involving acute emergencies, although he spoke of the experience of the team which he led. In evidence, he indicated that twice or three times a year, the unit for which he had responsibility would have to deal with acute clinical emergencies in children although, since the 1960s, it seems that his own hands-on experience of emergencies has been limited. 67. Dr Johnson explained that he could offer expertise as to the causes or potential causes of hypoxic ischaemic encephalopathy, that is to say, one limb of the “triad”. While he puts himself forward as an expert on ‘encephalopathy’ he does not even suggest that he is an expert on the causes of subdural haemorrhage. In our judgment, he was wise to disclaim such expertise in oral evidence: it was not a disclaimer he had entered at the time of any of his written reports, or indeed before giving evidence. 68. Before summarising the thrust of what Dr Johnson had to say on this issue, we must record our view that he was a most unsatisfactory witness. His reports (consisting of 17, 56, 4 and 13 pages) are diffuse, poorly sourced where they are sourced, hard to interpret, infused by arrogance, and quite unnecessarily combative and dismissive of other experts, including those in fields which are not his own. In order to understand what he was contending, it was necessary for us to ask him to summarise his essential thesis on two sides of A4. Discounting his definition of terms, he did so. 69. Dr Johnson contended that Rees had a tendency to gastro-oesophageal reflux (“GOR”) and that food stomach contents or acid entered his oesophagus. The defence mechanism to such an event is temporarily to shut down breathing, with a corresponding rise in heart rate and blood pressure (so that the brain remains oxygenated) while the contaminant is cleared. Dr Johnson suggests that in cases where the contaminant cannot be cleared quickly, or where there is an over-reaction, apnoea continues and there can be collapse accompanied by a low heart rate (bradycardia). Rees’s older sister had a reported tendency to GOR, although with no significant consequences, and we recognise that there is some historic reported anxiety by Rees’s parents about a similar problem in him, although this complaint was quite unparticularised and arose at a time after Rees’s first undeniable non-accidental injury (if that is dated by the “old” rib injuries). All that said, it is not fanciful to suggest that, at least to some extent, Rees may have suffered from GOR. 70. However, Dr Johnson went on to suggest that in the case of Rees, GOR was a candidate for causing his encephalopathy. On the other hand, (although it hardly needed expert evidence to tell us) it was the very clearest evidence of Drs Stoodley and Peters, and Professor Risdon, all of whom were called by the Crown to address this point among others, that GOR is extremely common. The proposition that Rees was particularly susceptible to GOR is not made out by any concrete evidence and is speculative in the extreme. Even more so, the idea that GOR led to his encephalopathy is quite unproven: furthermore, there is no proven example of GOR leading to retinal bleeding or subdural haemorrhages, even in those who have previously had subdural haemorrhage. 71. Further, as Dr Stoodley has pointed out, there is an incidence of subdural haemorrhage in normal babies, delivered at term, of between 9% and 46%. Thus, subdural haemorrhage must be regarded as a frequent side-effect of the stresses of delivery. Since GOR is a common phenomenon, if the normal physiological response to GOR, in the form of a spike in blood pressure, could cause in the new-born a re-bleed at the site of earlier subdural bleeding, that complication would be well-recognised. It is not well-recognised. On the contrary, it is unreported in the literature. 72. Doctors Stoodley and Peters, and Professor Risdon, all confirmed that they knew of no instance where the triad had been observed and was thought to be the consequence of GOR. Doctors Stoodley and Peters regularly review the images of, and care for, neo-nates who have had subdural bleeds. Neither of them has ever seen a re-bleed thought to be the result of GOR. 73. There is in our judgment a further crucial point. As set out in the evidence of Professor Risdon, the acute subdural bleeds sustained by Rees at the time of his collapse were at specific sites around the brain. We have set out that evidence above. These were not the sites of previous bleeding. While of course blood may migrate around the surface of the brain and down the spinal column, bleeding sites do not. 74. In the circumstances, we reject the explanation offered by Dr Johnson as fanciful and do not admit his evidence, the quality and tone of which did not assist us. Indeed, if advanced before a jury, his views were much more likely to obfuscate rather than elucidate. Those charged with assessing the remuneration to which he is entitled from public funds should pay careful attention to the extent to which it is directed to evidence based on his established expertise rather than argument and comment. 75. We must deal with one other aspect of Dr Johnson’s report, for he referred to a recent meeting organised by the Royal College of Pathologists, addressing the “triad” of evidence in traumatic head injury in children. It was convened on 10 December 2009. Present were a number of experts who have been concerned with this case including Dr Waney Squier, Dr Marta Cohen, Professor Luthert, Professor Risdon and Dr Colin Smith. This discussion did not reach a complete consensus. However there was some degree of agreement which was expressed in the paper in the following terms: “It was agreed that the following post-mortem findings would lend support to a suggestion of mechanical trauma to the head: • Bilateral optic nerve haemorrhage of the point where the optic point enters the globe. • Histological changes in the brain indicating mechanical damage rather than ischaemic damage (though there was not agreement on how easy or reliable such histological assessment may be). • Other post-mortem evidence of cranial trauma or extra cranial trauma. It was agreed that the following post-mortem findings would indicate a need for greater caution in suggesting that there had been significant mechanical trauma to the head: • One or more elements of “the triad” being absent. • One or more elements “of the triad being present” in a limited or a typical form ….. • Young at age of death (interpreted as under 3 months, with particular caution being needed in cases young enough for birth trauma or hypoxia to be a possible explanation for the post-mortem findings) It was agreed that in some cases where death is undoubtedly due to head injury, some or all of the components “the triad” may be absent” 76. The debate summarised in the College meeting underscores the need for caution in this difficult area. As more than one of the Crown’s experts emphasised to us, the “triad” must not be used as a tick-box exercise. In addition, the implications of the presence of the ‘triad’ must be approached with specific caution when the child in question was under three months of age, because of the risk that subdural bleeding may have been derived from the birth process. Dr Stoodley underscored this cautious approach by emphasising that it was the quality and extent of the evidence that mattered. He himself acknowledged he had seen children where there was no question of non–accidental injury, but who had some encephalopathy, some bilateral retinal haemorrhage and some subdural bleeding. Whilst the presence of all the signs in the “triad” lends support to the suggestion of mechanical trauma to the head, such findings must be placed in context, analysed and carefully considered particularly in a child as young as Rees. As this court emphasised in R v. Henderson [2010] EWCA Crim 1269 , there is no room for trial by expert and in many cases the evidence including the expert evidence, may be insufficient to exclude beyond reasonable doubt an unknown cause of death. We bear these cautionary remarks very much in mind. Rib Fractures 77. Professor Malcolm is the Professor of Clinical Pathology at Newcastle University and, as a Consultant Histopathologist, is (in common with Professor Freemont) an expert in bone pathology. It was common ground that this expertise (rather than that based on radiographic or other imaging of fractures) provided the best evidence on rib fractures. As Professor Malcolm puts it: “The complex cellular response to a fracture can be viewed histologically and therefore the ageing of a fracture is much more accurately assessed using histology, particularly in more recent fractures” 78. In a joint discussion prior to the hearing, Professors Freemont and Malcolm reached a fairly high degree of consensus, which was reduced into writing. Thus, it was agreed that Rees’s ribs show evidence of significant trauma occurring 4 to 6 weeks before death some of which were in the posterior segment of the ribs (6 th , 7 th and 8 th ribs on the left side) and that, other than in major accidental trauma such as a fall from a significant height or a car crash, such fractures are seen only in non-accidental injury. So it was common ground that Rees sustained non-accidental injuries to these ribs on at least one occasion 4 to 6 weeks prior to his death. 79. The Professors also agreed that there are fractures to the right 6 th and 7 th ribs in an antero-lateral position (on the side, roughly in line with the armpit). As Professor Risdon told the jury, these injuries are in a line, and are therefore associated. Professors Freemont and Malcolm agree that the fracture callus in these two fractures differs from that found in the left-sided injuries. However, their interpretation of this finding differs. Professor Freemont suggests the difference indicates two ages of fracture: left sided fractures at 4 to 6 weeks before death, and right sided fracture 2 to 4 weeks before death. Professor Malcolm accepts that explanation may be correct. However, he prefers the explanation that these five ribs were all injured at the same period, some 4 to 6 weeks before death, and the difference in the callus formed derives from a differential amount of movement after fracture, between the right sided fractures close to the spine (which are therefore more stable) and the left sided injuries much farther forward in the body and much farther from the spine (and therefore somewhat less stable). What is, however, agreed is that these injuries demonstrate at least one and perhaps two episodes of multiple non-accidental rib-fractures, weeks before Rees died. 80. In their discussions before the appeal, these two experts also agreed that the five ribs so far discussed were all re-fractured in the period 2 to 5 days before the death (that is to say, coincident with 30 September 2006). They agreed such disruption of previously fractured but healing ribs could possibly be caused by CPR but differ in their views of how likely that explanation is. Professor Freemont considered it unlikely, and he would expect more force to be required than would be produced by normal CPR; Professor Malcolm suggested this could perfectly possibly be the explanation. These experts in discussion before the hearing could only reach a broad view on this point with reference to “conventional” CPR. Their positions were refined in the course of evidence before us. 81. The significant disagreement between the bone pathologists is in relation to the fracture to the 5 th right rib. It is agreed this was fractured 2 to 5 days before death, in other words at a time consistent with the re-fracture of the adjacent ribs on the right, and the three ribs re-fractured on the left. We note the position of this fracture, which is in the antero-lateral position and in line with those to the other right ribs. Professor Freemont considers that the bone here fractured was normal bone, or at least bone of normal strength. In his view, this means this was clearly not caused by CPR, in part because it was a fracture of normal bone, not a re-fracture of an older healing injury. Fracture of normal bone, he says, would require more force than is applied in the course of conventional CPR: with that proposition, when he gave evidence, Professor Malcolm agreed. 82. Professor Malcolm’s disagreement is evident from his view that this was a recent displaced fracture through abnormal and consequently weaker bone; thus he accepts it could have been caused by recent non-accidental injury, but it could also be the result of CPR, at least if the CPR was “pretty zealous” (his words). Properly understood, therefore, the crucial issue between these experts in respect of this injury is: was the fracture of the 5 th right rib a break of bone of normal strength, and thus a recent non-accidental injury, or was it a fracture or re-fracture of abnormal, perhaps previously fractured bone, which even then might be a fresh non-accidental injury but might be the consequence of pretty zealously administered CPR? 83. In his report Professor Malcolm gave his conclusions on this rib in the following terms: “There is a complete displaced fracture of the bone with some haemorrhage and fibrin which is 2-4 days prior to death….this fracture is through abnormal bone. The medullary bone is very thick and is mainly woven (primitive or immature) bone which is undergoing marked remodelling and some of the marrow shows fibrosis. There is no significant periosteal reaction. The other ribs appear [to be] of normal construct apart from healing fractures and so it is unlikely that this is a developmental abnormality. It could be late stage healing of an old undisplaced crack fracture of rib with almost exclusive medullary callus, the small amount of periostal callus having been removed. If so this would be 4-6 weeks old. … …..the right 5 th rib is abnormal as is indicated in Prof Freemont’s report. There is increased medullary bone, much of which is woven with a small amount of lamellar bone. The most likely explanation for the abnormal appearance of this rib is a small healing undisplaced crack fracture with medullary callus only, 4-6 weeks old…..Only the 5 th rib trauma would require any significant force. Although the right 5 th rib had more bone than normal, it is woven bone which is not formed along the lines of stress but formed in a rather haphazard fashion and therefore it is mechanically weaker than a weaker bone. (CF Paget’s disease of bone, more bone but the bone is weak). Irrespective of whether this is a healing fracture, or another condition, the right 5 th rib is structurally abnormal and would fracture more easily than normal. … ……The 5 th right rib has a recent displaced fracture through abnormal bone, this bone being weaker than normal bone. This could be a recent non-accidental injury or the result of the cardio pulmonary resuscitation.” 84. In oral evidence, Professor Malcolm’s key points, in addition to those summarised above, are as follows. There would have to be a significant injury short of a fracture to cause the amount of medullary bone to be found in the 5 th right rib. If the original injury to this rib had been an old healing crack fracture, he would not expect there to be any subsisting periosteal reaction by the time of examination. Although woven or immature bone is found in infants at the growth plate of a bone, he would not expect to find woven bone at this site in the middle of the bones. In giving his evidence in chief, Professor Malcolm could not volunteer any injury short of an undisplaced crack fracture which would give rise to this amount of woven bone in the medullary cavity. However, when a passage was put to him from one of Professor Freemont’s reports suggesting that there were other ways in which medullary callus might be stimulated to form, he was prepared to accept the proposition. 85. We have set out Professor Freemont’s primary evidence above. To this court, he restated his view that the 5 th right rib had never been fractured. In addition to the reasoning given in his earlier evidence and reports, he added one or two salient points. Damage short of fracture but so as to cause the additional bone growth could be explained by “flexing” the rib, something which could easily be consistent with fractures at an adjacent site to the other two ribs. The absence of signs of inflammation or damage in the periosteum was significant since all the “old” fractures had continuing periosteal signs at post-mortem. Professor Freemont suggested that this probably meant the 5 th right rib had never been fractured, but he added that if it had been fractured, the absence of periosteal signs meant that it was almost completely healed and therefore of essentially normal strength. Even on the latter basis, in his view this fracture could not have been caused by a normal level of CPR, or by the CPR described in this case. 86. Professor Freemont added that the site of this fracture was outside the normal distribution of fractures (rare though they are) caused in the course of CPR. He said the place where such fractures occur is near the anterior end of the rib which is joined to the breast bone by cartilage. Because CPR is administered by depressing the breast bone (we take it whether by finger pressure or by squeezing the chest) the biggest flex is nearest the breast bone. Here the fracture of the 5 th right rib (and the fractures to 6 th and 7 th ribs) is to the side, in line with the armpit. 87. In answer to Professor Malcolm’s point that there was a high amount of woven (as opposed to lamellar) bone at this point in the 5 th rib, Professor Freemont pointed out in his view there was also a high level of woven bone in the cortices of the 6 th and 7 th ribs. We understand the significance of this to be that, despite that finding, all the experts were agreed that the original fractures of those ribs were definitely caused by the use of unlawful force. Regrettably, this point was never put to Professor Malcolm. 88. Taking Professor Malcolm’s view at its highest, therefore, in order to exclude his possibility that the fracture of the 5 th right rib might have been caused by the CPR administered either by the Applicant or the staff nurse on admission (the full descriptions of which we have set out above), consideration has to be given to the question whether that could be described as “pretty zealous”. In that regard, it emerged that Professor Malcolm had never been shown the evidence concerning the handling of Rees by the Applicant and the staff nurse attempting resuscitation in hospital, (putting him in a different position from Professor Freemont, who saw and heard the witnesses). The evidence given by the applicant was put to Professor Malcolm and he agreed that description sounded “mild”. From the description given, it sounded to Professor Malcolm that it would be unusual for that to cause a re-fracture never mind a fresh fracture. He felt that the description given “did not sound as though very significant pressure had been used”. Mr Blaxland invited us to consider that there might have been a natural tendency on the part of a father charged with murder to diminish the description he gave of the force used. We do not understand why that should be so, given that he certainly knew by the time he gave evidence that Rees had suffered recent fractures of his ribs. 89. As to the description by the staff nurse, he believed that the bruise demonstrated that the attempts at CPR had been “clearly reasonably forceful”, but Professor Malcolm agreed that since the pressure was on the centre of the chest, he would not expect such CPR to cause this injury. He did point out that although the CPR was mounted at a site relatively remote from the fracture site to the 5 th right rib, pressing on the centre puts stress all around the rib cage. 90. That was not the only evidence about the force required to cause the rib injuries that we heard. In addition to the views of Professors Freemont and Malcolm, Professor Risdon (who deferred to the histopathologists on interpreting fractures but not necessarily on causation) said that almost every child upon whom he had performed a post mortem had been extensively resuscitated. He went on: “Amongst the children on whom we have performed post mortems there are a number who will have rib fractures. Some of those will be old rib fractures and some of them will be more recent. But when you examine these fractures at post mortem the more recent fractures have not occurred at the same site as the old ones… The re-fracturing at the site of an old fracture is actually quite an unusual event. So my interpretation at the time that I did the post mortem was that the fresh fractures here were a result of another squeezing episode that might well have been part of the injury that caused the head injury. Now, I perfectly accept that one cannot absolutely exclude the possibility that they might have been related to resuscitation but I would contend that the other suggestion that head injury occurred where the child was picked up and squeezed that is the explanation for the fresh fractures.” The court was subsequently informed that research which Professor Risdon believed supported this thesis did not, in fact, do so but we do not accept that this undermines the nature of his evidence on this point. 91. We also heard evidence relevant to the question of CPR from Dr Mark Peters, the Consultant Paediatric and Neo-natal Intensivist at Great Ormond Street Hospital. Dr Peters has worked in tertiary paediatric intensive care since 1994 and is involved in the care of 1,500–2000 episodes of critical illness in children every year. He and his team have very frequent, literally hands-on, involvement in resuscitation of critically ill neo-nates and young babies. Dr Peters emphasised to us the necessary vigour of resuscitation. He said that he himself was pretty fit, but was unable to sustain appropriately vigorous resuscitation for more than about 5 minutes, and hence resuscitation was conducted by a rotating team of staff. In his unit, staff are taught that two finger resuscitation of the kind administered by the staff nurse in this case is not regarded as optimally vigorous and the preferred method is to resuscitate by squeezing the chest of the infant with both hands. Dr Peters has done that on very many occasions and never broken a previously unbroken rib. He has performed that kind of resuscitation on numerous patients who already have fractured ribs, perhaps mostly ribs surgically fractured for the purpose of cardiac or other operations. This evidence gives some important context to the clash of opinions between the histopathologists as to the potential impact of the CPR administered to Rees and adds colour to Professor Malcolm’s description of what must be “pretty zealous”. 92. We draw together some of the threads concerning the rib injury as follows: Professor Freemont and Professor Malcolm were both extremely well qualified experts who at all times did their best to help the Court. The pathologists are undoubtedly better positioned than any other expert in deciding whether the 5 th right rib had, or had not previously been fractured. There is a genuine professional difference between the two on the point, although each accepts that the other might be right. There was clearly some previous abnormality in the 5 th right rib but unless the rib was weakened, all are agreed it would not be broken by any CPR, even zealous CPR. 93. In the end, Professor Malcolm is not able to say with confidence that the presence of woven bone at the relevant site can only be explained by inferring a previous crack fracture. The alignment of the fracture site in the 5 th right rib with the acknowledged previous fractures in the 6 th and 7 th ribs would tend to associate the previous episode of damage to the 5 th right rib with the same incident which caused those earlier fractures. However, the alignment does not serve to distinguish a previous undisplaced crack fracture from a previous flexing or stressing of the rib causing damage short of fracture. 94. There is one further element of the picture to which it is appropriate to refer before considering the effect of this evidence. Professor Risdon made the valid point: “[T]here is a huge difference in the legal approach to a problem and the medical one. The lawyer always takes each component of a problem and then tries to beat it to death. Could this happen in other circumstances? Yes. But the doctor does exactly the opposite. They take the components of the problem and they try and assemble it into a plausible whole. That is where the difference is.” The Approach to Fresh Evidence 95. The material governing principles are set out in s. 23 Criminal Appeal Act 1968 , as amended by the Criminal Appeal Act 1995 , (“ the 1968 Act ”) in these terms: “23.─ (1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice─ a) … b) … c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to─ a) whether the evidence appears to the Court to be capable of belief; b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is subject of the appeal; and d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” 96. The ambit of the provision is most clearly expressed in R v Steven Jones [1997] 1 Cr. App. R. 86 by Lord Bingham CJ when he said (at 92G): “[ s.23 as amended] makes plain that in the exercise of its discretion whether to receive evidence or not the court must be guided above all by what it considers necessary or expedient in the interest of justice. The section does however acknowledge, in subsection (2)(d), the crucial obligation on a defendant in a criminal case to advance his whole defence and any evidence on which he relies before the trial jury. He is not entitled to hold evidence in reserve and then seek to introduce it on appeal following conviction. While failure to give a reasonable explanation for failure to adduce the evidence before the jury is not a bar to reception of the evidence on appeal, it is a matter which the court is obliged to consider in deciding whether to receive the evidence or not. The Court has in the past accepted that section 23 may apply to expert evidence, and we would not wish to circumscribe the operation of a statutory rule enacted to protect defendants against the risk of wrongful conviction. But it seems unlikely that the section was framed with expert evidence prominently in mind. The requirement in subsection (2)(a) that the evidence should appear to be capable of belief applies more aptly to factual evidence than to expert opinion, which may or may not be acceptable or persuasive but which is unlikely to be thought to be incapable of belief in an ordinary sense. The giving of a reasonable explanation for failure to adduce the evidence before the jury again applies more aptly to factual evidence of which a party was unaware, or could not adduce, than to expert evidence, since if one expert is unavailable to testify at a trial a party would ordinarily be expected to call another unless circumstances prevented this. Expert witnesses, although inevitably varying in standard and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury. If it is said that the only expert witness in an established field whose opinion supports a certain defence was unavailable to testify at the trial, that may be thought (save in unusual circumstances) to reflect on the acceptability of that opinion.” 97. This latter difficulty was also discussed in R v. Kai-Whitewind [2005] 2 Cr App R 31 , R v. Meechan [2009] EWCA Crim 1701 and R v. Henderson [2010] EWCA Crim 1269 the latter of which underlined that a conviction can only be regarded as safe if the case proceeds on a logically justifiable basis, including the acceptance or rejection of expert evidence, that evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause and that, although appeals should present an opportunity to call new experts in the hope that they might do better than those who had been rejected or (as in this case) whom the defence had chosen not to call, it is difficult to exclude new medical evidence which is both cogent and relevant on the basis that it should have been called at trial (see paras. 1 and 3 per Moses LJ). 98. Thus, considering those principles, the first stage is to consider whether evidence heard de bene esse should, in fact, be received either because it satisfies the criteria set out in s. 23(2) of the 1968 Act (which, in the context of this case concerning expert evidence is likely to mean whether there is a reasonable explanation for the failure to adduce the evidence at trial), or whether it is appropriate to go beyond the particular considerations set out in s. 23(2) to the wider interests of justice as left open by s. 23(1) and clearly relied upon in Henderson . If a decision is made to receive the evidence, the second stage is to determine whether it appears to the Court that the evidence affords any ground for allowing the appeal on the basis that although contained within s. 23(2) , if it does not afford a ground for allowing the appeal, the material takes the case no further. 99. That brings the court to define the grounds for allowing an appeal on this basis, the principles of which are set out in a number of authorities at the forefront of which is R v. Pendleton [2001] UKHL 66 ; [2002] 1 Cr. App. R. 34; [2002] 1 WLR 72 (per Lord Bingham of Cornhill, at page 83, paras. 18 and 19) which was followed by this court in R v. Hakala [2002] EWCA Crim 730 and R v. Hanratty [2002] EWCA Crim 1141 , [2002] 2 Cr App R 30 . This line of cases was cited in Dial & anor v. State of Trinidad and Tobago [2005] UKBC 4; [2005] 1 WLR 1660 by Lord Brown of Eaton-under-Heywood who gave the judgment of the majority (the others being Lord Bingham of Cornhill and Lord Carswell) and put the matter in this way: “[31] In the board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view ‛by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict’: R v Pendleton [2002] 1 All ER 524 at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP [1973] 3 All ER 762,[1974] AC 878 at 906, and affirmed by the House in R v Pendleton: “While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]” [32] That is the principle correctly and consistently applied nowadays by the Criminal Division of the Court of Appeal in England – see, for example, R v Hakala [2002] EWCA Crim 730 , R v. Hanratty, decd. [2002] 3 All ER 534 and R v Ishtiaq Ahmed [2002] EWCA Crim 2781 . It was neatly expressed by Judge LJ in R v Hakala , at para.11, thus: “However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe” 100. That approach was adopted in R v. Harris [2006] 1 Cr App R 5 (see per Gage LJ at para. 101) and it has been recognised that the “emphasis [in Dial ] was put in a slightly different way” ( R v. Dunn & ors [2009] EWCA Crim 1371 per Goldring LJ at para. 111). Mr Blaxland, however, went further and submitted that Dial weakened the rigour of the test identified in Pendleton as exemplified by the fact that Lord Steyn (who had been party to the decision in Pendleton ) dissented. In fact, Lord Steyn did not specifically challenge Lord Brown’s analysis of the law but strongly disagreed with the majority on the approach to the specific facts of the case. Thus, the majority took the view that the Court of Appeal of Trinidad and Tobago had been entitled to conclude that a proved significant lie by the main identifying witness was not so central to his identification as to throw real doubt upon it and so render the verdicts unsafe. Lord Steyn (and Lord Hutton) concluded that the Court of Appeal had not considered how the jury would have viewed the potential impact of the lie on the overall truthfulness of his evidence. They also identified further reasons which they considered undermined the safety of the convictions. 101. Furthermore, as to the principle, it is important to underline that Lord Bingham was part of the majority judgment articulated by Lord Brown and would hardly have been so had he considered that the analysis of Pendleton and the subsequent decisions was not both accurately reflected and fairly illuminated by Lord Brown’s exposition of the law. We have no doubt that it was: both in Stafford v DPP and Pendleton , the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to “test its view” as to the safety of a conviction. Analysis 102. As Lord Bingham made clear in R v Steven Jones , the scheme of s. 23 of the 1968 Act is not designed with expert evidence in mind not least because Professor Malcolm was clearly available at the time of the trial but, having received an adverse opinion from Professor Freemont, it is understandable why it was felt that it would be inappropriate to instruct a further expert. In that regard, ‘expert shopping’ is always to be discouraged and although public funds should always be available to instruct suitable experts when defending a criminal prosecution, it is less clear whether such funds should continue to be expended in seeking further expert evidence (in the hope of finding someone to say something different) after conviction. Thus, in this case, four experts were instructed at the time of the trial; at least six experts (five of whom were new to the case) have provided further evidence for the Applicant’s present advisers, of whom two have been called. On the other hand, if fresh credible expert evidence has, in fact, been obtained which does provide a real argument as to the safety of a conviction, it is almost inconceivable that the court should not fully consider that evidence and its implications, not least to avoid the risk of what would be a miscarriage of justice. Ultimately, the court will evaluate the material placed before it: this means that it must be for the authority responsible for the provision of public funding to set out clear guidelines as to the circumstances in which new experts may be instructed after conviction and for steps to be taken to ensure that, whether an approach is to the Legal Services Commission or the Registrar of Criminal Appeals, common standards are understood and applied. 103. As for this case, there is no doubt that Professor Malcolm provided admissible evidence which is capable of belief; the real issue, therefore, is to evaluate its importance in the context of the remainder of the evidence in the case and thus determine whether it renders the verdict of the jury unsafe. Considering first the fifth rib, we recognise Professor Malcolm’s theoretical analysis of the strength of the 5 th right rib on 30 September. Putting Professor Freemont’s view to one side, it remains necessary to consider the force used in CPR (which was a question left by Royce J to the jury). Professor Malcolm did not suggest that the Applicant’s description of the CPR performed on Rees could possibly account for injury and, although he took a slightly different view in relation to the staff nurse (while accepting that this fracture required more trauma to cause it than the others without suggesting that it did), the evidence of Professor Risdon and Dr Peters, speaking from their different perspectives, in our judgment, moves Professor Malcolm’s possibility into the realm of the theoretical rather than the realistic. 104. That is not all, because it is also important to consider the contextual facts. These are as follows. First, Rees was born by elective Caesarean section such that it was extremely unlikely he suffered birth injury and, in any event, he exhibited no signs thereafter or during his short life of having sustained birth injury. Second, Rees saw numerous (and different) medical professionals over the weeks. Although there were some concerns, save for the GOR (which we have rejected) it has not been suggested that any of his other symptoms suggested an underlying pathology (and, in particular, a neurological pathology). Third, at what at the latest was 4 weeks of age, it is beyond doubt that Rees suffered multiple rib fractures as a consequence of non-accidental injury: the incident with his sister simply could not have caused the injuries that he had sustained. There is also historic subdural bleeding, which, although theoretically consistent with the time of birth (rendered even more theoretical because birth was by caesarean section), is much more easily associated with the known earlier non-accidental injury. Fourth, Rees behaved entirely normally throughout 30 September: he fed normally and appeared content, capable of following the movement of Mr Randal’s hand. Fifth, if the Applicant’s account is to be believed, Rees continued to be normal and was so when he sent the text to his wife at 7.44 pm asking where she was; it was only thereafter that he noticed that Rees was clearly unwell and by 8.12 pm he was at the hospital; if that is right, the deterioration was extremely sudden. Sixth, even on Professor Malcolm’s most favourable thesis, there is re-fracturing of six ribs which are easily compatible with further non-accidental injury, it only being, as we find, theoretically possible that it was associated with CPR as described at the hands of the Applicant and the staff nurse. 105. Returning to the test, although we accept that Professor Malcolm provides a new consideration of the injury to the 5 th rib, we reject the submission made by Mr Blaxland that this, of itself, is sufficient to quash the conviction on the grounds that had he been called to give evidence, the jury may have had some doubt about the conclusions of Professor Freemont that CPR could be excluded as a cause of all the re-fractures. In our judgment, on the issue of the use of unlawful force on Rees (a requirement for any conviction), we do not accept that this new evidence impacts on the circumstances sufficiently to affect the decision of the jury on the issue of whether unlawful force was used. Paying full attention to the strictures in Henderson to which we have referred, in the light of all the circumstances, we consider the possibility that this triad of injuries arose from encephalopathy of unknown cause (whether associated with GOR or not) to be so vanishingly unlikely that it can be rejected entirely; furthermore, this conclusion is not affected by the theoretical possibility, as we find it to be, that the 5 th right rib might not have required as much force to fracture it as Professor Freemont believes. To modify Professor Risdon’s observation as to the approach of doctors, this is the effect of taking the components of the incidents and analysing the clarity of the picture that emerges. 106. That is not a complete end of the matter because Mr Blaxland also argued that even if his primary submission was to be rejected, given the uncertainty about the degree of force necessary to cause the triad and the fact that the evidence of the degree of force used on 30 September was heavily dependent on Professor Freemont’s conclusions as to the 5 th right rib, even if the evidence of Professor Malcolm did not impact on the validity of the conclusion as to unlawful force, it did impact on the issue of intent with the result the conviction for murder is unsafe and a conviction for manslaughter ought to be substituted. Mr Boyce Q.C. argued that given the unlawful use of force on 30 September leading to injury to the ribs, it was an inevitable inference that the Applicant had also caused the earlier fractures which certainly required considerable force with the result that it was open to the jury to convict of murder. 107. It is common ground that it is not possible to reach a conclusion as to the degree of force likely to be necessary to cause the triad of injuries which ultimately led to Rees’s death. The prosecution case (as summarised by the Judge) was that the unlawful act “was likely to have been shaking or a shake plus throwing Rees against a soft surface or simply throwing against a soft surface” Save for Dr Markham (who spoke of trauma such as throttling or a blow) the balance of opinion (expressed by Dr Stoodley) was that the injury resulted from a shaking mechanism of a type that “the degree of force applied to a two month old child would be obviously inappropriate”. 108. It was this that led Royce J to deal with intent in the way that caused counsel initially instructed to mount an appeal. As the conclusion of his summing up, he dealt with Mr Dunkels' speech in this way: “He went on to say that if you were against him in that proposition, you would have to look at the defendant’s intent at the time he caused the injuries. He pointed out that nothing which had happened before 30 th September would have revealed to the defendant or the perpetrator that death or really serious injury would result, for example, from tight squeezing or the like. Secondly, he pointed to Dr Chapman’s evidence that rib fractures of this sort usually happen when a child is crying and the child may continue to cry after the ribs have been fractured. Thirdly, he pointed to Professor Risdon’s evidence that these shaking or throwing injuries probably occur when the carer loses his temper, perhaps for a short time, without intending to cause death or really serious injury. You may consider, again it is entirely a matter for you, that those points about intent made by Mr Dunkels have considerable force and point towards manslaughter rather than murder.” 109. It is not suggested that Mr Dunkels’ summary of the evidence was not accurate which generates the question: what was the evidence from which the jury could infer intent to cause really serious injury? In reality, it was the possible inference that could be drawn from the ‘shaking or throwing’, together with Professor Freemont’s evidence that considerable force was required to fracture the 5 th right rib which he considered to have been effectively contemporaneous with whatever injury caused the triad. We have rejected the proposition that this fracture could have been caused by CPR and concluded that there is no basis for interfering with the finding of unlawful force but that is not to say that Professor Malcolm’s evidence might not have affected the conclusion to be drawn as to manner in which the unlawful force was inflicted. Given the paucity of the evidence as to the necessary force to cause the triad, there is a risk that the jury would have used the emphatic degree of force of which Professor Freemont spoke in relation to the right 5 th rib as a proxy to determine the Applicant’s intention at the time of shaking or injuring Rees in such a way as to cause the triad. As Professor Malcolm had ‘softened’ the extent to which emphasis could be put on the fact that the right 5 th rib was of normal strength, the question is whether the inference of intent may have been approached differently. Although we have some real hesitation, we are not prepared to conclude that the conviction for murder (as opposed to a conviction for manslaughter) remains safe. In that regard, we are particularly mindful that the original defence team had mounted an appeal on the basis of ‘lurking doubt’ and although that ground, on its own, would not have caused us to take a different view, the gloss provided by Professor Malcolm plays into the same issue. Other Grounds of Appeal 110. Before reaching a final conclusion, we must turn to the other points raised both in the perfected grounds of appeal, and in earlier grounds, not all of which were pursued in oral argument before us, although none appeared formally to have been abandoned. 111. The first concerns the criticism of the approach in cross examination to the Crown’s expert witnesses. Both from an analysis of the judge’s summing up, a consideration of those transcripts which we have seen and a view of some of the material available to Mr Dunkels, we have no doubt that Mr Dunkels did cross examine prosecution experts in those areas in which it was legitimate to believe that progress could be made. Dr Squier was, of course, present in court during the evidence of a number of the Crown’s experts, was plainly able to assist counsel in his cross examination and clearly did so. Without needing to go into detail, and without confining ourselves to the matters which were within Dr Squier’s field, we note that the matters raised in cross examination included the possibility that ribs may have been fractured or re-fractured during the attempts at resuscitation on 30 September; possible explanations other than trauma for intracranial bleeding, such as a subdural haemorrhage existing at birth, or reperfusion through damaged capillaries when Rees’ breathing was restarted at hospital; and the existence of controversy within the medical profession as to the significance which should be attached to a finding of the triad. It seems to us that Mr Dunkels put all relevant points, and in doing so achieved as much success as could realistically be expected given the strength of the medical evidence in support of the Crown’s case. 112. Those now appearing for the Applicant rightly do not pursue the criticisms as to the adequacy of cross examination. We recognise that counsel who settled the new grounds of appeal had not had an opportunity to see the transcripts which have subsequently been obtained. In those circumstances, we merely say that the criticisms which were initially made are without substance, and afford no possible basis for regarding the conviction as unsafe. 113. The second ground which we consider is based on the fact that Dr Squier was not called to give evidence is concerned. In this regard we are assisted by the notes which have been provided by Mr Dunkels QC and Mr Linford. These notes incorporate the relevant passages from contemporaneous attendance notes made by their instructing solicitors. It is entirely clear that that there was good reason for the decision which was taken not to call Dr Squier to give evidence. 114. It had been the intention of those representing the Applicant at trial that Dr Squier would be called as an expert witness. Indeed, at one point in his cross examination of Professor Risdon, Mr Dunkels said, with reference to Dr Squier, “I think when we hear from her she will tell us…” The notes indicate however that the intention of calling her was abandoned as a result of a consultation with Dr Squier after the Crown’s experts had completed their evidence. Dr Squier then indicated that she would not now be in a position to give evidence which would assist the Applicant’s case. It was apparent moreover that if cross examined about certain points the answers she would have to give could be positively damaging to the Applicant’s defence. Crucially, Dr Squier indicated that she was unable to reconcile the combination of the brain injuries, the rib injuries, and the Applicant’s account of the events of 30 September 2006. Had she been cross-examined about that combination – as was highly probable, since it lay at the heart of the Crown’s case – her evidence was likely to have been particularly damaging to the Applicant’s case. The Applicant was advised to that effect, and it was agreed that Dr Squier should not be called. 115. In short, Dr Squier was not called because it became clear during the trial that she could not assist, and might well damage, the Applicant’s case. On the basis of counsel’s notes and the solicitors’ attendance notes, it cannot possibly be argued that the decision not to call Dr Squier was in any sense an error. On the contrary: it seems to us that the advice given to the Applicant by trial counsel in this regard was plainly correct. 116. The contention that trial counsel was wrong not to call Dr Squier as a witness has also not been pursued before us, though we understand that Dr Squier is said to have expressed a different recollection of what she said during the consultation. In our view, and notwithstanding any difference of recollection on Dr Squier’s part, it is regrettable that this criticism was ever advanced at all. Guidance issued by the Bar Council sets out the formal procedures to be followed where grounds of appeal involve criticisms are made of former counsel. It concludes by saying (see C-45 Archbold , Supplement at para. 7): “It is perfectly proper for counsel newly instructed to speak to former counsel as a matter of courtesy before grounds are lodged to inform him of the position”. Had that course been taken in this case, it would have been immediately apparent to counsel newly instructed that the criticism of trial counsel had no real prospect of success. In making this point, we do not, in any way, criticise Mr Blaxland who came into the case at a very late stage and did not focus on this complaint at all. 117. The third ground of appeal which we consider concerns the DVD recording of Donna’s interview. We can deal with this shortly. In the absence of Donna from the witness box, the demonstration which she gave to the police officers of the manner in which Rees was said to have been thrown to the floor was hearsay. It was not accepted by the Crown as truthful or accurate. If the defence had wished to put that demonstration forward as an accurate representation of what had happened, so as to provide a basis for an expert witness to opine on issues in the case, a hearsay application would have been necessary. Given that Donna could have been called to give the evidence herself, we see no basis on which it could be argued that such a hearsay application could have succeeded. No such basis is mentioned in the written grounds of appeal. 118. As an alternative, it is submitted in writing that the DVD recording is admissible as fresh evidence. Given that it had been made available to the Applicant’s representatives in advance of the trial as unused material and that the fact that the interview had been recorded on DVD and the fact of the demonstration, were both apparent on the face of the transcript, it is simply not open to argument that it was not available for use at the trial. 119. Finally and for the avoidance of all doubt, it is now clear from the expert evidence that we have heard that the multiple fractures of Rees’ ribs could not be explained by reference to the incident that Donna described: the DVD does not advance the case of the Applicant at all. 120. The next ground of appeal is based on the assertion that background evidence of a highly prejudicial nature was wrongly admitted at trial. The evidence in question was to the following effect. Firstly, that in late 2004 or early 2005 the Applicant’s stepmother had suggested he should attend an anger management course. The Applicant accepted that he would shout and swear at other motorists when he felt he had been “cut up” whilst driving. He went to an assessment session and then attended one session with a counsellor. Secondly, that for a short period in 2005 the Applicant had a brief sexual affair with a woman who was Donna’s cousin, and that there had been many arguments between the Applicant and Donna when she learned about this affair. The ground of appeal contends that this evidence could only ever have been admissible as evidence of bad character under s101(1) (d) of the Criminal Justice Act 2003 . No bad character application was ever made, and (it is submitted) any such application would have been bound to fail because the evidence could not possibly be regarded as showing a propensity for violence towards a child, and so could not satisfy the criteria for admissibility in s101(1) (d), as supplemented by s103 of the 2003 Act . 121. We see no merit in this ground of appeal. An important part of the Applicant’s case at trial was to emphasise his positive good character, relying not only on the fact that he had never been convicted of any criminal offence but also on his exemplary record of military service. He also wished, understandably, to rely on the favourable observations of a number of witnesses as to his treatment of his two children, the general view of those witnesses being that the Applicant was a loving and caring father. Moreover, it was clear that if the jury were satisfied that someone had caused unlawful injury to Rees, the only realistic candidates were the Applicant and his wife. Another important part of the Applicant’s case, accordingly, was to draw attention to matters which might be regarded by the jury as implicating Donna rather than himself. Examples of such matters were the inconsistencies in the accounts which Donna had given of the incident between Rees and his sister, and evidence that she had at relevant times been suffering from depression, from initial difficulties in bonding with Rees after his birth, and difficulty in coping with him at home. We therefore do not agree that s101(1) (d) of the 2003 Act was the only possible gateway to admissibility if the Crown were required to make an application to adduce bad character evidence: s101(1) (g) was also relevant because an attack was being made on Donna’s character. 122. In those circumstances, it came as no surprise to this court to receive from Mr Dunkels written confirmation of that which we had in any event assumed to be the position: namely, that the evidence adverse to the Applicant was admitted by agreement, pursuant to s101(1) (a) of the 2003 Act . Mr Dunkels took the view that it would be advantageous to the Applicant to have the evidence of his good character before the jury, even though that would probably result in the Crown being entitled to adduce the evidence as to the anger management course. We agree with that analysis: the decision of Mr Dunkels to reach agreement with prosecuting counsel, rather than requiring the Crown to make a bad character application which could be expected to succeed, was in our view an entirely sensible one, and certainly not one which can legitimately be criticised in this application. 123. So far as the evidence of the extra-marital affair is concerned, Mr Dunkels has indicated that he and his junior took the view that it would assist the Applicant’s case for this evidence to be before the jury. Such evidence could help to explain the family dynamics, and to provide an explanation for why some members of the family might be ill disposed towards him in their evidence. Given the circumstances which we have summarised above, and in particular the fact that Donna provided the only other plausible candidate for the inflicting of any non-accidental injury, that seems to us to be an entirely understandable view for counsel to have taken. Again, it is certainly not an aspect of their conduct of the case which could possibly give rise to an arguable ground of appeal. To be fair to Mr Blaxland, once he had seen Mr Dunkels’ explanation, he did not seek to pursue these grounds orally. 124. We add for completeness that, in any event we see no merit in the suggestion that the jury might have been unfairly prejudiced against the Applicant by this evidence. The anger management course was something which he attended on one occasion only, principally because members of his family were concerned about his verbally aggressive attitude towards other motorists when driving. The extra marital affair was of short duration, plainly the subject of regret and profuse apologies to his wife, and could not sensibly be regarded as undermining his denial that he had inflicted any unlawful injury on his son. In short, we take the view that these were matters which had to be in evidence if the Applicant was going to present the positive side of his good character, and to put forward the possibility that Donna had inflicted the injuries on Rees, but which cannot in any event have caused any weakening of his defence. There is nothing in this ground of appeal which casts any doubt on the safety of the conviction. 125. We turn finally to a ground of appeal relating to the summing up. We have already considered the criticism that the judge failed to assist the jury as to aspects of the medical evidence. There remains for consideration a complaint that the judge “commented in trenchant terms about the fact that the defence had failed to call any expert evidence”. It is submitted that that comment “is likely to have led the jury to conclude that the defence had no answer to the prosecution’s experts and this evidence proved guilt”. 126. In his closing speech for the Crown, Mr Ford QC (who then appeared for the prosecution) had commented to the jury about the fact that Dr Squier had been present at court but had not been called as a witness. Mr Dunkels, in his closing speech for the defence, dwelt upon the differences of opinion between the Crown’s medical experts, and with reference to Dr Squier he asked rhetorically whether it would really have assisted the jury to hear a yet further opinion. Thus both prosecution and defence had made specific reference to Dr Squier’s absence from the witness box. 127. At an early stage of his summing up the judge directed the jury about expert witnesses in conventional terms. In that part of his summing up he said – “Defendants in a case such as this have the opportunity, if they so wish, of instructing experts of their own who may be called to give expert evidence where the evidence is in dispute. You have not heard from any defence expert evidence which challenges the evidence of the prosecution experts, but bear in mind it is for the prosecution to prove the case and not for the defendant to prove his innocence. You should remember that this expert evidence, while of considerable importance in this case, is only part of the evidence and you must reach your verdict or verdicts having considered all of the evidence”. 128. Before closing speeches there had been the customary discussion between the judge and counsel as to matters of law. The judge had indicated that he would give a direction to the effect which we have just quoted. No objection was raised by counsel at that time, and that passage in the summing up is not the subject of any criticism before us. 129. Complaint is however made of a passage later in the summing up, at a stage when the judge was reminding the jury of some of the closing submissions of counsel. Referring to Mr Dunkels, the judge observed – “He said that Professor Risdon accepted that Dr Waney Squier was a neuropathologist who had a different view of different views from his own. Mr Dunkels told you Dr Squier was present in order to help the defence understand the prosecution evidence and to test it. She was not called to give evidence, he said, but he asked, “Would you have been helped by more expert evidence?” Well members of the jury, it is a matter for you, but your answer to his question might be: if there is an expert who can give evidence which explains how this triad of injuries occurred in a way which is consistent with the defendant’s version of events, yes, you would have liked to hear from him or her, and you have not. Of course, bear in mind it is for the prosecution to prove this case and not for the defendant to prove his innocence. Mr Dunkels says standing back and looking at the case as a whole you could not be sure that it was the defendant who had caused the injuries that were found.” 130. Mr Blaxland in his submissions to us has pointed out that the judge made very few comments in a summing up which was commendably succinct. This comment, he submits, was unnecessary, and “may have made a real difference”. 131. We see no substance in the criticism made of that judicial comment. Firstly, it seems to us that it was perfectly proper for the judge to mention the point, since both counsel had addressed the jury about it. Secondly, his comment was a legitimate one in the light of what had happened in the course of the trial: Dr Squier had plainly been identified in the presence of the jury as an expert witness who was not merely there to assist with cross-examination but would also be giving evidence, and yet when the appropriate time came she was not called. The jury were therefore likely to wonder why that was so, and the judge was in our view correct to deal with the point. Thirdly, the judge made it perfectly clear that these were all matters for the jury, and immediately went on to reiterate his direction that the burden of proof was on the prosecution. He followed that direction with a reminder of Mr Dunkels’ overall submission as to the insufficiency of the prosecution evidence. For those reasons we reject the submission that the jury’s verdict is rendered unsafe by reason of this comment. Conclusion 132. In the circumstances, we grant the Applicant leave to appeal against conviction only on the basis of the new evidence adduced from Professor Malcolm and we reject all the remaining grounds. Given our view that the conviction for murder is unsafe but that it would be appropriate to substitute a conviction for manslaughter, we invited the Crown to consider whether it sought to apply for a retrial. In the event, Mr Boyce made it clear that, prior to the trial, although satisfied that the relevant test for prosecuting the crime of murder had been met, the Crown had been willing to accept a plea of guilty to manslaughter. In the light of our conclusions, however, together with the advantage of hearing Professor Malcolm and testing his evidence, the view was now taken that the evidential test in the ‘Code for Crown Prosecutors’ is no longer satisfied. Thus, Mr Boyce did not seek a retrial: we agree with that conclusion and substitute for the conviction for murder a conviction for manslaughter. Sentence 133. The sentence of life imprisonment with a minimum term of 13 years falls away and the Appellant (as he has now become) now falls to be sentenced for manslaughter. We say immediately that the range of sentences imposed for manslaughter of a small child is wide. This is because there are very real variations in the gravity of the conduct that leads to death and, furthermore, the intent leading to a conviction for manslaughter also covers a broad range, from the intent to commit a minor assault up to an intent falling just short of that necessary for murder. The assessment of these features is obviously highly relevant when considering culpability in a given case. As must be clear from our conclusions when quashing the murder conviction, our view here is that the evidence points, at least, to an intent just short of that necessary for murder 134. In this case, the aggravating features are the extreme vulnerability of the victim, Rees. Further, although Mr Blaxland submitted to the contrary, in our judgment, Royce J was entitled to conclude (as we conclude) that the Appellant had caused the earlier fractures to the ribs on one if not two occasions and that to do so required considerable force. Neither is it irrelevant that these earlier fractures had been re-fractured; doubtless, this did not require the same force but we reject the view that we must proceed to sentence on the basis that these injuries were all caused by CPR. For the reasons that we have given, whereas there might be an issue as to the extent of the force applied, the overall circumstances are such that we have no doubt that they were not accidental in origin. 135. That is not the extent of the elements aggravating this killing. Although not mentioned by Royce J, it is legitimate to infer that the fatal injury was inflicted in temper, about which the Appellant had been warned by his family and advised to seek help. He was not honest in what he told the hospital and, of greater significance, maintained his denial in circumstances where his wife was necessarily implicated in the earlier injuries. On the other hand, we also reflect upon the mitigation which the judge accepted: there was no intent to kill, no premeditation and the incident, in temper, was committed against a background of stress in his marriage with him working long and unsociable hours. The judge also took into account (as do we) the Appellant’s good character and exemplary record in the army. 136. Turning to the guidance which can be obtained from the decisions of this court, Mr Blaxland submitted that the bracket was 5-7 years. He referred to R v Yates [2001] Cr App R (S) 428 in which a sentence of 7 years was reduced to 5 years following a plea to the offence of manslaughter following shaking of an 11 week old baby who had also suffered a fractured skull. He also referred to the unusual case of R v Owen [2009] EWCA Crim 702 in which the sentence of 3 years was passed following an admission of causing grievous bodily harm contrary to s. 20 of the Offences against the Person Act 1861 to a 6½ month old child involving a triad combination and fractures to an arm which caused cerebral palsy but not immediate death. When the child died 7 years later, the plea of guilty to manslaughter led to an additional sentence of 12 months, the trial judge noting that the appellant had rebuilt his life since his earlier release from prison. In our judgment, the facts of this case are so unusual that no assistance can be derived from it: in any event, Hallett LJ made the point that some may argue that a sentence of 4 years imprisonment imposed had the child died immediately “would not be long enough”. 137. It is clear that these cases fell to be decided without regard to the Criminal Justice Act 2003 (“ the 2003 Act ”); even if, technically, Owen concerned a death subsequent to the commencement of the Act albeit that the unlawful act was many years prior to it. What the 2003 Act did was to increase the punitive element in the sentence for murder. In R v Wood [2010] 1 Cr App R(S) 2, Lord Judge CJ (giving the judgment of a five judge constitution dealing with a case of manslaughter by reason of diminished responsibility) acknowledged that there was no express link between the guidance in Schedule 21 and the principles applicable to sentencing decisions in such cases but pointed out that the reduction of a defendant’s mental responsibility for a killing did not alter other circumstances of the homicide. He then said: “[A]ccordingly when the sentencing court is assessing the seriousness of the offence with a view to fixing the minimum term, we can discern no logical reason why, subject to the specific element of reduced culpability inherent in the defence, the assessment of the seriousness of the instant offence of diminished responsibility manslaughter should ignore the guidance. Indeed we suggest that the link is plain. … We derive some further, indirect support to our approach from the stark reality that the legislature has concluded, dealing with it generally, that the punitive element in sentences for murder should be increased. This coincides with increased levels of sentence for offences of resulting in death, such as causing death by dangerous driving and causing death by careless driving. Parliament’s intention seems clear: crimes which result in death should be treated more seriously and dealt with more severely than before. Our conclusion is not governed by but is consistent with this approach.” 138. Similarly, in another five judge constitution, Attorney-General’s Ref No. 60 of 2009 (Appleby and others) [2010] 2 Cr.App.R.(S) 46 (“ Appleby ), Lord Judge CJ considered the appropriate sentence for unlawful act manslaughter albeit in the context of incidents of public disorder. He recognised that the maximum penalty for inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861 was 5 years imprisonment but set the scene by observing (at para 3): “Taken together these three cases provide the Court with an opportunity to reconsider the approach to sentencing in cases of manslaughter when, notwithstanding that the defendant intended neither to kill nor to cause the deceased grievous bodily harm, he is convicted of manslaughter on the basis that the death was consequent on an act of unlawful violence. They are, of course, always tragic in their consequences, but they do not constitute murder, and they cannot be sentenced as if they were. If the defendant is convicted of manslaughter the consequences must be treated as if they were unintentional and unintended… [Y]et whether the case falls to be sentenced as murder or manslaughter, the catastrophic result for the deceased and his or her family is the same: the loss of a precious life. In each of these cases we have been made aware of the poignant, lamentable impact of the deaths of each victim on the families who are left behind to grieve.” 139. Having considered the authorities and referred back to Wood and the disparity between a sentence for murder with the tariff fixed by reference to Schedule 21 of the 2003 Act and that for manslaughter, he went on (at para 22) “[C]rimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in Sch. 21 of the 2003 Act , but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight.” In our judgment, these words apply equally to unlawful act manslaughter of babies and children as they do to disorder in the street. 140. When asked to address the impact of Schedule 21 to the Criminal Justice Act (“ the 2003 Act ”) on homicide short of murder, Mr Blaxland relied on s. 143(1) of 2003 Act (to the effect that the court must consider the offender’s culpability in committing the offence and any harm which the offence caused) and para. 1.7 of the guideline issued by the Sentencing Guidelines Council on Overarching Principles – Seriousness to the effect that harm must always be judged in the light of culpability. He referred to the fact that the guideline on manslaughter by reason of provocation contained no reference to the need to increase substantive offences for manslaughter in order to reflect the increase in the minimum term for murder and submitted that it would be inappropriate to allow Schedule 21 to impact on sentences which flow from the death of a child in circumstances such as here exist. As Lord Judge explained in Appleby , however, this guideline was the culmination of work of the Sentencing Advisory Panel and Sentencing Guidelines Council which began before the 2003 Act was brought into force and, although it was referred to, this specific feature was not considered. 141. The 2003 Act prescribes the starting point of 15 years for murder which is neither exceptionally nor particularly high and identifies as an aggravating feature the fact that the victim was particularly vulnerable because of age (see paras. 6 and 10(a) of Schedule 21). It is doubtless for that reason that, notwithstanding the mitigation that he accepted, Royce J imposed the inevitable mandatory life sentence with a minimum term of 13 years and it has never been suggested that this sentence was either wrong in principle or manifestly excessive. The offence of manslaughter is, of course, of a very different order of gravity (there being no intention to cause really serious harm) but the vulnerability of the victim is also clearly imported into the offence of manslaughter (see the Definitive Guidelines on Overarching Principles in relation to Assaults on Children at para. 9 and in relation to Seriousness at para 1.23). In the light of this background and all the circumstances of the case, we have no doubt that the bracket suggested by Mr Blaxland is simply too low. 142. In our judgment, for the reasons expressed in Wood and Appleby , the court must reflect, at least in part, the increased focus on the fact that a victim has died in consequence of an unlawful act of violence. Although, as Mr Blaxland argues, we recognise that this Appellant has had to suffer not only the loss of his own child, but must also come to terms with the guilt of having caused the child’s death, the very least sentence that we believe it appropriate to impose is one of 10 years imprisonment. The period of 7 days spent in custody prior to sentence being imposed by Royce J will similarly be taken into account.

2010_12_02-2572.xml

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[2003] EWCA Crim 2752

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Case No: 200301361A8 Neutral Citation No: [2003] EWCA Crim 2752 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HIS HONOUR JUDGE DUTTON CHESTER CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 20 th October 2003 Before : LORD JUSTICE MANTELL MR JUSTICE ELIAS and MR JUSTICE JACK - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - PETER DOMINIC BELLI - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 200301361A8 Neutral Citation No: [2003] EWCA Crim 2752 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HIS HONOUR JUDGE DUTTON CHESTER CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 20 th October 2003 Before : LORD JUSTICE MANTELL MR JUSTICE ELIAS and MR JUSTICE JACK - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - PETER DOMINIC BELLI - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss R White (instructed by Tranters ) for the Appellant Mr P Hussey (Solicitor Advocate) (instructed by the Registrar ) for the CPS Hearing dates : 01/09/03 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Lord Justice Mantell: 1. In the early hours of 30 th November 2001 a TVR Tuscan car was broken into and a CD player stolen. Someone saw it happen and got in touch with the police. Following a search Peter Belli and another man were found hiding in a field. Both were wet and wearing gloves. Belli made no comment in interview. He was not charged but bailed pending further enquiries. 2. Sometime before 3 rd January 2002 police received a report that a terraced cottage in Knutsford had been broken into. It emerged that the owner was away on holiday. Further investigation showed that the premises had been ransacked with drawers having been emptied and their contents strewn about. The television aerial cable and telephone line had been cut. A quantity of property valued altogether at £250.00 had been taken. Blood was found at the scene the DNA of which matched Belli’s. Belli was rearrested on 24 th June 2002. In interview he said he could not remember committing the offence but that he had been on drugs at the time. He was charged with the earlier theft and burglary. Once again he was released on bail. 3. On 27 th October 2002, while still on bail, Belli went to a pharmacy to collect his methadone prescription. He made use of the opportunity to steal toiletries valued at £36.00. Unfortunately for him the theft was recorded by the CCTV camera. When Belli returned the next day he was arrested. 4. For these various offences to which he pleaded guilty before magistrates, Belli was committed for sentence to the Crown Court at Chester. He continued on bail. On 5 th November 2002 he failed to surrender to his bail. It was not until 4 th February 2003 that he fell to be dealt with for all matters including the failure to surrender. In the event he was sentenced to a total of two years nine months imprisonment. 5. In imposing that sentence the learned judge considered and rejected a suggestion that Belli might be made the subject of a Drug Treatment and Testing Order (DTTO) notwithstanding that the court had been supplied with reports indicating that Belli was a suitable candidate. The pre-sentence report remarked the offences had been committed during a period in which the appellant was routinely using high levels of tranquillising medication in addition to methadone prescribed by the Community Drugs Team. He was also buying heroin on the street. The author stated that Belli wished to achieve long-term abstinence from illegal drugs and that he recognised that his drug use caused his offending. It was pointed out that he had not received a community disposal since 1992. It was noticed that previous custodial sentences seemed to have little impact on Mr Belli’s offending and that a further such sentence would do little to assist him in addressing his drug use. The DTTO assessment informed the court that Belli had shown a sufficiently high level of motivation to suggest that he could respond to the rigorous demands of the order. It proposed a twelve-month order with a minimum of two tests per week as deemed appropriate by the Supervising Probation Officer. Amongst other material available to the sentencing judge was the record of Belli’s previous offending which dated back to 1989, when he would have been a teenager, and which included numerous offences including robbery and possessing an imitation firearm. There were also many convictions for theft. 6. In passing sentence the judge stated: "I have to decide what is the appropriate way of dealing with your case. It is clear that drugs are at the root of your problem and the Probation Service feel that there is resolution now by you to address that issue and they propose a Drug Treatment and Testing Order in your case, and I have to think very carefully as to whether that is appropriate. Having done so, I fear I am resolutely of the view that these offences and particularly the burglary offence is so serious that only an immediate custodial sentence would in any way appropriately reflect what has happened. It would be quite wrong in my view for a sentence of any thing other than custody to be imposed in those circumstances." 7. Belli sought and was granted leave to appeal. The matter came before the court on 1 st September 2003 when we allowed the appeal, quashed the sentences of imprisonment and substituted a Drug Treatment and Testing Order. We reserved our reasons, which we now give. 8. We begin by saying that since the date of sentence a further report has been prepared dated 20 th June 2003 in which it is noted that the appellant has done well whilst in prison and has shown a clear determination to rebuild his life and to break free from drugs. He has provided three mandatory drug tests and nine voluntary tests, all of which have proved negative. The report strongly supports the substitution of a DTTO by this court. 9. The statutory provisions relating to DTTOs are contained in sections 52 to 57 of the Powers of Criminal Courts (Sentencing) Act 2000 . They have been considered by the Divisional Court in R (on the application of the Inner London Probation Service) v Tower Bridge Magistrates’’ Court [2002] Cr.App. R(S) 43 (p.179) and by this court most importantly in Kelly [2002] EWCA Crim 2060 , [2003] 1 Cr App. R(S) 89 (p.472). 10. In the Tower Bridge case Bell J stated in paragraph 4 of a judgment with which the Lord Chief Justice agreed, that: "Drug treatment and testing orders were introduced from October 2000 as a new community sentence aimed at breaking the link between drug addiction and offending. The orders may last for the period, specified by the court, of between six months and three years. The treatment and testing carried out under the orders are an expensive resource targeted particularly at high volume offenders who have been largely driven to commit offences by their addiction to drugs and the need to finance treatment. The DTTO is unusual among community sentences in that it involves regular testing for drug abuse, and it involves the court which imposes the order having a formal and regular role in reviewing progress under the order and monitoring the offender’s conduct subject to the order." 11. In Kelly Field J, giving the judgment of the court, in paragraph 13 quoted from the guidance issued by the Home Office for practitioners involved in drug treatment and testing order pilots: "The primary aim of the drug treatment and testing order is therefore to prevent further offending. It is envisaged that the vast majority of suitable candidates will be convicted of acquisitive crimes, committed in order to obtain money to buy drugs. Volume of offending is likely to be a more important consideration than the seriousness of individual offences. Nevertheless, the type of offence is more likely to be an effective indicator than either and so those convicted of burglary, robbery, theft (including shoplifting), perhaps embezzlement and any other acquisitive crimes are likely most frequently to provide offenders suitable for the drug treatment and testing order. Offenders convicted of drugs supply who are themselves habitual misusers, and are otherwise suitable for a community sentence, should also be considered." Field J stated in paragraph 15 in respect of the case before the court: "With respect to the learned sentencing judge, we are of the view that he gave too great importance to the appellant’s scale of offending and therefore gave too little consideration to the appropriateness of a DTTO disposal. The sad fact is that it will often be the case that a candidate for a DTTO has been guilty of acquisitive offending on a significant scale to fund his drug addiction. DTTOs provide a chance for the offender to break his addiction and therefore cease offending. Thus a sentencing judge must be careful not to give disproportionate weight to the scale of offending and thereby diminish the usefulness both to the offender and to the community of a DTTO." 12. We refer also to the judgment of this Court in Robinson [2002] EWCA Crim 535 , [2002] 2 Cr App. R(S) 95(p.434, where the Vice-President stated in paragraph 26: "It is well-known that a high proportion of criminal offences against people and property are committed in order to provide funds to feed the drug habit of the perpetrator. If there were fewer drug addicts, it is likely that there would be fewer criminal offences. Accordingly, in our judgment, judges should be alert to pass sentences which have a realistic prospect of reducing drug addiction whenever it is possible sensibly to do so." That case was concerned with the position where the offender appeared before a second court for sentence soon after a court had made a DTTO. 13. We have been referred to a number of cases in which this court has allowed appeals and substituted DTTOs for sentences of imprisonment. In doing so the court has sometimes been assisted by further reports on the offender since sentence. In Billinger [2003] EWCA Crim 239 a court presided over by the Lord Chief Justice dismissed the appeal. In giving the judgment of the court Jackson J stated in paragraphs 11 and 12: "11. As my Lord, the Lord Chief Justice, pointed out in argument to Mr Mousley, in a case concerning the commission of a series of offences motivated by drug addiction, where the probation service recommend a drug treatment and testing order, the sentencing judge has to make an assessment. Ultimately he is exercising his discretion by reference to all the circumstances of the case. In this case His Honour Judge Selwood carefully considered the recommendation for a drug treatment and testing order. He noted that he had to do a balancing act. In doing that balancing act, the judge took into account the circumstances of the offences and the material revealed by the drug treatment and testing order assessment report. The judge then came to the conclusion that the proper course in this case was to impose a substantial term of imprisonment rather than a drug treatment and testing order. 12. Although we accept that the appellant’s motive for his offending was to feed a drug addiction, that does not compel the conclusion that a proper sentence in the case is a drug treatment and testing order. It seem to us that it must be a matter for the judge’s discretion whether such an order is an appropriate disposal in the instant case. We do not consider that there is any material upon which we should say that the judge erred in the exercise of his discretion or that he came to a decision which was wrong in principle. The judge had regard to the seriousness of the offences before him. He was entitled to do so." 14. Lastly we refer to Attorney General’s Reference No 28 of 2001 (Daniel McCollins) [2001] EWCA Crim 1373 . There the offender had pleaded guilty to four street robberies. One involved punching the victim in the face. Two involved threats with a knife, and one a threat to shoot. All save the first were committed on bail. A DTTO was made. In giving judgment Judge LJ stated at paragraph 17: "The proper approach to this case is, in our judgment, clear. The sentence for these four offences committed by this offender were unduly lenient. We recognise, of course, the importance of rehabilitation and reintegration, particularly where the offender is young and the opportunity to achieve rehabilitation may not readily return, and where the offender is already addicted to drugs, which problem unless addressed is likely to continue. That said, however, we do not consider that the Drug Treatment and Testing Order was an appropriate sentence in this case. We can summarise our reason in a single sentence. It gave excessive weight to the issue of rehabilitation and wholly insufficient weight to the actual criminality of the offender." 15. What we gather from these authorities is that a DTTO is an important part of the court’s armoury in dealing with crime. While such an order is designed to address the causes of crime it is far from a soft option in that it requires the offender to submit to regular testing and also for periodic attendances at the Crown Court with the possibility that following an adverse report the order might be revoked and a custodial sentence substituted. What is also clear from the authorities is that it is incumbent upon a sentencer to give proper consideration to the making of a DTTO and not to reject that course simply because a custodial sentence would otherwise have been appropriate. Nor should it be thought that the option will cease to be available simply because of the scale of the offending. At the same time the actual criminality of the offender is by no means an irrelevant consideration as can seen from Attorney General’s Reference No. 28/2001. In granting leave the single judge invited the court to consider whether and when an offence, or series of offences, might be so serious that only a custodial sentence would be justified and a DTTO should not be considered. In response we do not think that we can do better than to reiterate and underline what was said by this court in the passage already cited from Robinson . 16. Here the judge was faced with a difficult balancing exercise. He was rightly concerned about the burglary which contained some unpleasant features including the cutting of the telephone wire and the ransacking of the various rooms. At the same time it was not the worst case of its kind and it was an attack upon unoccupied premises. The members of this court are each inclined to think that given the contents of the reports available to the judge the appropriate order would have been a DTTO. Moreover, we have doubts about whether the judge properly approached the exercise of his discretion in accordance with the guidance, to which we have referred, given by the Vice President in the Robinson case. However, we do not finally have to resolve that question because we are satisfied that whatever the justification for the original sentence, having regard to the additional material available to this court, to which we have already made reference, the balance is now decisively in favour of allowing the appeal. It was for these reasons that we substituted the order which we did.

2003_10_20-117.xml

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[2013] EWCA Crim 673

EWCA_Crim_673

crown_court

Neutral Citation Number: [2013] EWCA Crim 673 Case No: 201202000 B3 201201842 B3 201201763 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HHJ WORSLEY QC T2011700 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/05/2013 Before : LORD JUSTICE TREACY MR JUSTICE GLOBE and RECORDER OF LEEDS, HIS HONOUR JUDGE COLLIER QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : Mundill Kaur Mahil Harin

Neutral Citation Number: [2013] EWCA Crim 673 Case No: 201202000 B3 201201842 B3 201201763 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HHJ WORSLEY QC T2011700 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/05/2013 Before : LORD JUSTICE TREACY MR JUSTICE GLOBE and RECORDER OF LEEDS, HIS HONOUR JUDGE COLLIER QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : Mundill Kaur Mahil Harinder Shoker Darren Peters Appellants - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M Birnbaum QC & N Griffin (instructed by Registrar of Criminal Appeals ) for Mahil S Bennett-Jenkins QC & G Young (instructed by Registrar of Criminal Appeals ) for Shoker R Barraclough QC (instructed by Registrar of Criminal Appeals ) for Peters A Jafferjee QC & S Whitehouse (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 18 - 19 April 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy : 1. We regret the length of this judgment which has been occasioned by the number of grounds of appeal and the detail of them. 2. These Appellants were convicted on 24 th February 2012 after a lengthy criminal trial before His Honour Judge Worsley QC at the Central Criminal Court. By the time of the jury retirement, there were three counts on the indictment. Count 1 – murder. Count 2 – causing grievous bodily harm with intent; a count added at the close of the prosecution case. Count 3 – manslaughter; an alternative to Count 1 added after all the evidence had been called. 3. The Appellant, Shoker, was convicted of Count 1 and sentenced to custody for life with a minimum term of twenty two years less time spent on remand. He appeals against his conviction. Mahil was acquitted of murder, but convicted of causing grievous bodily harm with intent (Count 2). She was sentenced to six years detention in a Young Offender Institution with time on remand and subject to curfew being credited. She appeals against both her conviction and her sentence. Peters was convicted of Count 3 (manslaughter), but acquitted on Counts 1 and 2. He does not appeal against his conviction, but does challenge his sentence of twelve years detention in a Young Offender Institution less time spent on remand. In each case the Single Judge granted leave. 4. The judge provided the jury with a route to verdict document. In relation to Shoker and Peters, on Count 1 (murder), he posed the question: “Has the prosecution made you sure that he, intending to kill GS, participated in acts whereby GS was killed?” 5. In relation to Count 2 (section 18), he posed the question: “Has the prosecution made you sure that, intending to cause GS really serious harm, he participated in acts whereby GS was caused really serious bodily harm.” 6. In relation to Count 3 (manslaughter), he posed the question: “ Has the prosecution made you sure that: (i) he knew that GS was in the boot of the car and (ii) he failed to take reasonable steps to check whether GS was alive or not and (iii) he participated in setting fire to the car and (iv) he thereby caused the death of GS and (v) those actions gave rise to a serious and obvious risk of death and (vi) that conduct was so bad that it amounts to the crime of manslaughter? ” 7. In relation to Mahil and Count 1 (murder), he posed this question: “Has the prosecution made you sure that MM, intending that GS be killed, was party to a plan which resulted in him being intentionally killed?” As already stated Mahil was acquitted of this count. 8. In relation to Mahil and Count 2 (section 18), the judge asked: “Has the prosecution made you sure that MM intending that GS be caused really serious harm was party to a plan which resulted in GS being caused really serious harm at 45 Gladstone Place?” 9. No criticism was or is made of the terms of the route to verdict document. The Core of the Case 10. On 25 th February 2011 the victim, Gagandip Singh, a young Sikh man, was lured by Mahil to 45 Gladstone Place, Brighton, an address shared by her with a number of fellow medical students. On arrival she took him to her bedroom in the basement, a place where he had sexually assaulted her some six months previously. 11. Shoker and Peters had travelled from London that day, been met at the railway station by Mahil, and taken to the house in readiness for the victim’s arrival. 12. The victim was assaulted in the bedroom. Mahil left the room as soon as the assault began. It went on for some time and other occupants of the house heard the noise and the victim’s cries for help. Eventually Gagandip Singh was rendered unconscious or semi-conscious. He was wrapped in bedding taken from Mahil’s room, removed from the premises and put in the boot of his sister’s Mercedes which he had driven to the premises. 13. A neighbour saw two men carrying the victim to the car. Mahil knew of this. The victim’s car was then taken back to London by the two male Appellants. It was driven to a quiet residential lane in Blackheath where it was set alight with petrol in the small hours of the morning. En route the victim’s hands appear to have been bound with wiring taken from the Satnav. The car having been torched whilst the victim remained locked in the boot, he died as a result of the fire. 14. The Crown’s case was that the earlier sexual assault provided the motive for a plan to lure the victim to the address so that he could be killed or at least seriously injured. 15. Mahil and Shoker were of previous good character. Peters was only lightly convicted. All gave evidence. All denied any intention to kill or seriously injure the victim. Mahil’s case was that she had been persuaded to invite the victim to her house for the purpose of him being spoken to for his inappropriate behaviour towards her and/or other women. The most she had contemplated in terms of violence was something minor such as a slap. The victim had been attacked in her bedroom without any warning. She had been shocked and surprised and had not wanted him to suffer any harm. 16. Shoker’s case was that he was in the bedroom with Peters. Peters had started an attack, which he had joined in using his fists, but not intending any serious harm. He admitted carrying the victim out of the premises and putting him in the boot of the car and then driving the car to London. He claimed to be confused, not having eaten or taken insulin for his diabetes, so that he did not appreciate fully what was happening. 17. Later Peters had poured petrol over the victim while he was in the boot and set it alight. He, Shoker, believed the victim to be already dead. He had not set fire to the body, and denied at any stage intending any serious harm, let alone death. 18. In contrast, Peters’ case was that he had been acting under a threat when he accompanied Shoker to Brighton. He had been in the kitchen in the basement of the premises while the attack must have been taking place. He played no part in the attack or carrying the victim to the car. He denied ever knowing that the victim was in the boot of the car. It was Shoker who had poured petrol on the car and set it alight. He had played no part, either in the attack, or in setting the fire. Background 19. There was a great deal of background evidence given at the trial. Mahil was a second year medical student at the time of Singh’s sexual assault upon her. It was described as attempted rape, although in legal terms it fell short of that. She had been much upset by that, and subsequently Singh had texted a friend of his, Sonny, admitting he had “attempted to rape” Mahil. 20. Thereafter he bombarded her with texts, which she ignored. But in November 2010 she confronted him with an allegation which she had heard to the effect that he had touched up another girl. 21. Mahil had been friendly with Singh for some time, but after the incident in August 2010, began to refer to him as “shit face”. She told a number of close friends what had happened to her, but did not contact the police. Some of those friends were members of the Sikh community. The evidence was that such conduct would be particularly unacceptable in that community. One of those whom she told was the Appellant Shoker. It was accepted that he was besotted with her. There was evidence that prior to 25 th February he and others, including her brother, had tried to persuade her to set up Singh so as to teach him a lesson. 22. The evidence shows that she fluctuated in her views. There was certainly some positive evidence that on occasions she had indicated she did not want any harm to befall Singh. There was also evidence that many people viewed her as a naive and gentle person who would be unlikely to be part of a violent plan. 23. It is clear, however, that by 25 th February there was a plan in place for Mahil to invite Singh to her home on false pretences. There had been a meeting on the topic on 23 rd February involving Mahil, Shoker, her brother, and Sonny. Despite some reservations about his safety, Singh went to Mahil’s home, arriving by arrangement at around 11:00pm. As already stated, by then Shoker and Peters had travelled to Brighton, having purchased one way train tickets, to await his arrival. 24. Shoker, in his infatuation with Mahil, wanted to act as her protector. One of Mahil’s flatmates, Live Thorsen, gave evidence that Mahil had told her that Shoker had told her that he was willing to go to prison for twenty-one years to protect her. There was controversy at the trial as to when Mahil told Thorsen. 25. There were a number of Mahil’s flatmates in the house on the evening. The basement area, which contained a kitchen and a sitting room, was normally used as the area for socialising. Prior to Singh’s arrival, Mahil had asked others in the house to stay away from the basement. Some of them heard the noise of the assault. More than one heard a male voice calling out for Mahil in distress, but she did not respond. After what they later realised was an attack, they had seen Mahil looking shocked and distressed. After The Attack 26. A neighbour witnessed two men carrying a long object wrapped in a duvet, consistent with a body shape, being carried to a car and put in the boot. The witness thought she saw a head of hair protruding. The car then drove off at about 11:20pm. 27. It was at about 2:00am the following morning that two people were observed on CCTV running away from the torched vehicle. The expert evidence showed that petrol had been used. It appeared to have been poured onto the body and also inside the rear of the car. 28. In the meantime Singh’s sister had become concerned about her brother’s whereabouts. She phoned Shoker, who was laughing and seemed to treat matters as a joke. Eventually she spoke to Mahil, who said she did not know where Singh was, and then went on to say that he had come to her house, but that she had not seen him. The impression was given that he had visited, but had left without seeing her. 29. There was evidence to show that in the small hours after the car had been set ablaze, there was a lengthy telephone call lasting more than an hour between Shoker and Mahil. The Appellants were arrested. Mahil contacted the police. She lied or concealed a number of important matters when interviewed. She stated on a number of occasions that she had not wanted any harm to come to Singh, and had disagreed with rumours she had heard that people were out to get him. 30. Shoker declined to answer questions. Peters produced a prepared statement denying involvement in violence and saying he had been pressurised into going to Brighton. He thought he was going to steal a car. 31. Two 5 litre petrol cans containing petrol residue were found at Peters’ home. Medical Issues 32. The pathologist found evidence that Singh’s hands had been bound. His evidence was that Singh had still been alive when the vehicle was ignited. Petrol particles in a lung showed that they had been inhaled. 33. However, there was also evidence of brain injury in the form of a subdural haemorrhage consistent with at least five or more blows to the head. A damaged camera tripod found in Mahil’s bedroom could have caused some of the injuries. There was bruising to various parts of the head, but no skull fractures, as well as deep bruising to the right side of the body. 34. The cause of death was inhalation of poisonous fumes from the fire. However, the head injury was described as significant and of sufficient severity potentially to lead to unconsciousness and possible death if not attended to in good time. However, these injuries had not played a part in the death, and if treatment had been received, Singh could well have recovered from them. Defence Evidence 35. Mahil said she had summoned Singh because she wanted to speak to him and end their relationship. She thought Shoker and Sonny were going to come and speak to him about his behaviour and the Sikh religion, but that there would be no violence. When Sonny did not arrive with Shoker, but Peters did, she thought Singh might be intimidated into going with them so that Sonny could deliver a lecture about moral behaviour. 36. She agreed that she had told her flatmate, Live Thorsen, that something was going to happen that night, but she had not known what was going to happen. After Peters, who was not previously known to her, and Shoker arrived, they pulled out sheets from a bag and put on black fingerless gloves. It was Peters who first assaulted Singh. At this point Mahil left the room in panic. She knew that Singh had been taken to the car. She thought he had merely been hurt and was being driven away to see Sonny. 37. She agreed that she had lied to Singh’s sister. She had not contacted the police in case they accused her. She denied having given the impression to some of her flatmates that something serious was going to happen to Singh that evening. Her case was that Shoker may have had his own secret agenda. 38. Shoker said he had agreed to go to Brighton with Sonny to speak to Singh and make him realise that his behaviour was wrong. However, on 24 th February Sonny had suggested that he and Peters bring Singh to south east London to see him, coming back with Singh in Singh’s car. Although a threat of force might be required to make Singh comply, he did not intend any serious harm to him. At the house Peters had hit Singh first, and then he had himself struck Singh several times to the head with his fist, fracturing his hand, while Peters continued to hit him. He then saw Peters use the tripod on Singh’s head. 39. Peters wrapped Singh in a duvet and told him to carry Singh to the boot of the car with him. He was low on blood sugar and did not remember much about the return journey. He drove on autopilot. It was Peters’ idea to secure Singh’s hands. 40. On their return to London, Sonny told them to get rid of the car and Peters got some petrol. The pair then drove to Blackheath. When they opened the boot he believed Singh was dead. It was Peters who set light to the car. He did not inform the police as he was too frightened. Although his defence statement referred to beating Singh at the house, he had merely intended a talk or a lecture, and Peters had simply been taken along as backup. 41. Peters’ case was that he was a car thief and it was for that reason he had gone to Brighton with Shoker. They would steal a car, bring it back to London, and Sonny would sell it. Threats were made to him in order to persuade him to go. When they got to the house, Shoker took clothing out of a bag and told Peters to put it on over his own clothing and to wear gloves. He had waited in the kitchen while Mahil and Shoker were in the bedroom. He heard noises and banging for about five minutes, but remained in the kitchen throughout and used no violence. 42. He had not taken the body to the car. Shoker and some other person must have done that. The burning of the vehicle was done by Shoker and was his idea. He had only later learnt that there was a body in it. Shoker had told him to keep his mouth shut. Shoker had later given him a cash card and pin number and asked him to withdraw £300.00. They had in fact been taken from Singh, but he denied that the money represented payment for his part in the matter. 43. It is clear from the foregoing that there was a serious degree of conflict between the Defendants. Each denied, contrary to the primary prosecution case, that there was a joint plan to lure and kill Singh. Each denied agreeing to or carrying out any serious violence at the house. In relation to the burning of the car, Shoker and Peters blamed one another. In relation to Mahil and this latter aspect, the jury had to consider whether she intended Singh to be killed and was part of a plan to do so. 44. The task for judge and jury was therefore not a straightforward one. Both had to contend with a large body of evidence and conflicting interpretations of it, and different inferences sought to be drawn from it by the various parties. We set out at the start of this judgment the agreed framework of the way in which the core issues against the various Appellants on the various counts were left to the jury. 45. As far as Mahil was concerned, Count 2 was an alternative to Count 1, but it limited her exposure to conviction to violence taking place at her home. As a matter of law the case could have been put more widely, but that is how it was left to the jury. As far as the two male Appellants are concerned, manslaughter (Count 3) was left as an alternative to Count 1 on the basis of gross negligence in setting the fire. Mahil’s Appeal Against Conviction 46. Mr Birnbaum has advanced a large number of grounds accompanied by voluminous written submissions foreshadowing his oral submissions. Ground ten of Mr Birnbaum’s grounds related to the asserted inconsistent or unsatisfactory nature of the jury’s verdicts. This was the central ground in his submissions and he was forcefully supported in his argument by Ms Bennett-Jenkins QC, representing Shoker. We therefore deal with both submissions together in the ensuing paragraphs. Ground Ten/Shoker Submission – Inconsistent or Unsatisfactory Verdicts 47. Both Mr Birnbaum and Ms Bennett-Jenkins argued that the different verdicts returned by the jury reflected inconsistency, which showed that they were not true verdicts on the evidence, but reflected a failure of the process. It was common ground that an Appellant seeking to quash a conviction on the ground that the verdict is inconsistent with another count must not merely show that verdicts on different counts were inconsistent, but that they were so inconsistent as to call for interference by this court. Logical inconsistency of itself does not make a verdict complained of unsafe unless the only explanation of that inconsistency must or might be that the jury was confused or adopted the wrong approach. 48. It was argued by both Appellants that the asserted inconsistency in the verdicts reflected a compromise intended by the jury to reflect the relative moral culpability of the Appellants rather than the result of a reasoned process following the judge’s directions as to the law. 49. In support of that it was submitted that the verdicts in Peters’ case were “sheer nonsense”. Peters’ case in relation to the burning of the body in the car was that he had not realised the victim was in the car at all. The jury must have rejected that in order to convict him of manslaughter. Yet they had, unaccountably according to Mr Birnbaum, believed other parts of Peters’ evidence when he denied being recruited for any violent purpose or participating in any violence at the house. 50. We point out that the jury’s verdict as to what took place at the house does not necessarily mean that they believed Peters’ account, only that they were not sure that he was guilty in relation to those matters as the prosecution alleged. 51. Secondly, it was argued that the conviction of Shoker of murder and that of Peters of manslaughter was illogical and must have involved a transposition of Shoker’s defence on what happened at the car to Peters. 52. Further, it was argued that the different verdicts returned on Mahil and Shoker made no sense. Our attention was drawn to a passage at page 14 of the summing up in which in the case of Mahil, the judge said that the prosecution had to be sure that she intended really serious harm to be caused to the victim that night and played a part in that by luring him to the house and leading him to the bedroom “where the other two defendants set upon him and caused him harm which can properly be described as really serious”. The emphasis is on the phrase “the other two defendants”. Since Peters was acquitted of the Section 18 offence, the jury must have ignored the judge’s direction. For these reasons the court should have no faith in the jury’s verdicts which cannot properly be rationalised. 53. Ms Bennett-Jenkins adopted and added to these submissions by reminding us that there was prosecution evidence contradictory of Peters’ account as to what had occurred in the house, namely the evidence of Becky Edwards, that she had been the sole person in the kitchen on the night, and the evidence of a neighbour which was inconsistent with Peters’ denial of moving the body to the car. In addition she argued that the verdict on Peters imported a state of mind claimed by Shoker, but not claimed by Peters. 54. We do not accept these arguments. The evaluation of the evidence was entirely a matter for the jury. Each of the Defendants had given evidence. There were elements of their cases which were inconsistent with one another, for example, there was strong disagreement between Peters and Shoker as to who was responsible for burning the car and the circumstances of that event. Quite apart from the differences between the Defendants’ accounts, a jury is entitled to accept or reject different parts of any witness’ evidence. In the case of Peters’ role at the house and his claim not to have prior knowledge of or participation in the violence there, all that the verdicts relating to that demonstrate is that the jury were not sure that the Crown’s case was proved in that respect. That does not mean that they accepted Peters’ account. 55. Whilst it is true that the evidence of Becky Edwards pointed away from his account, the jury had Peters’ own evidence, the fact that he had been taken along as a late replacement, the fact that he was not a Sikh and was not engaged with the background events, and the judge’s warning that the evidence of co-accused should be viewed with care in looking at a fellow accused’s case to take into account. It may be that Peters was fortunate in his verdict relating to the house, but it is not illogical or beyond comprehension. The jury may have felt unable to say that it was sure that his version of events was incorrect. 56. As to the burning of the car, Shoker’s defence was that he thought that a dead body was being burnt. Peters’ defence was that he did not know there was a body in the boot at all. The evidence of a neighbour seeing two men carrying the victim out to the boot of the car from Mahil’s house provides evidence from which the jury could infer that Peters knew there was a body in the boot of the car. In Shoker’s case the jury must have rejected his claim that he thought it was a dead body. In Peters’ case they must have concluded that he was aware the victim was in the boot, and participated in setting fire to the car, having failed to take reasonable checks to check whether the victim was alive or not. 57. There was no logical inconsistency between the two verdicts. The jury were entitled to look at the background to the burning of the car as well as what happened there in deciding what the intentions of the two actors were. It was never submitted that the only verdicts open to the jury in relation to Counts 1 and 3 were that either both male Defendants were guilty of murder or both guilty of manslaughter. We see no illogicality in the verdicts. They represent an assessment of the evidence by the jury in the different cases consistent with the route to verdict document. 58. As to the further point based on the passage cited from page 14 of the summing up, we are not impressed by it. As a matter of law it would have been quite sufficient for the judge to direct the jury that if either Defendant had set upon the victim and caused him grievous bodily harm, that would be sufficient if Mahil had the requisite intent and had played a part in that. Indeed only a few sentences before, at page 13, the judge had said: “To establish this charge the prosecution must prove that a defendant, intending to cause Gagandip really serious harm was party to a plan whereby deliberately and unlawfully Gagandip did sustain such really serious harm. It matters not that a defendant did not strike a blow provided that he or she was party to a plan…” 59. Moreover, the route to verdict document, insofar as it related to Mahil and Count 2, was consistent with that direction. At the time nobody commented on the difference between what the judge said at page 13 and page 14, no doubt because the matter went unnoticed as having any significance. To the extent that there was a slip by the judge, it was an immaterial one which cannot have any impact on the safety of the convictions. It does not, in our judgment, provide material to support a submission that the jury must have ignored the judge’s directions in the case generally. 60. In seeking to persuade us that the verdicts of the jury were illogically inconsistent, reliance was placed on the fact that this was a trial which had considerably overrun its original estimate. As it approached its end, on the Tuesday of the final week in which the verdicts were returned on Friday, two jurors expressed concerns about pressure they were receiving from employers to return to work. The judge discussed the position with counsel and then addressed the jury. He allowed them to have their phones back briefly in order to obtain contacts details for their employers so that a senior member of staff at the court could speak to the employers to say that each juror was performing an important public duty and that it would be wholly wrong for them to feel under pressure to return verdicts. 61. The judge emphasised the importance of the jury taking all necessary time to come to their decisions. He reassured them that if the pressure was real, he would deal with it. Having given the jury that reassurance, the judge invited them to tell him if any of them still felt under pressure. In our judgment, the judge had acted entirely appropriately and left open the question of further investigation if any juror continued to feel pressure. There were no further representations from the jury about this matter. A majority verdict was given at around midday on the Thursday, and verdicts were delivered around 1:00pm on the Friday. 62. In the circumstances we do not consider that there is any sound basis for a submission that the jury’s verdicts reflect a compromise because they felt under pressure. 63. There is a further matter relied on in challenge to the jury’s verdicts. It appears that a person accepted by all the parties to be a juror went on a Facebook site dedicated to the memory of the deceased. There was no formal application to admit fresh evidence under Section 23, but all parties invited the court to proceed as if the facts revealed were before the court by way of admission. The juror, after verdicts and sentence, posted the following comments: On 5 th March - “Disgusting sentence for M. Can’t believe that girl is almost free…and I’ve been there to hear her lies for three months. Devastated.” On 8 th March at 9:50am - “What a fucking bitch. Rape allegation so wrong. I was on the jury and wanted her for murder. Unfortunately we didn’t all agree.” On 8 th March at 10:06am - “Feel sorry for Ravi and Peters [the two males]. That bitch set it all up.” On 15 th March at 9:11am - “Had so many tears during three months of jury service. Having to listen to their lies was awful. Thought of poor Gagan all the time and still do. My mind was made up as soon as deliberations started. So was certain others but some fell for her lies. She wasn’t raped either. Just an excuse. Thought her barrister might get her off on that. Attempted rape is nothing. That’s why she didn’t go to police. Bet he didn’t even touch her. That cow needs to be in Holloway Prison. Them old roughs will sort her out.” 64. Ms Bennett-Jenkins also drew attention to another posting which she asserted must have been very shortly after verdict. Having regard to the way in which postings are recorded on the site, we are very doubtful that that is the case. It would be wholly wrong to proceed on that basis on the information before us. That other posting was relied on as showing access to the Facebook site very soon after verdict, leading to the suggestion that the juror must have been accessing the site during the trial. 65. As already stated, we are unconvinced by the argument as to the timing of the posting. In any event there is simply no evidence whatsoever that the juror accessed the site during the trial. 66. The primary focus of the Appellant’s submissions has been on the March postings, and in particular, the last one. It is argued that the juror, quite apart from the impropriety of her actions, has demonstrated hostility to the Appellants and has ignored what was common ground at the trial, namely that in August 2010 Singh had sexually assaulted Mahil. 67. The matter is, in our judgment, more nuanced than that. It is clear that the juror took against Mahil; but it is equally clear that this was as a result of the evidence she had seen and heard. She clearly saw Mahil as primarily responsible for what had happened and entertained a degree of sympathy for the two male Defendants. Ill-advised and reprehensible as her comments were, they were made after verdict and after sentence, and reflected her views on the trial. They represent inappropriate venting of emotion after the event, but do not provide a basis for inferring that the jury failed to follow the judge’s directions, or carried out impermissible extraneous research, or that this juror was discussing the events surrounding Singh’s death on Facebook with others prior to delivery of verdict. 68. Turning to the comments about the sexual assault, no one had suggested that Mahil had been raped. For understandable reasons the detail of the assault was not investigated at trial. Mahil’s evidence was summarised thus: Singh came to her bedroom and asked for a hug, which she refused. He pinned her down. There was a sexual assault on the bed. “He did not penetrate me. He stopped and I stopped him. I kicked him off with my right leg.” Singh changed from being aggressive to being vulnerable and apologised. We take the juror’s comments as demonstrating that she did not regard the sexual assault as serious and took the view that Mahil was making an unnecessary fuss about it. 69. Those informal and emotional comments on Facebook are not to be construed like a statute. The fact that she did not think much of Mahil’s complaints is clear. If she chose to express those views in the jury room, others were free to disagree. We note that Mahil was acquitted of murder. Deeply regrettable as this episode is, we are not persuaded that it contributes to the argument that the verdicts were inconsistent or unsatisfactory. 70. The summing up and the route to verdict document both proceeded on the basis that different verdicts against different defendants were possible. Some counts were to be viewed as alternatives to others. In the case of Mahil, the verdict showed that she was party to a plan to do serious violence to Singh at the house; in Shoker’s case, that he brought about Singh’s death with the necessary intent; in Peters’ case, that he was criminally negligent in participating in burning the car knowing that Singh was in the boot. In Peters’ case the jury were unsure that he was party to or involved in the violence at the house. In our judgment, the verdicts reflect the burden and standard of proof and a view of the evidence in the case to which the jury was entitled to come. The matters raised about pressure and about the conduct of one juror do not in our judgment suffice to call into question the validity of the verdicts. Ground One – Hostile Witness 71. This ground is concerned with Live Thorsen. Ms Thorsen was a housemate of Mahil who was in a position to give evidence about relevant background and about events taking place in the house on the night in question. 72. Mr Birnbaum argued that the judge should not have permitted the Crown to make Ms Thorsen hostile, and that additionally, he misdirected the jury about her status. Mr Birnbaum was critical of the fact that the application came after Ms Thorsen had responded to questions about a particular conversation that she had had with Mahil in which Mahil indicated that she knew something was going to happen shortly at the house. Thorsen’s evidence was that nothing was going to happen to the victim. Mr Birnbaum was arguing that because she had previously given two different dates for when this conversation had taken place, it was wrong to treat this as the trigger for making her hostile. 73. We are extremely doubtful about that proposition because it seems to us that the essence of her answer on this topic was that Mahil’s saying that nothing was going to happen to the victim did not accord with what Thorsen had said on previous occasions. To some extent this is beside the point because we have read the full transcript of Thorsen’s evidence in chief up to this point. It is perfectly clear to us that she was giving evidence in a way which was inconsistent with earlier statements she had made to the police, and which was intent on minimising any harmful evidence that she might give against Mahil. 74. That this was the case is confirmed by the fact that as soon as the application was made, the judge indicated that he had strong sympathy with it. The witness had already had opportunity in the witness box to refresh her memory from her witness statements, which had gone into a considerable degree of detail. Yet on many occasions, despite having the opportunity to consider her witness statement, was refusing to give evidence in accordance with it. He described her as an intelligent young woman who had been “taken to water from the trough many times”, but for some reason was refusing. 75. Mr Birnbaum himself commented to the judge that “the paradox is we are longing for her to come up to proof.” He acknowledged that if the judge thought it appropriate, the Crown would be entitled to treat her as hostile, and said that whether she was treated as hostile or not, he would cross examine a great deal of the material in her statements into evidence. The other defence counsel were neutral in this application. 76. In those circumstances we do not think there is anything in the criticism of the judge’s decision to permit the witness to be treated as hostile. It is recognised that the discretion of a judge to give a party leave to cross examine his own witness is absolute, and can only be raised on appeal in exceptional circumstances (see R v Williams (John) 8 Cr App R 133 ). These are not exceptional circumstances, but in any event we regard the judge as having correctly exercised his discretion. 77. Mr Birnbaum also criticised the way in which the judge put hostility to the jury. The judge said that being treated as hostile meant that when a witness was called by a party, if they failed to adhere to the statement they have made, and it appears that they may be doing that deliberately, then the party calling them is entitled to cross examine them and take them back to the statement. This direction and a similar one are criticised on the basis that there was no reference to a hostile witness as one who lied or wished to conceal the truth out of animus to the prosecution. 78. We do not accept this criticism. The use of the word “deliberately” by the judge, in our view, is sufficient encapsulation of the essential quality of a hostile witness, which is one not desirous of telling the truth to the court at the instance of the party calling him. The judge’s words were entirely adequate to convey to the jury the flavour of what is meant by a hostile witness. His further directions as to the use to which her evidence might be put cannot, in our judgment, be criticised. 79. After the witness was turned hostile, she proved largely compliant in coming up to proof. The fact that the evidence which she gave was not significantly different after being made hostile to that which appeared in her witness statement is neither here nor there. Nor is the fact that the Crown, in closing, relied on aspects of Ms Thorsen’s evidence. The jury’s task was to evaluate the whole of the witness’ evidence in deciding what they could rely on. That will have included the evidence she gave before being turned hostile as well as that given afterwards. Contrary to Mr Birnbaum’s submissions, the judge was not in error in permitting the jury to rely on what Ms Thorsen had said in her statements to the police. Nor was he in error in failing to direct the jury that the Crown had relied on aspects of her evidence. There is nothing in these criticisms. 80. Allied to this were criticisms of comments made by the judge about the evidence of all the housemate witnesses. He invited the jury to look carefully at their evidence and assess if they were accurate and reliable and had set aside feelings of loyalty to Mahil, in which case their evidence would be impressive. On the other hand, they had to consider if those witnesses were attempting to help Mahil, in which case their evidence might be less reliable. We consider that these balanced questions were legitimately posed in a case where those considerations were relevant. Ground Two – Submission of No Case 81. The judge rejected a submission of no case to answer at the close of the prosecution case. Mr Birnbaum argues that the case against her on murder was fundamentally weak. He points to evidence that at times during the months preceding the killing, Mahil wanted to avoid harm to Singh. This therefore could not be reconciled with a plan to kill him. He pointed to the unlikelihood of a planned killing at a house full of friends of Mahil. There was evidence of her distraught reaction after the violence in the house. After the event she had gone to the police. Although she had initially lied, that was because of her brother’s instructions, and she later substantially told the truth. 82. The act which caused the death of Singh, namely the burning of the car, must have been spontaneous, and thus not part of a plan to kill him. Taken at its very highest, the evidence merely showed a plan that some harm, albeit not serious, was all that Mahil had assented to. 83. These arguments seem to us to be essentially matters for a jury to consider. The judge rightly left Count 1 for the jury’s consideration. There was, in our judgment, sufficient evidence. This Appellant had a motive to wish harm to the deceased. Although at times her wishes had fluctuated, she met Shoker and Sonny on the Wednesday before the attack, having previously sent a compromising text to Shoker suggesting that she was prepared to go through with an attack on Singh. There was a similar text to another friend, Gurpal, sent on the following day. The evidence showed that she had lured the deceased to her house late on the fatal night. A housemate, Becky Edwards, and Live Thorsen (depending on the jury’s view of her), had given evidence that the Appellant had indicated that something was going to happen to the deceased on the Friday night. The Appellant collected Peters and Shoker from Brighton station and took them to her house. After the deceased arrived, she led him to the room in which he was attacked, having asked her housemates to vacate the ground floor before he arrived. 84. She later discouraged them from going to investigate the struggle taking place downstairs. She ignored cries from the deceased for help while he was being attacked. She was aware of his body being removed to the Mercedes and took no step to prevent its removal. She made no call to the deceased or Shoker in the immediate aftermath. She had seen Peters and Shoker produce gloves and a sheet beforehand. She did not report those events to the police on the night, and when later interviewed, told significant lies. There was, in our judgment, quite sufficient evidence to support Count 1. Ground Three - A renewed submission to stop the case on Counts 1 and 2 should have been allowed 85. At the close of the evidence the murder submission was repeated. By then Count 2 had been added as an alternative to the indictment and a submission was made in relation to that as well. By this point all three Appellants had given evidence, and evidence had been called from some witnesses on Mahil’s behalf supporting her case that she was reluctant to have Singh harmed. There was also evidence from her brother, accepting that he had encouraged Mahil to go through with a plan to discipline Singh, and that he had told her to lie to the police. 86. As to the murder, we take the view that the position had not materially changed. Such evidence as was helpful to the Appellant was merely evidence for the jury’s consideration to be evaluated alongside evidence adduced by the Crown which implicated her. The matter remained one for a jury to consider. 87. As to Count 2, this had been added in Mahil’s case on the basis that it would be limited to violence occurring in the house. We note that Mr Birnbaum’s submissions on this count at this stage to the judge accepted that there was a case that Mahil intended some harm to be done to Singh. Once that was accepted, it was, in our judgment, a matter for the jury to assess on the totality of the evidence whether that harm encompassed really serious bodily harm. Even in the absence of such a concession, it was clearly a matter for the jury to assess whether there was a plan involving the infliction of grievous bodily harm of which Mahil was part. Ground Four – Sonny’s Lies 88. There was an older and apparently respected Sikh man referred to as Sonny who was a friend of Shoker and known to Mahil, and who had become involved in this affair. He was said to have taken a poor view of the deceased’s behaviour towards women. He was going to be one of those who attended at Mahil’s house when the deceased was lured there. However, late in the day Sonny withdrew and Peters was brought in to accompany Shoker instead. 89. On any view Sonny was involved in the matters surrounding the case. He also met the male defendants after the driving of Singh’s car back to London, and before the car was burnt. He was interviewed by the police, but not charged, but his name naturally featured in the trial, and the jury asked if he was going to be called as a witness. 90. Mr Birnbaum wanted to make use of the fact that Sonny had lied to the police in his interviews. However, he did not want to call Sonny because Sonny was an untruthful witness. Accordingly, he sought to secure admissions of facts setting out a series of lies which he asserted Sonny had told in his interviews. He argued that if the fact of lies was relevant, then the other Defendants had no locus to object. See Lobban v The Queen [1995] 1 WLR 877 . 91. He submitted that the relevance of Sonny’s lies to Mahil’s defence was (a) they were consistent with the theory that Sonny was involved both in a plan to attack Singh and in his killing, and that he deceived Mahil about the purpose of getting him down to Brighton; (b) to demonstrate that Mahil had been let down by a number of men, including Sonny, who had lied to protect himself to the point of denying that he even knew Mahil; (c) to consider whether the abduction of Singh was linked to a plan by Sonny to blackmail him over the text he had sent admitting attempted rape of Mahil; (d) to show that Sonny’s lies to the police were much more extensive than those told by Mahil. 92. The Crown objected on the basis that this evidence was not relevant. Mr Birnbaum submitted in line with Lobban , that the threshold of relevance is a low one where a Defendant is seeking to adduce evidence. 93. It was common ground between all parties that Sonny was in some way involved in these events. Each of the Defendants gave evidence giving an account of his involvement insofar as it affected them. Assuming he had lied to the police, as appears not to have been seriously in issue, we have come to the conclusion that that fact was not relevant to Mahil’s defence in any of the ways contended for by Mr Birnbaum. The theory that he lied because he had deceived Mahil about the purpose of getting him to Brighton is simply speculative, as is the blackmail theory. 94. A comparison of who had told more lies to the police had no relevance at all. The assertion that Mahil had been let down by a number of men including Sonny would not be evidenced by the fact that he had lied to the police. At one point in the argument, as Mr Birnbaum submitted to the judge that the relevance of Sonny’s lies was that they supported the theory that he was involved, both in a plan to attack Singh and in his killing, and that he deceived Mahil about the purpose of getting him down to Brighton, Mr Birnbaum posed the question “if he had nothing to hide, why tell so many lies?” 95. It seems to us, as the judge himself observed, that there may be many reasons for lies told by Sonny, and it was speculative to assume that they supported the theory put forward by Mr Birnbaum. Mahil had, in her own evidence, had asserted that she had been deceived by Sonny into luring Singh to her house. But the fact that he may have lied in interview to the police about matters relating to this case cannot of itself support her. 96. Sonny was, it was admitted, physically available to give evidence. He might have explained why he lied, but Mr Birnbaum was, understandably, unwilling to call him. What he sought was to deal with the matter by way of admissions. 97. The judge refused the application, saying that he was not persuaded that the evidence had such relevance as Mr Birnbaum submitted. He took the view that the jury could be misled if the evidence went before the jury in the form proposed. Since the witness was available, Mr Birnbaum had to decide whether he wished to call the witness. He did not think it appropriate that the evidence in respect of Sonny should go before the jury in the form advanced. 98. The judge’s ruling seems to be premised on a mixture of the irrelevance of the proposed evidence and the proposed method of proof, namely by admissions which the other parties were not prepared to make. After careful consideration we have come to the conclusion that the Crown and the judge were correct in saying that the proposed evidence was irrelevant. To show that a person not before the court, but who was involved in events, had lied to the police, did not evidence the reason for lying other than perhaps a general desire not to be implicated in the events. However, what it could not demonstrate was any of the specific matters upon which Mr Birnbaum wanted to rely. Thus, the evidence was irrelevant and rightly excluded. Ground Five – The Structure of the Summing Up 99. Mr Birnbaum, who had presented his submissions on behalf of Mahil to the jury in chronological form, submitted that that was the only proper way of fairly putting the matter to the jury. Since the judge had not adopted that approach, the summing up was inadequate and unstructured. 100. Each member of the court has considered the summing up in its entirety. The judge chose to deal with the matter by themes as opposed to a strict chronological survey. That is a choice which is open to a trial judge, who will present the matter to the jury in the way he judges is best calculated to help them. We have to take a view on this. This was not a summing up read from the judge’s notebook from start to finish. It was a summing up arranged by topics which dealt with discrete issues or areas of the case in a balanced way. We are not persuaded that there is anything in this ground. 101. Mr Birnbaum made some additional factual criticisms which, to us, appeared to be little more than jury points which a judge is not obliged to make at every available opportunity. This ground must fail. Ground Six – The Twenty-One Years Remark 102. Live Thorsen had given evidence that Mahil had told her that Shoker had said to her that he was willing to go to prison for 21 years to protect her. The judge had directed the jury that this was not evidence admissible against Shoker, but had not directed the jury in those terms with regards to Mahil. Mr Birnbaum argued that he should have done so and that failure to do so would involve the jury indulging in unacceptable mental gymnastics. 103. It seems to us that the significance of this remark depends on when it was said. Mr Birnbaum contends that it was not made until the morning of the 26 th February, that is the morning after the murder. By this time Mahil had had a lengthy overnight conversation by telephone with Shoker. If so, it would not be probative evidence. 104. Mr Jafferjee QC took us through Thorsen’s evidence. It seems to us that Thorsen’s evidence did not necessarily show that the remark, (which was not itself disputed by Mahil), was made in the conversation on the morning of 26 th February. It was open to the jury to conclude that the remark had been made before the murder and/or if mentioned on 26 th February was in confirmation of an earlier discussion. Becky Edwards, another housemate, had given evidence that on the evening before the murder, Mahil had spoken to her, talking in terms of Singh being killed and that amounting to justice. Mahil would not be directly involved. 105. This evidence was supportive of the Crown’s submission that the remark to Thorsen had been made prior to the murder. There was material upon which the jury could have concluded either way. As we understand it, there was no objection to this evidence being left to the jury at the time of the trial; it is a matter which has subsequently occurred to defence counsel. That may be an indication of its relative unimportance in the general scheme of things, but in any event the direction now proposed by Mr Birnbaum was not required. The parties dealt with it at trial by submissions to the jury as to whether the remark was relevant or not. 106. We are unpersuaded as to the point about mental gymnastics. The judge explained clearly why evidence relating to the remark could not be evidence against Shoker. That left it open to the jury to act upon it in the case of Mahil. The jury acquitted her of murder which suggests they did not use this evidence against her. A minor point is reduced to vanishing point. Ground Seven – An Unfair and Illogical Comment? 107. Specific criticism was made about a comment made by the judge in inviting the jury’s attention as to the defence point as to why Mahil might have invited the deceased to her house at a time when her flatmates were present. We have read the relevant passage. The judge put forward a point made on behalf of the Appellant and put a counter-suggestion, making it plain it was for the jury to consider which points they accepted and which they rejected. We do not think there is anything in this point. Ground Eight 108. Mr Birnbaum alleges a misdirection in the summing up by failure to direct the jury that there could be no joint enterprise to commit the Section 18 offence if she had been prevailed upon to join a plan merely to beat up the deceased in circumstances where another party to the plan intended that he be killed. We do not consider that there was a misdirection. 109. If A and B agree to attack and cause serious injury to C, and carry out that plan but B then goes further and kills C, that does not absolve A from responsibility for the initial attack with intent to do serious injury. A is in those circumstances not responsible for the killing of C. Even if B harboured the secret intent to kill at the time of the attack, that would necessarily include the intention to cause grievous bodily harm, so a joint enterprise to that effect would exist. The fact that B misled A as to his ultimate intention would not preclude a shared intention. Ground Nine – Brain Damage 110. Mr Birnbaum argued that there were no grounds upon which a reasonable jury could be sure that the deceased sustained brain damage at the Appellant’s house rather than after he left it. We disagree. This was entirely a matter for the jury’s assessment of the evidence. A neighbour saw two men removing an unconscious man wrapped in a duvet. Shoker had given evidence that he had struck a number of blows to the head of the victim. He said that the camera tripod had been used to hit the victim’s head as well (he said by Peters). The tripod undoubtedly had damage consistent with such use. There was evidence from the flatmates of noise consistent with a prolonged attack. Medical evidence was that the brain injury was consistent with at least five or more blows to the head. It was an injury of sufficient severity, potentially to lead to unconsciousness, and death if not attended to. We consider that in the circumstances it was open to the jury to infer that the brain injury had been sustained during the attack in Mahil’s house. 111. It follows therefore that none of the grounds advanced by Mr Birnbaum have any cogency. We are in the circumstances satisfied that Mahil’s conviction was safe. Her appeal against conviction is dismissed. Shoker’s Appeal Against Conviction 112. Shoker advanced two grounds. The first related to the asserted inconsistency or unsatisfactory nature of the verdicts. As noted, Ms Bennett-Jenkins advanced arguments in support of Mr Birnbaum’s. We have dealt with these matters under Mahil’s ground ten, starting at paragraph 46(above). Our conclusion was that this ground does not succeed. Shoker’s Second Ground 113. This is a discrete ground based on an incident which occurred early in Shoker’s cross examination by Mr Jafferjee QC for the Crown. 114. Mr Jafferjee asked this Appellant what he had said to a man in court a few days before when he left the dock. The thrust of the question and the brief exchanges which followed were to suggest that the Appellant had made an aggressive remark to the individual along the lines of “what’s your problem?” That individual was sitting in counsel’s row and was a pupil of Ms Whitehouse, the Crown’s junior counsel. The Appellant accepted he had said something along those lines because the person was giving him a funny look. He denied saying it or meaning it in an aggressive way. Counsel then suggested that this behaviour contradicted the image the Appellant had painted of himself as a mild mannered individual. 115. No advance notice of this line of questioning had been given under the bad character rules. Ms Bennett-Jenkins made submissions to the judge couched in vehement terms and highly critical of the Crown. Mr Jafferjee indicated that he had given the matter consideration, that he had asked the questions to counteract the Appellant’s portrayal of himself, and that he had considered he was entitled to do so without notice pursuant to Section 98(1)(b). That subsection deals with evidence of misconduct in connection with the investigation or prosecution of the offence. 116. The judge immediately indicated that he was not impressed with this justification. Whereupon Mr Jafferjee submitted that he would have been entitled to adduce the evidence pursuant to Section 101(1)(e), that is evidence to correct a false impression given by a defendant. However, he had not laid the ground for that by giving the required notice. 117. Ms Bennett-Jenkins’ submission to the judge was that her client’s trial had been irremediably prejudiced and that the jury must be discharged in his case. Her client was a young man of good character with supportive character references and what had happened would be very damaging to him. The absence of notice had deprived her of the opportunity of considering the matter in advance and marshalling evidence to deal with the situation if leave had been given. 118. We are content to proceed on the basis that the judge’s reaction that this matter did not come within Section 98(1)(b) was correct. Leave had not been granted under Section 101(1)(e). On the basis of our assumption as to Section 98(1)(b), the Crown had made a misjudgement, but we do not think that this was a deliberate ambush. The question for us and for the judge was how the situation which had emerged should be handled in the absence of justification for the question. The judge’s conclusion was that the matter could be handled by appropriate directions to the jury in due course. That decision is challenged on the basis that there was no measure which the judge could take which could remedy the position. 119. The exchange between counsel and the Appellant was a short one, in which the Appellant acknowledged his remark, explained that it was not intended to be confrontational, and was in response to looks he had been given. He said he was not an aggressive or violent person when asked by Mr Jafferjee “you are not the gentle charming person you led others to think you are?” 120. The judge rightly said that there has to be a high degree of necessity before a judge will discharge a jury. If such necessity arose then the jury would be discharged irrespective of the stage the trial had reached. However, he did not believe that such action was warranted. According to the transcript Mr Birnbaum QC’s reaction at the time was that Ms Bennett-Jenkins was making a mountain out of a molehill. We know not, but it may be that he had tactical interests of his own to serve. 121. It is, however, instructive to note that at the time the judge had made no note about the episode since he did not regard the exchange as one worthy of inclusion in it. He said that Shoker had maintained his composure throughout his evidence, and had not been unsettled by the question, as had been submitted. In any event it was the witness’ response to the questions which was the evidence, not the questions. He regarded the mischief done as “very minimal” and said he had no hesitation in finding that the application was misconceived. 122. In our judgment, the handling of this matter was very much within the discretion of the judge. His feel of the case is important, as was his appreciation of the impact or lack of it that this episode had had. He offered to say something to the jury at that stage if Ms Bennett-Jenkins desired, but pointed out that that might be counterproductive in highlighting something to which they had attached no significance. It does not appear that that invitation was taken up. He also indicated that he would consider sympathetically an application by Ms Bennett-Jenkins to adduce evidence on the matter. Such a course was not taken. 123. When the judge came to sum up, he gave Shoker a full good character direction. We do not criticise that direction, but we note that during the course of his evidence, the Appellant acknowledged being party to a deceit being practised on the deceased, going to the house to beat him up, (in defence statement but retracted in evidence), and gratuitously hitting him with sufficient force to fracture his own hand. He had also allowed, what he claimed was a dead body, to be burnt in a stolen car. 124. In addition to giving the Appellant a full good character direction, the judge referred to the exchange with Mr Jafferjee. He repeated Mr Shoker’s account that this was an enquiry rather than aggression. He told the jury that the episode in no way constituted evidence against Shoker, and told them to put it entirely out of their minds. This was an emphatic direction. 125. We have come to the conclusion that the significance attributed to this episode by Ms Bennett-Jenkins is, notwithstanding her submissions, much overstated. We are satisfied that the judge’s handling of the matter was the appropriate course to take. That includes the way in which he dealt with the matter in the summing up. This was not a situation which required discharge of the jury; the matter could properly be dealt with in the context of a continuing trial. Accordingly, this ground does not succeed. Conclusions As to Appeals Against Conviction 126. None of the grounds advanced before us, whether taken individually or cumulatively, begins to make us doubt the safety of these convictions. As analysed, none of the grounds begins to advance either Appellant’s case in this respect. Accordingly, both appeals against conviction are dismissed. Mahil 127. Mahil appeals against her six year sentence for causing grievous bodily harm with intent by leave of the Single Judge. 128. In accordance with the judge’s direction to the jury, she was convicted on the basis of the jury being sure that she intended really serious harm to be caused, that she played a part in bringing about such harm by luring the deceased to the house and leading him down to the bedroom where he was set upon and caused the really serious harm of brain damage. 129. In assessing the seriousness of her offending, the judge made the following additional findings of fact. After having been sexually assaulted by the deceased, and notwithstanding the fact that her brother was a police officer, she had not reported the incident to the police. Her claim that the deceased had been harassing other women had not been supported by any independent evidence in the trial except from one University student who had shrugged off his advances. Prior to the night of the incident, she had decided that the deceased should be seriously harmed and had enlisted the support of Shoker whom she knew was besotted with her. The offence involved planning and the betrayal of the trust of a man whom she had described as depressed. She had lured him to her home in Brighton at eleven o’clock at night. Prior to his arrival, she had collected Shoker and Peters from the railway station and taken them to her home. When the deceased arrived early, she had made him wait outside her home for nearly two hours before letting him into the house. She had led him to her bedroom where she knew Shoker lay in wait. She had seen the beginning of the attack and had then left. As the noise of the attack continued and the deceased was shouting her name she had done nothing to help him. The attack had caused a significant brain injury which was potentially life threatening. She had seen Shoker and Peters drive away in the deceased’s car knowing that they had forcibly removed the deceased from the house and had put him into the car. When she had found out what had later happened in a lengthy telephone conversation with Shoker she had showed no remorse. She had lied to his sister about what had happened and had lied to the police. Her account to the jury had been rejected. From all of this, the judge was satisfied that she was manipulative, vengeful and deceitful. 130. The judge stated that he bore in mind matters relied upon by Mr Birnbaum, the significant features of which can be summarised as follows. There was evidence that she was a naïve and trusting twenty year old Sikh woman who was a promising medical student of exceptional good character. Prior to the incident in August 2009, she had helped the deceased and had prevented him from committing suicide when his father had been murdered in 2009. In August 2009, she had been sexually assaulted by the deceased and had thereafter been subjected to psychological abuse by being bombarded with messages and texts from him. For months she had resisted and discouraged suggestions by others that he be harmed. By February 2011, she believed that he had been harassing other young Sikh women. Texts and phone evidence established that she had been reluctant to arrange and go through with the meeting at her home. There was evidence from her housemates that she was shocked and upset once the violence commenced. She voluntarily went to the police. She had been charged with murder and had spent months preparing for and being part of a murder trial in respect of which she was eventually acquitted. 131. The judge stated that he had carefully considered the Sentencing Council’s Assault Guideline. He specifically stated that the seriousness of the injury was a factor indicating greater harm. By itself, that would have led to a starting point of six years imprisonment prior to consideration of aggravating or mitigating factors. Having taken into account all of the above facts, the judge concluded that the appropriate sentence was one of six years. 132. Mr Birnbaum submits that, in arriving at six years, the judge gave insufficient weight to the mitigation and made factual errors in assessing the seriousness of her offending. The judge ignored the cultural dimension of the case when stating that she failed to contact the police and change her phone. He failed to take into account evidence from her friends that she genuinely believed the deceased was harassing other women. He forgot he had been told there was evidence of harassment in the unused material which did not need to be deployed in the trial. He failed to accept powerful evidence of her shocked reaction to what had happened. He submits that a sentence of six years is manifestly excessive. 133. We are not persuaded that the judge incorrectly assessed the overall seriousness of the offending or failed to take into account all relevant mitigating factors. In accordance with the Guideline, there were two factors indicating greater harm, namely, an injury which was serious in the context of the offence and a sustained assault. There were factors indicating higher culpability, namely, significant preparation, deliberate targeting of a vulnerable victim and, by her actions in luring the deceased to her home and involving herself with Shoker and Peters, she was also taking a leading role in a group. The starting point for a S.18 offence with greater harm and higher culpability is twelve years imprisonment. There were additional aggravating factors as particularised by the judge. Even allowing for all matters raised in Mr Birnbaum’s submissions before the judge and before us, six years imprisonment cannot possibly be regarded as a manifestly excessive sentence. Mahill’s appeal against sentence is dismissed. Peters 134. Peters appeals against his twelve year sentence for manslaughter by leave of the Single Judge. 135. In accordance with the judge’s direction to the jury, he was convicted on the basis of gross negligence in that the jury were sure he knew that the deceased was in the boot of the car, he failed to take reasonable steps to check whether he was alive or dead, he participated in setting fire to the car, he thereby caused his death, that those actions gave rise to a serious and obvious risk of death and the conduct was so bad that it amounted to the crime of manslaughter. 136. In assessing the seriousness of his offending, the judge made the following additional findings of fact. The psychological reports established that Peters had significant learning difficulties and would have been more easily coerced into acting than others. In this regard, he had played no part in any planning. He had gone from London to Brighton and had been present at the house as backup if needed. He had done nothing in the house. He and Shoker had left the house together with the deceased inside the boot of the car. He had not intended death or serious injury by his actions after that, but he had played his part in setting fire to the car and the deceased in circumstances where the car had been driven to a secluded area, the deceased had been doused in petrol taken to the scene and both had been set alight. After burning the car, he had taken the deceased’s credit card and using a PIN number which had been extracted from the deceased earlier that night he had withdrawn £300 as payment for his services. He had shown remorse during the trial. He was of effective good character. 137. In passing sentence, the judge indicated that he had considered a number of manslaughter sentence cases relating to deaths after houses had been set on fire. They indicated that a sentence in the region of twelve years imprisonment might be appropriate after a discount for a plea of guilty. The judge distinguished those cases on the basis that such convictions were for unlawful act manslaughters where there was danger of neighbours being put at risk by the fire. The conviction here was for gross negligence manslaughter where there was no risk to neighbours, but knowledge that there was someone in the boot and that there would be certain death from the fire if the person in the boot was not already dead. He concluded that the appropriate sentence was twelve years. 138. Mr Barraclough has drawn our attention to the case of Mahmood [2012] 2 Cr App R (S) 63 , which he submits supports the judge’s analysis as to the appropriate range of sentences for manslaughter in deliberate arson cases and indicates a higher range of sentence than is appropriate for gross negligence manslaughter. In Mahmood , reference was made to there being a fairly consistent pattern of 12 to 15 year sentences being imposed in manslaughter arson cases. We make no findings in relation to whether such a range remains appropriate. The cases cited in Mahmood in support of the range did not include any of the cases referred to below, all of which indicate an uplift in manslaughter sentences generally. In any event, we derive little assistance from the manslaughter arson cases. In our judgment, the judge rightly distinguished them from the facts of this case. We do not accept that one can infer any hierarchy of sentences between unlawful act manslaughter cases and gross negligence manslaughter cases. Both involve different aspects of involuntary manslaughter. Each covers a very wide spectrum of cases in respect of which there is no Guideline as to what sentence should be imposed. Each case will turn on its own facts. The ultimate sentence will depend on the court’s assessment of the seriousness of the offence having considered harm and culpability issues and all mitigating factors. 139. Two clear principles which follow the implementation of the Criminal Justice Act 2003 have been identified in sentencing decisions of this court in relation to manslaughter cases. First, Section 143(1) of the Act focuses direct attention on the harm actually caused by the offence which in such a case always involves harm at the highest level. Secondly, the effect of Schedule 21 of the Act has been to increase the punitive element in sentences for murder and this has had an inevitable effect on sentences for manslaughter on the basis that the statutory intention was to underline that crimes which result in death should be treated more seriously and dealt with more severely than before. Support for these propositions comes from cases such as Wood (Clive) [2010] 1 Cr App R (S) 2 ; Appleby (Attorney General’s Reference No 60/2009 ; Barrass [2012] 1 Cr App R (S) 80 ; Holtom [2011] 1 Cr App R (S) 18 ; and Garg [2012] EWCA Crim 2520 , the last three decisions involving gross negligence manslaughter. 140. Barrass was a manslaughter case where the defendant was the deceased’s brother and carer who was grossly negligent in looking after his sister. In dismissing the appeal against sentence on the particular facts of that case, Rix LJ observed: “… Appleby we consider has created a situation in which there has now been a step change in the tariff in sentencing in such cases (that is gross negligence manslaughter cases) each of which of course ultimately rests on its own particular facts, but in general by reference to a proper consideration of the … fatal consequences of the offences.” 141. Holtom was a manslaughter case where the deceased was killed by the collapse of a brick wall as a result of gross negligence in the workplace. In dismissing the appeal against sentence on the particular facts of that case, Sweeney J observed: “… there is now greater emphasis to be placed on the fatal consequences of a criminal act … A similar consideration applies to cases of manslaughter by gross negligence in the work place.” 142. Garg was a manslaughter case where the deceased was killed by gross medical negligence. In the course of dismissing the appeal against sentence on the particular facts of that case, Lord Judge LCJ referred to the above principles and all of the above-mentioned cases and observed: “The decisions in Holtom and Barrass demonstrate that the principles enunciated in general terms in relation to sentencing in manslaughter cases in Wood and Appleby apply to cases involving gross negligence manslaughter generally.” 143. In his submissions before us, Mr Barraclough conceded that the jury’s verdict means that Peters’ offending involves a high degree of harm and culpability. Nonetheless, he submits that, in deciding what the appropriate sentence should be, the judge failed to give sufficient consideration to Peters’ learning difficulties, his high degree of suggestibility as set out in the psychological reports, the fact that the jury must have accepted that it was at least possible that he had been threatened with violence which had caused him to go to Brighton, his good character, the fact that he was not part of any plan to harm anyone, and the possible involvement of Sonny in the removal of the body from the house. In all the circumstances, he submits that a sentence of twelve years is manifestly excessive. 144. In the context of the case, the harm was at the highest level. An ambitious, talented young man died. The victim personal statements underline the great loss that has been and continues to be suffered by his family and friends. There was no intention to kill or cause serious injury. However, the basis of conviction included particular factors of high culpability. Peters knew that the deceased was in the boot of the car. He failed to take any reasonable steps to check whether he was alive or dead. He nonetheless participated in setting fire to the car in circumstances where petrol taken to the scene was poured over the car and the deceased. There was a serious and obvious risk of death such that the jury were sure that the conduct was so bad that it amounted to the crime of manslaughter. Put simply, there was a virtual certainty of death arising from the failure to take any reasonable steps to check he was alive. In our judgment, the combination of great harm and high culpability lead us to conclude that, even allowing for the mitigation, this is a case of particular gravity which fully justifies a sentence of twelve years imprisonment. Peters’ appeal against sentence is also dismissed.

2013_05_09-3168.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/673/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/673

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[2013] EWCA Crim 712

EWCA_Crim_712

crown_court

Neutral Citation Number: [2013] EWCA Crim 712 Case No: 201200669 C5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT The Hon. Mr Justice Treacy T20117239 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/05/2013 Before : LORD JUSTICE LEVESON MR JUSTICE FOSKETT and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : DAVID ALLAN NORRIS Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2013] EWCA Crim 712 Case No: 201200669 C5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT The Hon. Mr Justice Treacy T20117239 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/05/2013 Before : LORD JUSTICE LEVESON MR JUSTICE FOSKETT and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : DAVID ALLAN NORRIS Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tim Owen Q.C. and Aaron Watkins (instructed by G. T. Stewart, London ) for the Applicant Mark Ellison Q.C. and Alison Morgan (instructed by Crown Prosecution Service ) for the Crown Hearing date : 10 May 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. Just over 20 years ago, an 18 year old young man, Stephen Lawrence, was murdered in circumstances which have become seared in the minds of the public. Five youths were arrested; two were charged but proceedings were abandoned by the Crown Prosecution Service on the grounds of insufficiency of evidence; a police review led to no further action. A private prosecution was then commenced against the five who had originally been arrested. In relation to two (including this applicant), the prosecution was abandoned at committal. At the trial in the Central Criminal Court of the other three (including Gary Dobson), acquittals followed a ruling by Curtis J to the effect that the identification evidence was unreliable. 2. Following an inquest in February 1997, the Daily Mail publicly accused the five youths of murder and invited civil proceedings: none was instituted. In the following July, a public inquiry was established, chaired by a retired High Court Judge, Sir William Macpherson of Cluny. In February 1999, the inquiry concluded that the Metropolitan Police was institutionally racist and was highly critical of the original investigation. It was recommended that the rule against double jeopardy (preventing a second trial for the same offence) should be abrogated: this change was effected by s. 76 of the Criminal Justice Act 2003. 3. In 2006, advances in forensic science led to a review of the forensic evidence in the case. Following the results of that investigation, on 23 October 2010, the Director of Public Prosecutions applied to the Court of Appeal to quash the acquittal of Gary Dobson on the grounds that there was new and compelling evidence; that step was not necessary in relation to the applicant against whom the private prosecution had been abandoned before he was placed in jeopardy of conviction. On 18 May 2011, Dobson’s acquittal was quashed (see R v Dobson [2011] EWCA Crim 1256 , [2011] 2 Cr App R 8 ) and the path was clear for his prosecution alongside that of the applicant. 4. That short history provides the background circumstances to the commencement of these proceedings so many years after Stephen Lawrence’s death. It underlines the remarkable determination with which Neville and Doreen Lawrence have pursued justice for their son, and is important background in the context of the case, not just because of the issues relating to policing and criminal justice that it has exposed over the years but also because it explains the delay. 5. Although an appropriate way to start this judgment, however, these facts must now be put entirely to one side. David Alan Norris, the applicant, was entitled to a trial in accordance with the law, based on the presumption of his innocence. He is equally fully entitled to challenge the way in which that trial was conducted: this application for leave to appeal has proceeded entirely on that basis. 6. As for the trial, on 14 November 2011, the applicant (by then 35 years of age), and Gary Dobson appeared at the Central Criminal Court before Treacy J and a jury. On 3 January 2012, both were unanimously convicted of murder. Having regard to their age at the time of the offence (that is to say, under the age of 18 years), both were sentenced to detention at Her Majesty’s pleasure, an indeterminate sentence which is the juvenile equivalent (and of similar effect) to imprisonment for life in the case of an adult. The applicant was ordered to serve a minimum term of 14 years 3 months. Both men applied for leave to appeal against conviction; having been refused leave by the single judge, both renewed their applications although Dobson has since abandoned his attempt to appeal. 7. In these circumstances, the court considered the conviction of the applicant only. Having refused to grant an application to adjourn the hearing (and authorise funding for the applicant to obtain further fresh expert evidence), at the conclusion of the hearing, we announced that the application would be refused. Having regard to the public interest in the case, we decided to put our reasons into writing. These we now provide. The Facts 8. It was just after 10.35 pm on 22 April 1993 that Stephen Lawrence was waiting at a bus stop on Well Hall Road, Eltham with a friend, Duwayne Brooks. No buses arrived and the two walked south towards the Well Hall roundabout to see if any were coming. As they reached the area just beyond the junction of Dickson Road with Well Hall Road they turned around and started back towards the bus stop. By the time they reached the area of the zebra crossing, there was a group of about five white youths crossing over Well Hall Road from the north east corner of the roundabout coming toward them. As heard by Brooks, one of the group said, “What, what nigger”. Brooks turned to Lawrence and told him to run. 9. The group caught them in the junction of Dickson Road. Brooks managed to run off north up Well Hall Road. Lawrence did not and the group quickly surrounded him. He was stabbed twice to the upper torso: the first wound tracked vertically downwards from about the middle of the right collar bone and severed an artery; the second wound went into the left shoulder tracking slightly upwards from horizontal and also severed an artery. An eye witness saw him go to the ground, roll onto his side and pick himself up before running after Brooks up Well Hall Road. Other witnesses saw the group depart up Dickson Road. Lawrence managed to run just over 200m before collapsing on the pavement opposite the junction with Downman Road. At 10.43 pm, Brooks called the emergency services; the police arrived seven minutes later. Lawrence was taken to hospital where, tragically, he died shortly after. In the opinion of Dr Richard Shepherd, the pathologist, who carried out the post mortem examination, death was caused by the loss of blood occasioned by the cutting of major blood vessels caused by the stab wounds. 10. A police investigation started. Stephen Lawrence’s heavily bloodstained clothing was removed at the hospital as quickly as possible and secured in sealed red hospital sacks. His blue cardigan, a ‘Raiders’ jacket and white vest were put into one bag; his green elephant cord trousers were put into another along with his underclothes, socks and shoes. All were handed to the police whereupon the wet items were dried and the jacket photographed. They were then secured in a disused police station at Eltham Police Station, being transferred on 28 April 1993 to the Police Forensic Science Laboratory in Lambeth where they were kept pending examination by forensic scientists. 11. The focus of the police quickly turned to a number of young men including this applicant, then 16 years 7 months. On 7 May 1993, the police went to the home of his parents in Chiselhurst. He was not there but a search led to the recovery of a pair of blue jeans, found on the floor of his bedroom; and a blue sweatshirt, found in his bedroom wardrobe. The exhibits were placed in bags which were then sealed and taken initially to Bromley Police Station before being moved to Eltham Police Station and placed (either in boxes or in plastic bags) in the same disused cell as the Lawrence exhibits. On 10 May, the applicant was arrested after voluntarily attending the police station; when interviewed, he declined to answer questions. Thereafter, on 15 May and 8 June 1993 respectively, these bagged exhibits recovered from his home were also taken to the laboratory in Lambeth. 12. The first scientific examinations (at various times between 1993 and 1995) concerned a search for fibres which might have been transferred from the applicant’s clothing to Lawrence’s clothing and not the other way round. In order to do so, the scientists made contingency tapings by systematically placing pieces of a type of sellotape onto the clothing in order to remove fibres. The strips of tape were then attached to acetate whereupon the acetate sheets were heat sealed into a polythene bag. At that stage, the tapings were subjected to examination with the use of a microscope. In addition, the applicant’s clothing was screened using standard procedure for blood. 13. On 17 May 1993, Yvonne Turner, a Forensic Scientist, took fibre tapings from the applicant’s jeans and, on 11 June 1993, did the same in relation to the sweatshirt. On 28 July 1993, she took fibre tapings from Stephen Lawrence’s ‘Raiders’ jacket and green trousers. 14. In 1995, the ambit of the examinations so far undertaken was slightly broadened when another forensic scientist, Dr Angela Gallop, instructed by Mr and Mrs Lawrence, reviewed the scientific examinations. The blood screening was extended to further areas of the suspects’ clothing (including those of the co-accused, Gary Dobson). Some limited examinations were also carried out to look for possible fibres transferred from Stephen Lawrence’s clothing to that of the suspects. In short, however, there was no relevant scientific evidence found in relation to the jeans and sweatshirt. Consequently, unlike his co-accused, the applicant was never charged with any offence relating to this incident. 15. After the disaster of the first investigations and trial, there was a renewed determination to solve this murder and, starting in 2006, a re-investigation of the exhibits was commissioned by the police using a new team of scientists from LGC Forensics, a laboratory that, since the late 1990s, had begun to develop an expertise in “cold-case” reviews. This consisted of a fresh consideration of the sellotape lifts or tapings which had been made by the Forensic Science Service of Stephen Lawrence’s outer clothing. In particular, they decided to examine these tapings from Stephen Lawrence’s outer clothing to see if there was any evidence of paint which could have been transferred from a scaffold pole recovered from near the scene. This examination exposed a series of connected findings which culminated in the discovery of new evidence. 16. The main findings related to the co-accused of this applicant, Gary Dobson. But there were important findings in relation to the applicant as well. In particular, a total of seven fibres (six matching Stephen Lawrence’s green cord trousers and one matching his red polo shirt) were found on the taping made by the Forensic Science Service in June 1993 of the sweatshirt recovered from the applicant’s bedroom. 17. In addition, the jeans which had been taken from the same bedroom were re-examined. From within the debris collected after examination, there were two short, dark brown coloured cut hairs (1 mm and 2 mm in length). The 2 mm long cut hair was sent to the USA for mitochondrial DNA (mtDNA) testing because it was a hair without a root. It is worth explaining that mtDNA testing focuses on the DNA within the hair cells that is passed down the maternal line. The number of profiles available for comparison in mtDNA testing is less, so are shared by more people in the population. The “match probability” within a population group of mtDNA profile is therefore generally higher than might be the case in the more commonly used DNA test. Having said that, however, the profile matched that of Stephen Lawrence and was assessed as being quite rare: the frequency was 1: 1000. Many short cut lengths of rich dark brown densely pigmented hair were also recovered from tapings and debris from items of Stephen Lawrence’s clothing, from some of which a mtDNA profile was also recovered that matched his mtDNA. 18. Evidence called at the trial by the prosecution included that of a forensic scientist, Roy Green. His evaluation of these findings was: “… based on the colour, type and physical properties of these fibres, and their relative rarity … when taken together this combination of fibres provides at least strong support for the assertion that they came from items of clothing relating to Stephen Lawrence rather than being chance matches.” 19. He dealt with the possible transfer mechanisms whereby fibres might have migrated from one piece of clothing to another. These were primary or direct contact between the sweatshirt and Stephen Lawrence’s clothing, secondary transfer (that is to say from the trousers and polo shirt to another garment, X, and from that garment to the sweatshirt) or tertiary transfer (from the trousers and shirt to garment X, from garment X to garment Y and then to the sweatshirt). He said: “… given the nature of the attack, with its limited duration, it is likely that there would not be particularly high numbers of fibres transferred to the clothing of (the attackers). The number of matching fibres present on the purple sweatshirt DC/7 is higher than one might expect if they were from secondary transfer and far more if due to tertiary transfer … There are essentially two ways in which the fibres originating from Lawrence’s trousers and polo shirt might come to be on the sweatshirt: either they were all that remained of fibres transferred to the sweatshirt following primary contact with the clothing of Lawrence, or alternatively, the matching fibres were not due to primary contact with the clothing of Lawrence and were deposited via an indirect route, which did not involve them coming into contact with Lawrence’s clothing. In my opinion the presence of these fibres provides at least moderate scientific support for the assertion that they arrived as a result of primary contact with the clothing of Lawrence rather than having been deposited via an indirect route.” 20. It was obvious that the new scientific evidence developed by LGC Forensics and, in particular, its cogency was at the heart of the prosecution case. As the judge made clear this evidence was only fit for use if it had not been contaminated over the years. The possibility of contamination was considered in depth by another Forensic Scientist, Rosalyn Hammond. She had looked at the history and continuity of the exhibits specifically with an eye to that risk. From LGC, she had all their records; from the period before LGC became involved, she had police reports and documents; and she had sat in court for that part of the case when evidence was given (and tested in cross examination) by police officers, civilian staff (including laboratory staff) and the Forensic Science Service. She had assessed whether contamination had or might have given rise to the new scientific evidence produced. She had looked at each item separately tracking back from the new findings through the history of the exhibit. She relied on evidence given by individuals as to what they did or did not do in their handling of the exhibits. 21. Ms Hammond gave evidence, making the assumption of the worst-case scenario in relation to matters that were not the subject of clear evidence. Her overall conclusion was that she accepted there had been a number of hypothetical opportunities for cross-contamination to have occurred but on detailed examination the risk of such cross-contamination was so remote that it could safely be excluded. 22. In the light of this forensic evidence, in early September 2010, the applicant was re-arrested. The detail of the new scientific findings on the clothing was put to him. He made no comment. 23. A second limb to the prosecution case concerned evidence obtained by the police following covert surveillance within a private flat in Footscray Road, Eltham occupied by the co-accused Gary Dobson and another man, Charles Martin. It became known as the Footscray evidence and took the form of a DVD which had been made in December 1994, 20 months after the murder and involved the applicant together with friends or associates of his in behaviour, according to the prosecution, which was racist and violent. The recording reveals that the applicant held racist views which extended to the approval of racially motivated serious violence, including the use of knives against black people, acquiescing in similarly reprehensible behaviour and conduct of others who used racist language. 24. The prosecution sought to introduce this evidence pursuant to the provisions of s. 101(1(d) of the Criminal Justice Act 2003 but the judge declined to rule on it until after the scientific evidence had been concluded. At that stage, the prosecution contended that the Footscray evidence was admissible because one of the principal matters in issue was whether the applicant was one of the attack group and, if so, whether he participated in the attack in the realisation that one of his number might resort to the infliction of serious injury with intent to cause really serious injury or to kill. Evidence tending to show that (i) the applicant harboured racist views against black people; (ii) these views extended to an approval of the infliction of racially motivated serious violence (including the use of knives); and (iii) he associated together as members of a group of like-minded young men would, according to the prosecution, have substantial probative value in terms of the jury’s determination of these principal important issues. 25. Having said that, the prosecution accepted that the evidence could be used only after the jury was, first, satisfied to the requisite standard that the blood, fibre and hair findings made in the main by LGC Forensics in 2007 and onwards were not the result of contamination after the suspects’ clothing was seized in May 1993, but rather arose out of the attack. If, however, the jury were sure that the allegation of contamination could and should be rejected, the bad character evidence could then be used by the jury when determining further issues they had to consider. Whilst this evidence alone could not identify participants in the attack, taken with other evidence, it was argued that was relevant and admissible as being capable of supporting the proposition that an individual defendant did participate; and was also relevant and admissible on a second important issue, namely whether a defendant participated in the attack with the requisite intention for murder. 26. The Judge ruled that some of the Footscray evidence was admissible. His central approach was to “focus on conduct where the one or other of the defendants was present, those being occasions where they either uttered words themselves or witnessed others speaking or acting in a particular way”. Evidence where a particular defendant was not present would not be admitted; however where present, and present without objection to the conduct taking place, it was capable of demonstrating acquiescence in such conduct and shared attitudes. This ruling forms the basis of the original ground of appeal. 27. The jury viewed the DVD. The Judge directed at that stage and, on many occasions during the course of his summing up, that the evidence had been admitted for a particular purpose only. It could not be used in considering the first key question: whether contamination of relevant exhibits in the time after seizure by the police had occurred. Only if the jury was sure that there had been no contamination could this evidence be used in going on to consider other issues in the case. 28. We turn to deal with the defence case. The applicant gave evidence in terms that he had nothing to do with the death of Stephen Lawrence and was not in Well Hall Road that night. He could not say where he was and could have been with family and friends. Of the clothing that had been seized from his bedroom, he did not recognise the jeans as his but could not be sure about the sweatshirt. His views, he said, were not prejudiced; his language evidenced in the Footscray DVD some 20 months later was immature talk and all part of growing up. 29. The applicant’s mother provided alibi evidence but, in the context of this application, the evidence given by the applicant’s brother, Clifford Norris is of particular importance. He said that the purple sweatshirt recovered from the applicant’s bedroom was his; he said it was hard to say if the jeans were. Some of his things must have been left in the en suite bedroom which he and his brother, Ben, had occupied before the applicant. He and the applicant had swapped bedrooms some time before the police search. He had left some of his clothes in the room being used by the applicant when the search took place. 30. When Clifford Norris was cross examined by Mr Mark Ellison Q.C. for the prosecution, it was suggested that one explanation for the scientific evidence and the presence of hair and fibres on the sweatshirt and jeans was that the applicant had worn some other garment other than the sweatshirt at the scene of the attack and then subsequently left that clothing next to the sweatshirt thereby creating the possibility of indirect contact. This suggestion or, as the oral argument developed, the defence reaction to it, forms the basis of a second ground of appeal, added when Stephen Batten Q.C., then acting for the applicant, advised that the applicant should feel free to question his judgment in not pursuing what he then contended was the unfairness of this ‘eleventh hour’ way of putting the prosecution case. The Footscray Evidence 31. Mr Tim Owen Q.C. (now acting for the applicant) argues that the admission of this evidence, in a case with such exceptional features and unique profile, risked causing substantial prejudice out of proportion with any probative value such that the judge should have excluded it either under s. 101(3) of the Criminal Justice Act 2003 or s. 78 of the Police and Criminal Evidence Act 1984. None of this material pre-dated the killing or was proximate in time to it: it represented no more than an invitation to form a negative assessment of the applicant’s views and conduct in deciding whether the applicant was present and guilty of participating in a violent unprovoked racial attack. The decision on which the judge relied ( R v Adenusi [2006] EWCA Crim 1059 ) as support for the proposition that “later conduct can demonstrate a relevant character trait or propensity” (the relevant conduct being an attempt to open a bank account producing false documentation five days after a similar incident then the subject of prosecution) did not bear the weight which was placed upon it. 32. Further, Mr Owen argues that the judge’s directions and ‘Route to Conviction’ did not adequately safeguard the applicant’s position and did not guarantee that the jury would not use the Footscray material more widely. He went on to submit that it potentially undermined the approach to the scientific issue that the jury had to decide in respect of possible transference. 33. Treacy J considered the strength of the scientific and continuity evidence to be sufficient to avoid “the caveat against the use of such evidence to bolster a weak case” and, having examined the DVD in detail, concluded that the evidence from the tapes was capable of demonstrating the expression of and acquiescence in reprehensible behaviour, amounting to a “character trait of violent racism”. As for the fact that these views were 20 months after the killing, he used Adenusi merely to demonstrate (if authority is needed for such a proposition) that later conduct can demonstrate a relevant character trait or propensity, having made clear: “The attitudes shown, in my judgment, are reasonably capable of being seen as ones which would have been present in 1993, rather than subsequently acquired. It is properly for the jury to say whether such a view is justified, just as in another instance it is for them to say whether an anecdote of Dobson’s is harmless or irrelevant or racist in nature.” 34. He considered the submissions on the issue of fairness with care and concluded that none led him to consider that the admission of the evidence would be unfair under s. 101(3) of the 2003 Act. Given the focus on the threshold issue of contamination, he concluded that a direction prior to the calling of this evidence and detailed written directions to the jury would combine to prevent unfairness. 35. In our judgment, the approach of the judge and the exercise of his judgement (as explained in R v Saul McMinn [2007] EWCA Crim 3024 per Hughes LJ at [5]) cannot be faulted. The Footscray recordings undeniably constituted evidence of “reprehensible behaviour” within sections 98 and 112(1) of the Criminal Justice Act 2003; and although it post-dated the fatal attack by some 20 months it was relevant to important matters in issue between the applicant and the prosecution identified by the judge in his ruling, namely whether or not the forensic traces had got onto clothes which on any showing was associated with the applicant, as a result of his participation in the attack; and, if he did participate, whether or not he did so with the foresight necessary to render him guilty of murder. Accordingly the evidence was admissible under section 101(1)(d) of the 2003 Act. 36. Furthermore, as the single judge observed, the judge was entitled to conclude that the evidence of bad character would not merely bolster an otherwise weak case. He was also entitled to conclude that the probative value of the evidence exceeded its potentially prejudicial effect, and therefore not to exclude it pursuant to section 101(3) of the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984. Obviously, however, it was ultimately for the jury to decide what weight to attach to the evidence, taking into account the arguments now advanced which doubtless mirrored those put before the jury. 37. As for the approach of the judge to the jury, again, he could not have done more. Before the evidence was introduced, he made it clear that it could not be used to identify those involved in the attack or in considering the first key question (whether contamination had occurred of relevant exhibits in the time after their seizure by the police); it could be used only if the jury was sure that there had been no contamination when considering other issues. 38. In the course of his summing up, the judge provided a written route to verdict requiring the jury (at paragraph 7 of the document) first to consider in relation to each item of clothing, whether they were sure that the fibres, hair (and, in the case of Dobson, blood) came from Stephen Lawrence and that contamination of the key exhibits after seizure could be excluded (noting “Footscray evidence NOT available”). Only if sure of these matters, in relation to each defendant, were they to consider whether they were sure that he was present and participating in an unlawful group attack on Stephen Lawrence which resulted in his death, marking this issue “Footscray evidence NOW available”: this was paragraph 8. 39. He also gave written directions on bad character which it is worth setting out in full. He read them to the jury and repeated the warning. The direction was: “You have seen and heard the Footscray tapes from 1994. They are capable of showing these Defendants acting in a way which the law describes as reprehensible behaviour. That is misconduct of a sort reflecting badly on the character of the person concerned. It is vitally important that you do not use this evidence in asking yourself the questions about contamination and whether the fibres are proved to have come from Stephen Lawrence’s clothing set out at paragraph 7 of the Route to Verdict. You must not use this evidence for that purpose. You may, however, use the Footscray material if it means what the prosecution says it does in answering the questions at paragraphs 8 onwards in the Route to Verdict document dealing with questions of whether the Defendants were present and participating in the attack and considering their intentions or foresight at the time. You will remember that the Route to Verdict document indicates to you the point at which you may use this evidence. You will have to assess that evidence for yourselves and decide what it shows you. Considering each Defendant separately, does it show violently racist characters who are not averse to the carrying or use of knives? Or is it no more than big talk by teenage boys: unpleasant, but not actually indicating how they would behave in the real world? Does the recording made in 1994 only reflect how they were at that time? Or is it safe to conclude that they must have been like that eighteen months or so earlier and have not suddenly changed in the intervening period? Does it throw light on how the individual Defendants might think and behave? Does it throw light on how the Defendants might behave when together and with a group of associates or friends? The Crown say you can take this evidence into account and that it provides evidence which makes it more likely that these Defendants were present and taking part in the attack upon Stephen Lawrence. Note that, it cannot, of itself (and must not be used to) identify who was involved in the attack. Otherwise others would be in the dock as well as these Defendants. The Crown also say it makes it more likely that, if they were taking part in the attack, they had the necessary state of mind to make them guilty of murder, namely an intention to cause death or really serious harm with a blade; or at least the realisation that one of the others might have a blade and might use it to kill or cause serious harm intending to do so. The defence argue that this evidence does not assist you and should be put to one side. If you decide that the evidence does show what the prosecution allege about these Defendants, then you may use it in the way set out above. If you do decide it is appropriate to use this evidence, it is very important that you recognise that it is only part of the evidence in the case as a whole and you must look at the full picture. You must not give the evidence undue weight, and in particular you must not assume that a Defendant is guilty or must have been untruthful in his evidence because of what the Footscray material shows. If you were to conclude that the material showed that a Defendant had a violent racist character, that by itself would not necessarily mean that this Defendant had committed the crime alleged. It would be merely a factor for your consideration. I repeat that before you could use this evidence you would firstly have to have taken the view of it which the prosecution submit you should. Then you must remember you cannot use it to answer question 7 in the Route to Verdict. It can only be used from question 8 onwards. And you should bear in mind that Mr Dobson has not been convicted of any offence of violence and that Mr Norris has not been convicted of causing injury to anyone, or using, or carrying a knife. In the end it is a matter for you to judge. But as I said to you before you heard this evidence, emotion has no part to play; and however shocking or unpleasant you may have found the Footscray tapes, you must be careful to reach verdicts on the basis of cool calm consideration.” 40. We have set out the direction in full because of its force and clarity. Further, at various points in this summing up, the judge reminded the jury of the limited use to which this material could be put and, in our judgment, it is simply inconceivable that the jury would not have recognised the importance of this thorough direction or that they would have failed to honour it at every stage of their deliberations. 41. While pursuing the argument advanced in writing, Mr Owen made it clear that this ground of appeal, on its own, would not have justified this renewed application. We take the view that there is, in fact, no arguable basis for criticising either the ruling or the direction; this ground of appeal fails. The Alleged Change of Approach 42. To analyse this ground of appeal, it is necessary to go back to the evidence available to the Crown at the start of the case and the way in which the matter was put. Mr Ellison was always aware that one of the critical issues in the case was the issue of contamination. Assuming that the jury was sure that there was no contamination (either in relation to the hair or the fibres), however, the conclusion of the forensic scientist, Roy Green, was that the combination of (seven) matching fibres recovered from the clothing seized from the applicant’s home provided “at least strong support” for the assertion that they came from items of clothing relating to Stephen Lawrence rather than being due to chance. As recounted above, however, his opinion as to primary as opposed to secondary transfer was less robust: it was that the presence of the fibres provided “at least moderate scientific support” for the assertion that they arrived as a result of primary contact with Stephen Lawrence’s clothing rather than having been deposited via an indirect route. Taken in isolation, that left secondary transfer as a reasonable possibility. 43. When interviewed about this scientific evidence, the applicant declined to answer questions and in his Defence Case Statement (provided voluntarily to assist with case management, the Criminal Procedure and Investigations Act 1996 not being in force in relation to this prosecution) there was no reference to the sweatshirt or jeans recovered from his home being owned or only worn by his brother Clifford. Not surprisingly, the Crown anticipated that secondary transfer was likely to feature in the case (and the dangers of such transfer were inherent in all the contamination issues) and Mr Ellison was not prepared to put the case on the basis that the applicant could only be guilty if he was wearing the jeans and sweatshirt. The written opening contended that: “in the context of the other evidence in the case, the only reasonable conclusion to be drawn from the seven matching fibres and hair being found on these items, seized from David Norris’ bedroom, was that he had participated in the attack”. 44. Assuming contamination could be excluded, the other evidence included the strength of the scientific case against Dobson, the surveillance evidence which demonstrated that the applicant and Dobson were close associates and (although not opened) the fact that it was the applicant (rather than any other member of his family) who was a violent racist. 45. After the prosecution opening, defence counsel made short addresses to the jury and Mr Batten stated, for the first time, that the jeans and sweatshirt did not belong to the applicant so that he could not have been wearing them in Well Hall Road when the attack occurred. He did not indicate at that stage to whom they did belong. As regards the scientific evidence he said, “We will seek to test the prosecution evidence about indirect transfer”. It was then unclear how, if the fibres were from Stephen Lawrence’s clothing (a proposition strongly supported), they could be transferred innocently if the applicant was going to say the clothes were not his and he had never worn them, yet he was the close associate of Dobson whose clothing also was found to have blood flake emanating from Stephen Lawrence. What is clear, therefore, is that Mr Batten was aware of the evidence available to him namely that the applicant’s brother (then 13 years old) would claim ownership. But, at that stage, Mr Ellison and the prosecution were not. 46. When Mr Green gave evidence, Mr Batten underlined that support for the proposition of primary transfer was moderate only. He later put this proposition to the scientist, receiving an affirmative answer: “Taking David Norris as an example, in deciding what could be said about primary, secondary, or whatever, what you had in mind as the sort of scenario, something you postulated to yourself as a possibility, is that he might know one of the real assailants, for example, and have gone round to that address. Is that the kind of scenario you had in mind?” 47. The issue of fibre and hair transfer was clearly important to both sides, not only on this topic but, more significantly, it was at the centre of the extremely detailed analysis of the possibilities of contamination (which, unless rebutted beyond reasonable doubt, would have undermined the entire prosecution). At the end of the scientist’s evidence, it was clear that secondary transfer was possible, but would require direct contact between an attacker’s clothes and the sweatshirt; tertiary transfer was implausible. As Mr Ellison remarked in argument, the evidence covering issues relating to the possibility of primary or secondary transfer and the risks of contamination was dealt with “ ad infinitum ”. Yet, knowing what Clifford Norris was going to say, Mr Batten did not explore with Mr Green the implausibility or otherwise of secondary transfer to his clothing or the strength that this might add to the argument about contamination. 48. When the applicant gave evidence, he did not suggest that his 13 year old brother was involved or that Dobson (or the others implicated in Stephen Lawrence’s murder) had visited his home between the date of the murder and the recovery of the clothing. He did not advance any explanation for the presence of fibres and a hair which the jury could conclude emanated from Stephen Lawrence. In answer to a question put by Mr Ellison, he said in terms: “I couldn’t possibly explain how anything remotely suggesting coming from Stephen Lawrence was anywhere near any item of clothes taken from my house.” 49. He said that the Acourts, Luke Knight and Gary Dobson knew his brother through him but that his brother never stayed at their house. As the applicant did not know who killed Stephen Lawrence, he said that he could not say if he had bumped into anyone (and so transferred fibres). That is as far as his evidence went. 50. We have summarised the evidence of Clifford Norris above. He agreed that he had probably exchanged rooms with the applicant two or so weeks before the murder with the result that his clothes would still have been in what had become the applicant’s bedroom on the night of the murder. In his skeleton argument for this appeal, without accepting this evidence, Mr Ellison contends that the questions were designed to show that in the context of there being no innocent explanation for how the hair and fibres got onto the clothing some seven miles from the murder scene, there was a plausible secondary transfer mechanism of direct contact between clothing the applicant had worn on that night and his brother’s clothes. 51. We turn now to the reaction of those representing the applicant. Clifford Norris was called on Thursday 15 December and was the penultimate witness in the case (the last being the applicant’s mother). The following day, before speeches, Mr Batten ‘flagged up’ the scenario put to Clifford Norris which he said had not been put to the applicant. Mr Ellison explained that his case had always been that there was no innocent plausible explanation for the hair and fibres on the sweatshirt and jeans. 52. Mr Batten prepared a supplementary advice on this issue; it has no evidential status but, for the sake of completeness, we record what he says. Reviewing the opening and his notes, he recognised that what the prosecution had said was not inconsistent with the case that had been advanced although he ‘wondered’ whether there was not an argument that the words had been very carefully chosen so as to allow the defence to mislead itself against a background where it was easy to assume that the prosecution would have been at pains to negate the possibility of indirect transfer via, among others, Dobson or the Acourts. He considered that the shift of emphasis was unfair and, although not challengeable in law, meant that he would have approached the cross examination of the experts (in particular Mr Green and Ms Hammond who dealt with contamination) differently, contending that the presence of the fibres was not explicable by what he called “the new scenario”. 53. He also considered whether to seek further advice from the expert instructed by the defence (who had not been called) with a view to asking for the recall of the two experts. He decided not to do so first because of the timing of the trial (the jury expecting that speeches would be concluded before Christmas). Perhaps more significantly, his judgment was that he perceived that the evidence of the ownership of the sweatshirt and jeans had been impressive and, in dealing with what he believed was ‘an obviously second string to the prosecution bow’ could suddenly take centre stage without his having had much time to think it through. In the event, he decided to restrict his complaint of unfairness to his closing speech. He said the decision was his responsibility and that “there was little in depth discussion with either junior counsel or the client”. 54. Mr Batten’s speech consisted of just such an attack, observing that the theory was not put to the applicant and complaining in the name of fairness. According to the prosecution note, he described it as lamentable that the prosecution had come up with a new theory at the last minute. This elicited an exchange between counsel in the absence of the jury to the effect that there had been no change of tack. 55. The judge dealt with this issue in his summing up. Again, it is worth quoting in full. He said: “This brought us to a complaint that the prosecution had only relied on secondary transfer in relation to [the sweatshirt and the jeans] at a late stage. The Crown’s principal case through Mr Green was of primary transfer involving the clothes themselves being at the scene worn by Norris. Now, complained Mr Batten, the Crown was relying on the possibility of secondary transfer as well, involving Norris having been at the scene but returning to his bedroom and transferring hair and fibres. Mr Batten said that this showed that the Prosecution’s original case was falling apart. Mr Batten pointed out that the Prosecution’s point had not been put in terms to Mr Green or David Norris and, at one point, suggested that this was so unfair that you should disregard this aspect of the case completely. Well, as to that, you are here to try the case according to the evidence you have heard in the courtroom. Although the particular scenario may not have been put to Mr Green for his comment, he gave general evidence about secondary transfer with which this scenario is consistent. So the prosecution are entitled to make an argument to you based on it and you are entitled to consider that argument. Although the prosecution, mainly through Mr Green, relied on primary transfer to Mr Norris, they have never put their case so strongly as to rule out the sort of secondary transfer scenario you are asked to consider. So I would suggest that you would need to be very cautious before acting on Mr Batten’s suggestion that you should simply say that this is unfair and, therefore, you should discard this aspect of the evidence without giving it further consideration. Mr Batten may well have a fair point in saying that he has been deprived of dealing with the matter more fully when questioning Mr Green and David Norris. If you think there is some disadvantage there, you can take account of that. Mr Batten may also legitimately argue that, if you think the Crown has changed emphasis, that could be an indication of lack of strength in their case as to primary transfer. All of those are matters for you to consider but you may think that the correct approach is to give the matter proper consideration, rather than rejecting it out of hand on the basis that, in some way, the Crown should not have relied on this argument and that it would be unfair of them to do so.” 56. It was in those circumstances that a ground of appeal was formulated in these terms: “Serious unfairness was caused by the Crown’s decision to alter the basis of its case as the defence case neared completion and after the applicant had given evidence. The defence were thereby deprived of the opportunity to deal adequately with the new line and were seriously prejudiced thereby.” 57. In his written skeleton argument, Mr Owen, taking up the point made by Mr Batten, submitted that the central requirement in the case was for the prosecution to prove that the applicant was one of the assailants who had killed Stephen Lawrence and that the evidence came solely from the material found on the clothing seized in a bedroom which he used. He submitted that the way in which the prosecution approached this topic was not appreciated by the defence until the conclusion of the evidence and that this lack of clarity led to a lack of clarity in the approach of the defence: put simply, the defence could not meet a challenge which it did not perceive. 58. In a further note, Mr Owen has explained that expert evidence has now been sought to address the late introduction by the prosecution of the possibility of secondary transfer. Funding has not been available; it is suggested that a report would cost £4,000 and take six weeks although it is worth noting that it is not intended to instruct the expert who was engaged at the trial but, rather, the expert for the co-defendant (who would not, presumably, have considered the evidence so far as it related to the applicant). Mr Owen submits that there is self-evidently an arguable unfairness at the trial based on Mr Batten’s concessions. Initially, he submitted that leave should be granted so that the matter can be investigated; latterly he revised that submission and argued that the application for leave should be adjourned and that funding should be made available for the new report to be prepared. 59. In oral argument, Mr Owen has sought to move the target. He now accepts that no criticism is to be made of Mr Ellison or the Crown and he no longer put the application on the basis of unfairness on the part of the Crown. His criticism is entirely directed at Mr Batten who, he argues, made a significant error in not dealing with the new suggestion by seeking an adjournment, potentially seeking to recall the prosecution experts and obtain his own expert evidence on the issue. Although taken in good faith, having weighed up the competing considerations with “little in depth discussion” junior counsel and his client (cf R v Clinton [1993] 1 WLR 1181 ), it was arguable that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe and, thus, the conviction unsafe. Whether that was so would depend on new expert evidence: it was therefore in the interests of justice both to adjourn the application and advance funding for that evidence to be obtained. 60. Mr Ellison responded to the initial application by contending that (as Mr Batten had explained) an expert had been instructed at the time of the trial and that expert must have provided evidence on the issue of primary or secondary transfer which, across the entire case (but particularly in relation to contamination), was both crucial and central. The permutations and likelihood of primary, secondary and tertiary transfer generally had been explored in great detail. 61. Mr Ellison continued that, rather than the Crown having ambushed the defence, by not revealing the case that the clothing was owned by the applicant’s brother in the defence case statement, by failing to explore the impact of the case which the defence knew they were to run with Mr Green and by leaving the development of the case to the very end of the trial, the defence had sought to ambush the Crown. Mr Batten was aware not only what Clifford Norris was going to say but also how the bedrooms had changed: the effect of his evidence, following cross examination, may only have been to accept his clothes could have been mixed with his brother’s. If Mr Batten had wished to explore the possibilities of secondary transfer (to exclude them), it was then open to him to do so. 62. For the avoidance of all doubt, we do not believe that the approach of the Crown was unfair or misleading in any way. The decisions that Mr Batten and his team had to make were always going to be there on the basis that, even if the jury accepted the evidence of Clifford Norris, there still had to be an explanation for presence of the hair and fibres. In that regard, the forensic examination of the risks of contamination was free-standing and it is unrealistic to expect that the jury would not have had to consider the possibility the applicant (who was the friend of Dobson against whom there was more compelling forensic evidence) was responsible in some way for the fibres that were found in his bedroom. 63. It is worth repeating the issues in the case. Stripping the forensic argument to its essentials, the first question in relation to the applicant (paragraph 7 in the Directions and the first paragraph in the Route to Verdict) concerned the findings of LGC Forensics, namely, hair which matched the mtDNA of Stephen Lawrence with a frequency of 1:1000 found on the jeans recovered from his bedroom and the seven fibres (six matching Stephen Lawrence’s green trousers and one matching his red polo shirt) found on the sweatshirt recovered from the applicant’s bedroom. The question was whether the jury was sure that these hair and fibres came from Stephen Lawrence and that contamination after the police seizure on 7 May 1993 could be excluded. That involved consideration of secondary transfer in the context of contamination. The judge’s consideration of this feature of the case exceeded 100 pages of transcript of his summing up. As Mr Ellison observed, there was no aspect of this possibility that was not explored in detail. 64. Once the jury were sure of those propositions, the next question was presence and participation in the attack and this required consideration of many other features of the case including the relationship between the applicant and Dobson (against whom, as we have said, there was stronger forensic evidence) and the Footscray evidence. Within this issue was the question how the hair and fibres came to be on the garments found in the applicant’s bedroom: it was nobody’s case (and entirely implausible) that the applicant’s 13 year old brother was involved. 65. As Mr Owen conceded during the course of debate before us, there was no alternative innocent explanation for the presence of the fibres and the hair, other than contamination during the period of storage after seizure: any innocent secondary transfer can only have occurred then. In any event, further scientific evidence on transfer could not assist with the issue of the mechanism of secondary transfer. Mr Owen submitted that such evidence might assist, not on that question, but in showing that secondary transfer (by contamination) was more rather than less likely to have occurred. However, that was very much an overt issue at trial, and was fully investigated. 66. The issue of the location of the hair and fibres (and the overall ramifications of the evidence that Clifford Norris could give) did not arise only after he gave evidence; they were there, throughout the case, and only the defence team knew what the evidence of Clifford was going to be. Assuming that Mr Batten had never contemplated the possibility that secondary transfer might be raised as a possibility (although he had to decide whether to advance an argument of innocent contamination if the jury were to conclude that the hair and fibres had come from Stephen Lawrence), we do not accept that he was without options. If he had wished to ask the judge for a day or so to consult his expert, the application could have been addressed on its merits. If the judge had believed that the prosecution had behaved unfairly (which is not how we read the transcript), he would doubtless have succeeded; he might have done so in any event. 67. Alternatively, he could decide to take the course that he did which was to use for forensic purposes what he sought to argue was a change of direction. That was an entirely reasonable strategy and, in the circumstances, given the premise on which the argument must be based namely that the jury were sure that the hair and fibres had emanated from Stephen Lawrence (based on the exhaustive analysis of the risks of contamination in the process), probably the most effective from his perspective. 68. The judge then dealt with the issue fully and, in our judgment, with conspicuous fairness. He put the competing arguments to the jury and left the issue to them. The applicant could not have asked for more. On analysis, therefore, there does not start to be an argument that new expert analysis would lead to any identifiable error or irregularity in the trial such as would render the process unfair or the conviction unsafe. It was for that reason that the application for an adjournment (and further funding) was refused. Conclusion 69. Having considered both arguments advanced in favour of leave to appeal and rejected each as unarguable, the application was refused.

2013_05_15-3175.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/712/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/712

ace8504a9062049b8521d4080ee53b82badbbdd5aa5e7b847f7cb116b292cd10

[2009] EWCA Crim 2293

EWCA_Crim_2293

crown_court

Neutral Citation Number: [2009] EWCA Crim 2293 Case No: 200805399 D3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WORCESTER HH. JUDGE HOOPER QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/11/2009 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE PENRY DAVEY and MRS JUSTICE SHARPE DBE - - - - - - - - - - - - - - - - - - - - - Between : CHRISTOPHER PAUL GILHAM Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 2293 Case No: 200805399 D3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WORCESTER HH. JUDGE HOOPER QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/11/2009 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE PENRY DAVEY and MRS JUSTICE SHARPE DBE - - - - - - - - - - - - - - - - - - - - - Between : CHRISTOPHER PAUL GILHAM Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Andrew Alty (instructed by Tuckers ) for the Appellant Anthony Vines (instructed by Jonathan Dollin, Legal Department, Worcestershire County Council ) for the Respondent Hearing dates : 23 October 2009 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE STANLEY BURNTON : Introduction 1. On 19 September 2008 at the Crown Court at Worcester before H.H. Judge Hooper QC and a jury the appellant was convicted of a number of offences arising from his commercial dealing in so-called modification computer chips (“modchips”), which were alleged by the prosecution to be devices, products or components “primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention” of effective technological measures within the meaning of section 296ZB of the Copyright, Designs and Patents Act 1988 as amended (“the CDPA ”). The offences of which he was convicted included importing, advertising and offering for sale, selling and possessing such devices in the course of a business. In addition, he was convicted of money-laundering offences relating to the proceeds of his sales of such devices. 2. The appellant appealed against his conviction with the certificate of the trial judge. We heard his appeal on 23 October 2009. 3. For the purposes of the appeal, the parties’ expert witnesses agreed certain facts in writing. We have incorporated some of those facts in this judgment. 4. At the conclusion of counsel’s submissions we stated that the appeal would be dismissed for reasons that we should give subsequently in writing. 5. These are our reasons for dismissing his appeal. The facts 6. The modchips to which the charges under the CDPA related were for use in conjunction with Microsoft Xbox, Nintendo GameCube and Sony Playstation2 games consoles. Between October 2003 and January 2006 the appellant operated a business selling components and devices for such games consoles from his flat in Worcester, primarily through the website www.baldbouncer.co.uk. 7. Microsoft, Nintendo and Sony market games in DVDs and CD-Roms that can be played on their respective consoles. Each of them uses protective technological measures to prevent counterfeit or “pirate” copies of games from being played on their consoles. These measures were described by Jacob LJ in Higgs [2008] EWCA Crim 1324 as follows: 4. The games consoles contain embedded codes and normally will only allow a game to be played if the CD-ROM contains a corresponding code. The codes on the CD-ROM are not copiable, at least for practical purposes. A principal effect of these measures is to prevent the playing of “pirate” games, that is to say games which have been copied without the permission of the owner or owners of any copyright material contained in the games, including copyright in images, sounds and so on. 8. The modchips sold by the appellant were the Xecuter for use with the Microsoft Xbox, the ViperGC and Qoob chips for use with the Nintendo Gamecube and the Matrix Infinity for use with the Sony Playstation. The appellant sold the modchips either on their own, or already inserted into games consoles together with the paraphernalia needed to fit them. In some cases the purchaser of the modchip would have to download software from the Internet and install it in the modchip before it could be used. Once correctly installed, the modchips enable counterfeit games to be played on the consoles. It is right to point out that the modchips could be used for other purposes, for example to enable the user of the console to play a game he or she had created, but as will be seen that possibility is irrelevant to the issues on this appeal. 9. DVDs and CD-Roms on which games are sold for use with these game consoles contain substantial amounts of data in digital form. By way of example, the typical Xbox game disk incorporates some 3 gigabytes of data. For the purposes of this judgment, we can confine ourselves to DVDs: CD-Roms typically contain substantially less data, but raise no different issues. 10. During the playing of a game, data is taken from the disk into the random access memory or RAM of the console. As the game is played, the data in RAM is over-written by different data from the disk. Precisely what data is taken from the disk into RAM will vary with the way the game is played, and cannot be predicted. What is clear is that at any one time only a very small percentage (probably no more than 3 per cent, and possibly significantly less) of the data on the disk is present in RAM. 11. The games consoles are attached to television screens or computer monitors on which the game is displayed. In addition to the visual display, there will be sounds and may be music. The screen will display images of scenes, character and objects that have been created by those responsible for the composition of the game. The digital instructions for the display of those scenes, characters and objects and for the production of the sounds and music will be on the DVD, and as mentioned above will be taken into RAM temporarily, to be over-written by other data on the DVD as the game moves on. The statutory provisions 12. The following provisions of the CDPA are relevant:: 1. Copyright and copyright works (1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work— (a) original literary, dramatic, musical or artistic works, (b) sound recordings, films [or broadcasts], and (c) the typographical arrangement of published editions. (2) In this Part “copyright work” means a work of any of those descriptions in which copyright subsists. (3) Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met (see section 153 and the provisions referred to there). 16 The acts restricted by copyright in a work (1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom-- (a) to copy the work (see section 17); (b) to issue copies of the work to the public (see section 18); …. and those acts are referred to in this Part as the "acts restricted by the copyright". (2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright. (3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it-- (a) in relation to the work as a whole or any substantial part of it, and (b) either directly or indirectly; and it is immaterial whether any intervening acts themselves infringe copyright. (4) … 17 Infringement of copyright by copying (1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows. (2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means. (3) … (4) Copying in relation to a film [or broadcast] includes making a photograph of the whole or any substantial part of any image forming part of the film [or broadcast]. (5) … (6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work. 296ZB Devices and services designed to circumvent technological measures (1) A person commits an offence if he-- (a) manufactures for sale or hire, or (b) imports otherwise than for his private and domestic use, or (c) in the course of a business-- (i) sells or lets for hire, or (ii) offers or exposes for sale or hire, or (iii) advertises for sale or hire, or (iv) possesses, or (v) distributes, or (d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner, any device, product or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures. (2) A person commits an offence if he provides, promotes, advertises or markets-- (a) in the course of a business, or (b) otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner, a service the purpose of which is to enable or facilitate the circumvention of effective technological measures. (3) …. (4) A person guilty of an offence under subsection (1) or (2) is liable-- (a) on summary conviction, to imprisonment for a term not exceeding three months, or to a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding two years, or both. (5) It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for believing, that-- (a) the device, product or component; or (b) the service, enabled or facilitated the circumvention of effective technological measures. 296ZF Interpretation of sections 296ZA to 296ZE (1) In sections 296ZA to 296ZE, "technological measures" are any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program. (2) Such measures are "effective" if the use of the work is controlled by the copyright owner through-- (a) an access control or protection process such as encryption, scrambling or other transformation of the work, or (b) a copy control mechanism, which achieves the intended protection. (3) In this section, the reference to-- (a) protection of a work is to the prevention or restriction of acts that are not authorised by the copyright owner of that work and are restricted by copyright; and (b) use of a work does not extend to any use of the work that is outside the scope of the acts restricted by copyright. (4) Expressions used in sections 296ZA to 296ZE which are defined for the purposes of Part 1 of this Act (copyright) have the same meaning as in that Part. 13. The present section 296 and sections 296ZA to 296ZE were inserted into the CDPA by the Copyright and Related Rights Regulations 2003 in order to implement Directive 2001/29/EC “on the harmonisation of certain aspects of copyright and related rights in the information society”. The issues at trial 14. In order to establish that an offence under, by way of example, section 296ZB (c)(i) of the CDPA has been committed in relation to games such as those concerned in the present appeal, the prosecution must prove: (1) That the game is or includes copyright works within the meaning of section 1. (2) That the playing of a counterfeit DVD on a game console involves the copying of a copyright work. (3) That such copying is of the whole or a substantial part of a copyright work: section 16(3)(a). (4) That the game consoles and/or genuine DVDs (i.e. copies of the copyright work or works created by or with the licence of the owner of the copyright) include effective technological measures within the meaning of section 296ZF designed to protect those copyright works. (5) That in the course of a business the defendant sold or let for hire a device, product or component which was primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of those technological measures. It is to be noted that this issue does not depend on the intention of a defendant who is not responsible for the design, production or adaptation of the device, product or component: his intention is irrelevant. 15. At the trial of the appellant, it was proved that computer games are and include copyright works: indeed, the contrary is indisputable. The issues for the jury were those set out in sub-paragraphs (2) to (5) above. The trial followed shortly after the judgment of this Court, differently constituted, in Higgs . In that case, like the present, the appellant had been convicted of offences contrary to section 296ZB . In that case, unlike the present, the prosecution did not seek to prove that during the playing of a game, data was copied from a DVD or CD-Rom onto the RAM of a games console, and the prosecution failed. However, Jacob LJ made it clear that if that had been so proved, the appellant’s convictions would have been upheld. He said: 8. The prosecution contended that Mr Higgs was providing devices which enabled the circumvention of ETMs. But it is very important to understand the factual basis of the contention. It was not that the use of a modified console to play a game from an infringing CD-ROM itself involved any infringement of copyright. No attempt was made to prove that when such a CD-ROM is placed in a console, the console reads into its memory (particularly its random access memory, its “RAM”) the program and copyright material included with it such as images and sound. 9. If such had been contended and proved (as it would seem very probable it could have been), it is difficult to see what defence there might have been. After all s.17 of the Act provides: … It follows that the making of transient copies of copyright material into a RAM is a restricted act. In this context taking even a single frame of a cinematograph film is also probably an infringement (see Spelling Goldberg v BPC Publishing [1981] RPC 225 ). Putting it another way, the playing of a pirate game on a console would itself be an infringement. And even a narrow interpretation of ETM would seemingly catch that. Mr Vaitilingam, Counsel for Mr Higgs, whilst not positively so accepting, acknowledged that he did not see how it could be otherwise. 10. So much was indeed held to be so in the civil case of Sony v Ball [2004] EWHC 1738, [2005] FSR 9 . Laddie J held, on an application for summary judgment, on facts near identical to those in this case, that there was infringement of the civil provisions corresponding to those in question here. The only factual difference is that, unlike this case, before Laddie J it was asserted that transient copying into the console took place – and the defendant so admitted. 16. It is not surprising that the prosecution in the present case sought to make good the omission of the prosecution in Higgs. Particular attention was focused on the issue at paragraph (3) above. It was proved that during the playing of a game from a counterfeit DVD, data is copied into the RAM of the games console. 17. On behalf of the present appellant, it was submitted that although there was such copying, it did not represent at any one time the whole or a substantial part of the games data on the DVD, and it followed that playing a counterfeit game does not involve copying that infringes the rights of the copyright owner. In Higgs , this issue had not fallen for decision, and Jacob LJ’s dicta were not binding. The judge directed the jury that in this context “substantial has its plain English meaning of ‘more than minimal’”. 18. As already mentioned, the appellant was convicted of the offences under section 296ZB . It follows that the jury were satisfied that the disputed requirements of conviction set out under paragraph 14 above had been proved. The issues on this appeal 19. Before us, the appellant abandoned his grounds of appeal relating to requirements (4) and (5). Thus the only issue on this appeal was whether the playing of a counterfeit DVD involves substantial copying of a copyright work. In that connection, it was submitted that the judge had wrongly directed the jury as to the meaning of “substantial” in the present context. 20. “Substantial” is a difficult word. It may indeed mean “not insubstantial”. But another dictionary meaning is “of ample or considerable amount, quantity, or dimensions”. Laddie, Prescott and Vitoria, The Modern Law of Copyright , third edition, state: 3.131 …. copyright in a work is infringed by taking a substantial part of it; but what is the meaning of "substantial". It is a question of fact and degree, a matter for the jury in those days when copyright actions were tried by juries. Sheer arithmetical quantity alone is not the first; for a short extract may be a vital part of a work, and "the question whether he has copied a substantial part depends much more on the quality them on the quantity of what he has taken". … The true principle, at any rate in the compilation cases, is that "the defendant is not at liberty to use or to avail himself of the Labour which the [claimant] has been at for the purpose of producing his work; that is, in fact, merely to take away the result of another man's labour or, in other words, this property". … and there is high authority in favour of the "rough practical test that what is worth copying is prima facie worth protection"; but the words "rough" and "prima facie" ought to be emphasised, for otherwise the proposition obviously proves too much. In particular, there are instances where appropriation of a minor part would be regarded as fair and legitimate use. 21. The test is helpfully summarised in Copinger and Skone James on Copyright , fifteenth edition, at paragraphs 7-25 and 7-27. For present purposes, it is sufficient to cite part of paragraph 7-27: … the application of the substantial part test varies with the type of work, whether literary, dramatic, musical, artistic and so on. … some general propositions can be stated: (a) … the overriding question is whether, in creating the defendant's work, substantial use has been made of the skill and labour which went into the creation of the claimant's work and thus those features which made it an original work. (b) the quality or importance of what has been taken is much more important than the quantity. The issue last depends therefore not just on the physical amount taken but on its substantial significance or importance to the copyright work, so that the quality, or importance, of the part is frequently more significant than the proportion which the borrowed part bears to the whole. 22. It can be seen that the application of the substantial part test is more complex than was indicated by the judge’s direction. 23. Both of the above textbooks, and the judicial authorities, recognise the problem that arises when a defendant regularly takes a small amount of material from the claimant’s work: the “little and often” case. It was this problem that was raised by the appellant in the present case. He relies on the decision of Kitchin J in Football Association Premier League Ltd and others v QC Leisure and others [2008] EWHC 1411 Ch. That case concerned the use of foreign decoder cards in the UK to access foreign transmissions of live Premier League football matches. The claimants complained that the dealing in and use of such cards in the UK involved an infringement of their rights under s.298 of the CDPA and of the copyrights in various artistic and musical works, films and sound recordings embodied in the Premier League match coverage. The facts bore certain similarities to the present. The decoder that received the broadcast signal stored fragments of the various film works, the musical work and the sound recording that were broadcast sequentially, and those fragments were replaced as the broadcast continued. Kitchin J held that when considering copying of a film, the few frames that were stored in the decoder at any one time did not constitute a substantial part of a film, and that the fragments of a film that were copied could not be considered on a cumulative basis. On the face of it, his decision is inconsistent with the approach of Jacob LJ in Higgs. It is also inconsistent with the decision of the late and much lamented Laddie J in Sony v Ball , to which Jacob LJ referred. That case too was concerned with Sony games consoles, and acts alleged to infringe the copyright in their games. Laddie J, who of course had very considerable experience in this field, said: 13. Sony alleges that use of either of these, enabled by the Messiah2 chip, inevitably results in infringement of Sony copyright and the creation of infringing copies. When the game is inserted into the console, the program and other creative works (or substantial parts of them) are read from the CD or DVD and copied into a Random Access Memory chip (“RAM”) in the console. This is an act of reproduction. Mr Kime does not dispute that. Furthermore the RAM containing the reproduced digital data from the CD or DVD is an infringing copy. This is disputed by Mr Kime. He points to the fact that the copy of the copyright works in RAM only exist for a small fraction of a second. He says that that is far too ephemeral to turn the RAM into an infringing copy. He says that a copy which lasts for such a short period is not an article. It is a temporary creation produced during a dynamic act of copying. He draws my attention to the Obscene Publications Act 1959 , the Factories Act 1937 , the Supply Powers Act 1975 , the Aviation Security Act 1982 , the Sale of Food and Drugs Act 1875 and the Prison Act 1865 to illustrate different ways in which the word “article” has been used in legislation. He argues that the legislature only uses the word “article” in relation to what he calls “tangible substances”. He says that a RAM chip containing a copy of the whole or a substantial part of Sony’s copyright works is not such a tangible substance. 14. There can be no doubt that silicon chips are articles. Mr Kime does not suggest otherwise. Further he accepts that were the Sony material to be loaded into a Read Only Memory (“ROM”), that is to say a silicon chip designed to retain the loaded material substantially permanently, the chip so loaded would constitute an article. Again, if the copy were unlicensed it would be an infringing copy within the definition in the Act. He also accepts that if the same material were loaded into an Erasable Programmable Read Only Memory (“EPROM”), a type of silicon chip which can record digital data and will retain it until it is instructed to delete or override the data, it would constitute an article, even if it were decided to erase the material within a second or two. He says that the EPROM containing the copy would be a “tangible substance”. The only exclusion covers the case when the digital material is copied into a RAM chip as happens in the PS2 console. Although the RAM chip itself is an article, he argues that the RAM containing the copy of Sony’s digital data is too short lived to be regarded as tangible. Mr Kime is not able to indicate how short the life of the copy in the chip has to be before the chip containing the copy ceases to be an article. He argues that, wherever the border lies, in the case of the PS2 console, the life is too short to count. 15. I do not accept this argument. The silicon RAM chip is an article. When it contains the copy data, it is also an article. The fact that it did not contain the copy before and will not contain the copy later does not alter its physical characteristics while it does contain a copy. It is always an article but it is only an infringing article for a short time. There is nothing in the legislation which suggests that an object containing a copy of a copyright work, even if only ephemerally, is for that reason to be treated as not an article. On the contrary, the definition in s 27 points to the instant of making of the copy as crucial to the determination of whether or not it is an infringing article. An article becomes an infringing article because of the manner in which it is made. Whether it is an infringing article within the meaning of the legislation must be determined by reference to that moment. It matters not whether it is remains in that state, since retention as a copy is no part of the definition in the section. 24. In the present case, if the only copyright work that is copied is the game as a whole, the “little and often” would be material, and the correctness of Laddie J’s judgment and of Jacob LJ’s dicta would have to be decided. But the game as a whole is not the sole subject of copyright. The various drawings that result in the images shown on the television screen or monitor are themselves artistic works protected by copyright. The images shown on the screen are copies, and substantial copies, of those works. If the game is the well-known Tomb Raider , for example, the screen displays Lara Croft, a recognisable character who has been created by the labour and skill of the original artist. It matters not that what is seen on screen is not precisely the drawing, because the software may cause her to be seen performing actions that are not an exact copy of any single drawing. It is clear that what is on screen is a substantial copy of an original: see King Features Syndicate Inc v O and M Kleeman Ltd [1941] 1 AC 417 . The respondents in that case had made brooches based on the cartoon character Popeye the Sailor. Lord Russell of Killowen said, at 432: For my purpose it is sufficient to refer to sketch No. 3, of which I think a substantial part is reproduced in the brooches. The question of colour is immaterial, but I find reproduced in the figure of which the brooches consist the following salient features of Popeye in sketch No. 3, namely, the sailor's cap, the nose, the chin, the mouth, the swollen forearms, the baggy trousers, and the enlarged feet. This, I consider, constitutes a reproduction of a substantial part of sketch No. 3. Further, I am of opinion that a comparison of the brooch with the sketch in question raises a strong presumption (not displaced by any evidence) that the figure of the brooch was copied directly or indirectly from that sketch. … 25. It follows that even if the contents of the RAM of a game console at any one time is not a substantial copy, the image displayed on screen is such. As we said in the course of argument, it may help to consider what is shown on screen if the “pause” button on a game console is pressed. There is then displayed a still image, a copy of an artistic work, generated by the digital data in RAM. The fact that players do not normally pause the game is immaterial, since it is sufficient that a transient copy is made. 26. This conclusion is supported by paragraphs 232 and 235 of the judgment of Kitchin J in the Football Association Premier League case. He said: 232. I have to say that I entertain some doubt as to whether those who framed the CDPA ever contemplated that displaying an image on a television screen amounts to copying. However, s.17 must be construed in the light of the Directive and, despite my reservations, I have reached the conclusion that it is indeed this broad. The words of Article 2 and the section are clear. The reproduction right includes the making of temporary copies by electronic means, subject to the defence to which I refer below and the copies may be transient. I am confirmed in this view by the decision of Aldous J in Bookmakers Afternoon Greyhound Services v Wilf Gilbert (Staffordshire) Ltd [1994] FSR 723 , a decision under the Copyright Act 1956 which, like the CDPA , restricted “reproducing the work in any material form”. Aldous J held that the defendants infringed the copyright subsisting in race cards by showing them on television monitors in their shops. This, he found, involved reproducing them in a material form. In my judgment the position under the CDPA is no different. … 234. I conclude that copies of a substantial part of the films, the musical work and the sound recording are not made in the decoder or on the television screen. This conclusion is reinforced in relation to the Opening Sequence, Previous Highlights, Match Highlights and Next Match Preview Films which are, as I have mentioned, comprised to varying degrees of other film. In so far as they rely upon any element of collocation for originality it is even harder to see how a part lasting no more than a fraction of a second could be said to be substantial. 235. But the position in relation to the artistic works (the various graphics, devices and logos) is different. I accept that these are reproduced in full within one frame of the broadcast signal in the decoder and as seen on the television. 27. Mr Alty valiantly submitted that the display on a screen cannot be a substantial copy of a copyright work because it is seen for only an instant. But, as we have already stated, this is irrelevant. Section 17(6) expressly provides that a transient copy is a copy. 28. It follows that the appellant was rightly convicted of the offences charged under the CDPA , and of the money-laundering offences relating to the proceeds of his sales. We reach this conclusion with satisfaction. The recitals to Directive 2001/29/EC emphasise the importance of protecting copyright and related rights in multimedia products such as computer games, and if devices such as modchips could be sold with impunity, the UK would not be conferring the protection of those rights required by the Directive. Secondly, it seems to us to accord with common sense that a person who plays a counterfeit DVD on his games console, and sees and hears the visions and sounds that are the subject of copyright, does indeed make a copy of at least a substantial part of the game, even though at any one time there is in the RAM and on the screen and audible only a very small part of that work. In other words, had it been necessary to decide this appeal on the “little and often” point, we should have followed the judgment of Jacob LJ in Higgs . In the event, however, we have not had to base our judgment on that point. 29. We add two matters. First, given that the focus at trial was on the “little and often” point, we considered whether fairness required the appeal to be allowed, the convictions quashed and a re-trial ordered which would focus on the basis on which we have decided this appeal. However, Mr Alty was unable to suggest that he would have adduced or could now adduce any evidence to meet the points made in this judgment. In these circumstances, fairness does not require a new trial, which would be costly and could have only one outcome. 30. Lastly, we repeat with emphasis what Jacob LJ said in Higgs about the trial of cases involving recondite issues of copyright law before a jury. Cases that, for example, involve determination of difficult questions whether a copy is of a substantial part of a copyright work, can and should be tried in the Chancery Division before specialist judges. They can be so tried much more efficiently in terms of cost and time than before a jury, and questions of law can if necessary be determined on appeal on the basis of clear findings of fact. In appropriate cases, the Court will grant injunctive relief, and a breach of an injunction will lead to punishment for contempt of court. If the facts proven against a defendant show that he has substantially profited from criminal conduct, proceedings for the civil recovery of the proceeds of his crimes may be brought under Part 5 of the Proceeds of Crime Act 2002 .

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2293/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2293

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[2006] EWCA Crim 419

EWCA_Crim_419

supreme_court

Case No: 2004/06413/B2 Neutral Citation Number: [2006] EWCA Crim 419 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH (JUDGE LOWEN) Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday, 7 th March 2006 Before : LORD JUSTICE SCOTT BAKER MR JUSTICE OWEN and THE COMMON SERJEANT - - - - - - - - - - - - - - - - - - - - - Between : Gabriel Solomons Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - -

Case No: 2004/06413/B2 Neutral Citation Number: [2006] EWCA Crim 419 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH (JUDGE LOWEN) Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday, 7 th March 2006 Before : LORD JUSTICE SCOTT BAKER MR JUSTICE OWEN and THE COMMON SERJEANT - - - - - - - - - - - - - - - - - - - - - Between : Gabriel Solomons Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal WordWave Limited 190 Fleet Street, London EC4A 2AG Tel No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Michael Mansfield Q.C and Mr Joel Bennathan (instructed by Saunders, Solicitors ) for the Appellant Ms Alison Ginn and Mr Thomas Allen (instructed by Solicitors, HM Revenue and Customs ) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Scott Baker: 1. On 12 December 2003, after a lengthy trial in the Crown Court at Isleworth, Gabriel Solomons, now aged 66, was convicted of 6 offences of importing Class A drugs namely cocaine. He was sentenced by Judge Lowen to 24 years imprisonment on count 6, with concurrent 10 year sentences on each of the other 5 counts. He appeals against conviction with the leave of the single judge who granted an extension of time. Facts 2. On 5 September 2005 the appellant arrived at Heathrow Airport on a flight from Lagos, Nigeria. He was stopped by custom officers, asked if he was aware of all the contents of his luggage to which he replied in the affirmative and his luggage was then searched. In it were found 15 dried fish containing bags of powder packed so as to form the shape of the body of a fish with a fish head protruding at one end and a fish tail at the other, thus giving at first sight the appearance of commonly exported fish. 3. The total quantity of cocaine packed in this way was 46.9 kilos, which equates to 37.7 kilos at 100% purity. It was, by any account, a massive quantity with a street value of £3.1m. In all there were 471 packages of which two, which were distinguishable from the rest, were crack cocaine. When the appellant was interviewed he made no comment. 4. When searched the appellant was found to have £8,372 cash in his possession and, more significantly, a diary which revealed what appeared to be 5 previous importations of drugs from Lagos to the United Kingdom. 5. His mode of operation was to travel to Nigeria and return with cocaine in his heavy luggage. He would take the drugs to his home in Oxfordshire before transporting them to Manchester where they were sold. In between his trips to Nigeria he would go to Manchester to collect the proceeds of sale. His defence was that he knew nothing about the drugs in his luggage. He did not deal in drugs and he was operating a legitimate business. 6. At the trial, he adduced evidence from Martin Ike, an employee, who had had control of his luggage up to and including checking in at Lagos airport. He had confessed to placing the packages in the appellant’s luggage and was serving a 5 year sentence in Nigeria for conspiring with one Mustapha to export hard drugs to the United Kingdom. It was Ike’s evidence that the appellant knew nothing about the drugs. The jury did not, however, believe this. 7. We have now heard fresh evidence from Mustapha by video link from Nigeria, its purport being that he commissioned Ike to put the cocaine into the appellant’s luggage. The appellant, he contended, knew nothing of it and had the customs been successfully negotiated at Heathrow his, Mustapha’s, agents would have robbed the appellant of his luggage at gunpoint without any knowledge on his part that it contained this vast quantity of cocaine. This was a procedure that Mustapha had followed successfully on 4 previous occasions with other unsuspecting passengers, albeit without the assistance of Ike. 8. There was a very strong case at trial against the appellant. Some of the packages were in “Lagos Sheraton Hotel” carrier bags, the hotel at which he had been staying in Lagos, and one of the packages contained pieces of paper from a Summerfield supermarket leaflet. 9. The appellant’s house, Pinto House, Aston, Oxfordshire was searched on the morning of his arrest. A suitcase on the floor of his wife’s bedroom contained 9 carrier bags each tied at the top and full of cash. There was also in the suitcase a brown envelope with foreign currency and in the same room a holdall with more cash and papers in it. 10. In another bedroom there was a trunk with three carrier bags full of cash, more loose cash and a brown case containing yet more cash. In the wardrobe there was a Luigi bag. 11. The total cash found at his house amounted to £388,532 plus U.S $12,000 and 3,630 euros. The Luigi bag contained a set of electronic scales contaminated with crack cocaine and bearing the appellant’s fingerprints. Also, it contained razor blades and other drug paraphernalia. There were three passports at the house, two in the name of Dr Gabriel Solomon Amadi, date of birth 25/6/39, and the third in the name of Dr Gabriel Iwecha Solomons date of birth 26/6/43. The passport in his possession when he was arrested made a fourth. 12. Investigation into his travel revealed that his 6 trips to and from Nigeria in 2002 were all made first class and paid for in cash. The weight of his luggage varied between 70kg and 100kg. On the date of his arrest his luggage weighed 100kg (the allowance for first class passengers being 2 x 32 kg). 13. Three motor vehicles were registered in his name, a Ford Focus and two Mercedes, one of which was found at his chauffeur’s address. All were forensically examined and two were found to contain traces of cocaine. Some of the cash at Pinto House was contaminated with higher then normal levels of heroin, suggesting it had come from a source closely connected with heroin such as a drug dealer. 14. The appellant’s previous trips to Lagos, reflecting the first 5 counts on the indictment, were: • out 17 Jan return 1 Feb Gatwick. • out 21 Feb return 4 March Gatwick. • out 2 April return 19 April London Heathrow. • out 8 May return 19 May London Heathrow. • out 11 July return 21 July London Heathrow. And then out 15 August back 5 September. He used three of his four passports in rotation for these six trips in 2002. 15. The Crown relied heavily on entries in his diary for example 18 April 2002, the date on which he left Nigeria for the United Kingdom (count 3): “…..proceeded to the airport to check in as usual. But to my horror and great shock a lot of changes have been put in place regarding what can be exported and what cannot be. All the materials I usually used for export of goods and for packing them are now banned. Even the procedure completely changed. Was now asked to take everything home and repackage them…..even the officials who used to be helpful in the past were not prepared to risk their jobs…..After much horse trading the official agreed to help but warned that I had a lot to combat with at London Heathrow….The flight finally took off at just before midnight. Spent the night in prayers and meditation all the time calling on the supreme ruler of all things to come to our help at Heathrow Airport on our arrival; 19 April….Great apprehension as we waited for over one and half hours for our luggage to be released. Officials all over the place. Called Chi (Mrs Solomons)…….both of us united in prayers to the father of all mercies, who had led us over the years, and who knows the great number of enemies who are waiting to clap their hands in glee over us in the event of a mishap…….In the end our prayers were not in vain for my luggage finally emerged on the conveyer belt – first two came and then later the last appeared. The God of miracle had indeed heard our prayers; 19 April (later at home); rested for a while before commencing to prepare goods for distribution and sale. Was late in the night before I completed the process. 20 April; left…..for Manchester to deliver some goods and collect funds from our outlet there.” In April 2002 a new procedure was introduced at Lagos Airport involving extra checks on foodstuffs such as dried fish being imported into the United Kingdom. This involved passengers’ baggage being taken to a search table and examined by staff in the presence of passengers. Bribes to officials could, however, avoid this procedure. The appellant’s evidence was that this entry recorded his concern about taking foodstuffs and fish abroad and that the way he had packaged such goods had now been banned. 16. A second search of the appellant’s house took place on 12 September – a week after his arrest. Fish heads were found in the freezers wrapped in newspaper which had originated from Nigeria – similar to those found in his luggage on arrest. There was no forensic evidence with regard to the fish heads or the wrappings found on this occasion. 17. Between 1 January 2002 and the date of the appellant’s arrest over £430,000 had been deposited into his bank account and £81,300 into that of his wife. The previous year just under, £12,000 had been paid for covert security equipment to be installed at his house. He gave specific instructions to the security company installing it that his domestic staff were not to know of its existence. 18. Mrs Solomons was shown to have business interests in a taxi firm and a shop but, neither was in Manchester and neither generated substantial income. There was no record of the appellant having any business interests in Manchester. 19. The appellant’s case was that he was the victim of a conspiracy between Ike and Mustapha to put the drugs in his luggage without any knowledge on his part. When his diary referred to ‘goods’ that was a reference to coral beads. Deposits in his United Kingdom bank accounts came from his business interests in Nigeria and most of the cash found at his home belonged to others. He was a wealthy man of intellectual and religious achievements and would simply not need to engage in a systematic course of conduct of the type alleged. As to his passports, he had changed his name by deed poll following an acrimonious separation from his former wife. He used 4 passports because his application for British citizenship had been refused on the ground that he spent substantial periods of time in Nigeria. He thus wanted to disguise the frequency of his trips there. 20. In November 2001 he sold a company called Novala for £1.25m. Between £200,000 and £300,000 of the proceeds were brought to the United Kingdom. In December 1999 he sold another company called Alisamou for £2.2m, again part of the proceeds were brought to the United Kingdom. He was in business in Nigeria trading in cars. He ran a transport business which owned expensive vehicles. He owned a boutique; he traded in fabrics; he shipped mobile phones from the United Kingdom to Nigeria and he sold leatherite. By making payments to influential people he obtained contracts for oil exploration, road work projects and mining enterprises which were then sold at a profit which was brought to and banked in the United Kingdom. His audited accounts for the year 2001 showed business profits amounting to £1.8m. He produced audited accounts for the years 2000, 2001, and 2002, (albeit challenged by the Crown) to support his assertion that he had a successful business in Nigeria. 21. The money in his possession on arrest had been obtained from money changers in Nigeria and some of the money found at Pinto House, which had also come from Nigeria, did not belong to him. £75,000 and £63,000 respectively had been paid to him in advance by purchasers of mobile phones which were yet to be delivered/purchased. £150,000 had been paid to him as an advance deposit for a number of Mercedes motor vehicles. £20,000 to £30,000 belonged to a Nigerian bead customer from Manchester and £15,000 had been given to him to purchase jewellery on behalf of someone else. The Crown disputed the suggestion that the money found at Pinto House had come from Nigeria because if it had, like that in his possession on arrest, it would have been relatively clean of heroin. 22. He had gone into the business of coral beads when his five year old son visited him in his hotel in Manchester and he got talking to a Nigerian man, John Evioma. In 2001 Evioma asked him if he could source some coral beads for him in Nigeria. In December 2001 he bought a bag of coral. The profit margin was substantial and he then bought coral on almost a monthly basis being paid by Evioma in cash when he delivered the beads to Manchester. Part of the money discovered at Pinto House represented cash he had been paid for the coral. He obtained the coral in Nigeria from Chief Sunny Obah. He would leave cash with the local bureau de change man, Al Haji Abdullah, and after he had checked the coral in the United Kingdom, Chief Obah would be paid. 23. As for the fish found in his luggage, the fish heads did not belong to the sort of fish he would have bought. His luggage was heavy owing to the presence of coral beads and the tinned food and household necessities he usually took with him for use in Nigeria. He would also bring back food, which included smoked catfish and which accounted for the fish found in Pinto House. 24. Martin Ike was his driver/personal assistant in Lagos. He assisted him with heavy luggage and with the checking in procedure at the international and local airports. He had been in his personal employment, rather than employed by G & E Solomons (the appellant’s company) for some eighteen months prior to 5 September, and this explained why his name was not on the company payroll. On 4 September the appellant returned to Lagos from Port Harcourt en route to the United Kingdom bringing bags of food items, shoes and other things in his cases. The keys to his luggage were kept in a particular bedroom drawer in Port Harcourt and there was another set in a wallet. Ike was one of three staff who had access to the keys and knew the combination to the locks. Ike picked him up at Lagos and took him to the Sheraton Hotel. Ike said he had a headache and felt dizzy and so he stayed in the hotel room with the luggage. Chief Obah arrived with a bag of coral beads. The appellant asked Ike to split the coral into two packs and pack them in his cases. He left the keys in the room and went out for about three and half hours. On his return the cases were packed and locked and Ike took him to the airport. He said that he would go to the airport alone but Ike said he did not want him lifting the heavy luggage. At the check-in counter he noticed that Ike was unduly protective of the luggage. He was sure that his bags were opened but was unable to see because Ike was standing there. He had no idea there were drugs in his luggage and had never had anything to do with them. At Heathrow Airport he got a porter to retrieve his luggage and was then stopped. The fish products and the cocaine were not his and nobody except Ike had had the opportunity to put the items in his bag. 25. When cross-examined about his income he agreed that his Nigerian bank accounts did not show deposits relating to the sale of his two companies. He said that was because the payments were in cash, local currency. He produced bundles of receipts. One of the points relied on by the prosecution was that 500 naira was the largest available bank note in Nigeria. It was worth approximately £2.50. A vast number of notes would therefore be required to make up a sum of £1.25m or £2.2m. 26. As far as the coral was concerned the appellant would make up necklaces and then pack them into small plastic bags, placing them in a container and taking them to Evioma in Manchester, either at La Maison Hotel, or his shop in the Arndale Centre. The appellant sometimes paid Chief Sunny Obah but on the occasion in September he did not do so and that was because Evioma had said that the beads were not of the quality he wanted. There was a total of five consignments of coral. On 4 September he paid Chief Obah £10,000. The maximum Evioma had paid him was in the region of £80,000 to £100,000, not all at once but in instalments. He had not made that business part of G & E Solomons although he hoped to do so later. The bulk of the money that he brought from Nigeria and put into United Kingdom bank accounts was from the sale of his companies. In his diary he had not mentioned the high profits he got from dealing in beads in case others jumped on the bandwagon and brought the prices down. Overall the profit margins were 80/85 times the cost and the total sales were about £1/2m. Asked about the words “outlet” “factor” and “agent” in his diary, they were all terms used in connection with the coral beads. It was his dealing with the coral beads which explained his trips to Manchester. He had known since arrest that coral beads and money for them in Manchester were important in response to the prosecution case of what he was doing and agreed that there was no mention of them in his defence statement which he had signed. He said this was because he did not know he was supposed to mention it in his statement and was guided by his original legal team. He did not accept the coral beads were a new invention. Any diary entries as to the urgency of preparing goods and delivering them to Manchester were not references to drugs but to coral beads and the sooner he delivered them the sooner he got paid by Evioma. 27. The Luigi bag recovered from his house did not belong either to him or his wife but had been left at this home in April 2002 following a visit by his wife’s cousin and his girlfriend. He looked in the bag and touched the scales which he had mistaken for a calculator. That accounted for his fingerprints. He was unaware of the withdrawal of money from his assets in Nigeria by Mr Nwosu at a time when he was no longer trading and denied the suggestion that it was paid to Ike to secure a confession. He did not know where the drugs were destined to go. Ike was not on the list of his employees because he was not one of the employees at Port Harcourt but was paid personally by him. He had been told that Ike had confessed to placing the drugs in his bags but he did not know what he had said. 28. The Crown called the appellant’s chauffer, Mr Arnold. He started working for the family in April 2002. On 8 May 2002 he took the appellant to Heathrow Airport. He had two large and extremely heavy suitcases, a briefcase and a holdall. He had the same luggage on his return. One of the bags was very heavy and felt cold. When they got home the cold bag was taken into the kitchen. He again took the appellant to Heathrow on 11 July. He had the same very heavy bags and he saw tinned food. On his return he had the same luggage, but one of the suitcase smelled strongly of rotting fish. He saw maggots in the boot of the car. The last occasion he took the appellant to the airport he again had extremely heavy luggage and there were lots of tins. He was expecting to pick him up on 5 September. He had previously seen a dead fish partially wrapped in newspaper at the house. It was of medium size with a large hole in the middle and the appellant’s brother in law was eating from it and some of it was being boiled. He smelt the same distinct smell that he noticed from the suitcase. 29. The appellant called a number of defence witnesses. Mr Nwosu was an employee. He gave evidence of the sale of the two companies, saying he received the money in naira in instalments which he took to the bureau de change and changed into pounds sterling. He said that two debtors Lillian Okareki and Damian Ekumai Fo had paid money in advance for mobile phones and cars. He had been threatened that he and his family would be killed and so on 20 November he paid them from cheques previously signed by the appellant. He denied that the money had been withdrawn to pay for the appellant’s defence. He confirmed that he was aware of the appellant’s business dealing in coral beads with Chief Sunny Obah. 30. Mr Karinjo was a senior economist with the Nigerian Data Bank. He gave evidence on the question of cash transactions in Nigeria, there being both a formal and informal exchange market. Informal markets were permitted to transact business up to $5,000 but what was catered for by regulation did not necessarily happen. 31. Mr Egetoru provided a statement that was read. He produced audited accounts for the appellant’s company G & E Solomons Ltd for two accounting periods ending 20 August 2001 and 20 August 2002. He inspected the financial records, interviewed members of staff and ascertained that the company traded in the importation of vehicles, textiles, materials, imitation leather and mobile phones. 32. The company imported and exported coral beads and was involved in the business of contract financing and exportation. Mr Nwosu was able to assist with any information to enable him to carry out the audit. He produced a draft audit followed by a final version for the directors to sign in early September 2002. All financial records used during the audit were returned to the company. The Crown pointed out that Egetoru had described himself to the entry clearance officer in Nigeria, when interviewed with a view to coming to this country, as an “accounting clerk”. 33. Evioma, who was a non practising lawyer, said he had met the appellant in August 2001 and asked if he could source coral beads for him. In December they met in La Maison Hotel and the appellant brought 15-20 pieces consisting of necklaces and bracelets. They were sold at a market stall in the Arndale Centre in Manchester by Damian Ajola for £34,000. He collected the money from Ajola. The same procedure was followed each month until August 2002. There were no receipts as such but when a consignment was fully paid he gave the appellant an ‘entry of transaction’. He made a profit of £1,000 on each transaction. The evidence of the marketing manager of the Arndale Centre was that no one called Damian Ajola had a stall at the Arndale Centre either in 2002 or at all and to his knowledge there was no stall selling coral beads. 34. Chief Sunny Obah’s evidence was that he introduced the appellant to trading in coral beads in December 2001. He supplied him with large quantities of coral. On the first occasion the appellant paid him £20,000. In August 2002 he went to the Sheraton Hotel, Lagos and handed bags of coral to Ike who transferred it to the appellant’s bags. He never gave the appellant any receipts for money. 35. The customs, who examined all the property seized at Pinto House, saw nothing that related to the importation of any goods from Nigeria into the Untied Kingdom. The customs officer who travelled to Nigeria and examined financial and business documents found nothing relating to the exportation of coral beads. 36. At the trial the defence relied strongly on the evidence of Ike. This was in the form of a deposition taken before the Federal High Court of Nigeria on 23 October 2003. There was also before the court his confession statement made to the National Drug Law Enforcement Agency (“NDLEA”) on 28 November 2002. This was a 6 page handwritten statement which was said to have been produced in just 35 minutes. But for the evidence of Ike the appellant would have had no explanation for how over £3m worth of cocaine was hidden inside 15 dried fish in his luggage. How did Ike come on the scene? NDLEA officers making enquires into the appellant’s assets in Nigeria learned about Ike from Nwosu. Soon afterwards Ike was seen and made the statement of 28 November. He was charged with 2 offences and released on bail. On 10 June 2004 he pleaded guilty to (1) conspiring with Mustapha to export hard drugs to the United Kingdom and (2) aiding Mustapha to export hard drugs to the United Kingdom. He was sentenced to 5 years imprisonment. Ike’s evidence could not of course, as it was read, be tested by the Crown in cross-examination. 37. Ike’s evidence was that he was approached by Mustapha in August 2002 with a business proposal that could make him big money. He wanted Ike to put fish in his boss’s luggage. The fish were to go to a friend of Mustapha’s in London. The fish packages would be removed by Mustapha’s friend without the appellant’s knowledge from his luggage when he arrived at London airport. He would be paid £5,000. On 27 August he gathered the materials which included newspapers wrapping foil, cellotape and cling film and took them to Mustapha. On 4 September, as soon as the appellant left the Sheraton to go and change some money, he met Mustapha in the car park where Mustapha gave him the 15 fish that he carried back to the appellant’s hotel room. He packed the fish in the appellant’s luggage removing some heavy items to make room. He was given £2,000 with the balance to be paid on the arrival of the fish in the United Kingdom. 38. The Crown’s case was that Ike’s evidence had been ‘bought’ by the appellant. The appellant’s bank account showed a withdrawal of 9,700 naira (the equivalent to £43,000) by Nwosu on the same day as 6,800 naira (the equivalent of £34,000) was drawn from G & E Solomons account. This was the day on which Nwosu went to Lagos and made the statement about the coral beads and told the NDLEA about Ike who made his confession about a week later. The appellant’s evidence was that he was unaware of the withdrawals. Ike denied being paid to give false evidence. 39. It will be apparent from the summary of the evidence that we have given that there was a very strong case against the appellant that he was well aware of the contents of his luggage when he was arrested at Heathrow airport on 5 September 2002. The jury in convicting him must have rejected the evidence of Ike. The appellant submits, however, that crucial evidence was missing at the trial namely the evidence of Mustapha. Had the jury heard from him it would have leant strong support to Ike’s account and the verdict might have been different. Fresh evidence. 40. Mustapha gave evidence to us in summary as follows. He was born on 16 February 1954 in Lagos. Between 1990 and 2002 he lived for most of the time in Abidjan where a cousin took him to start a textile business. Then he started dealing in drugs, having been introduced to them by a man he met in Ghana whom he referred to as RSK. RSK gave him money which he used to buy drugs from Colombia and Brazil. He dealt with RSK for five years and began exporting cocaine to the United Kingdom in 2001. RSK gave him the contacts. When RSK died Mustapha took over the business. RSK gave him or left him with millions of naira to send to Brazil. Mustapha said he had made four successful transportations of cocaine to the United Kingdom before the unsuccessful one involving the appellant, but he was unable to remember the quantity on each occasion. In each instance it would be put in the carrier’s luggage without his knowledge. 41. His main contact in England was Scott MacMillan, an ex police officer. The appellant had his telephone number. He also had two contacts in the customs, Chris Harrison and a man called Bashir. 42. After the carrier had cleared customs, his bags would be snatched at gunpoint, Scott MacMillan having been given a description of the person carrying the drugs. His ‘boys’ in London, Sunboy and Aki would then distribute the cocaine. Bashir received 10% of the profit and the rest would be exchanged at a bureau de change in Bayswater. 43. Mustapha first saw the appellant in earlier 2002 at the Sheraton Hotel in Lagos where the appellant was in the habit of staying. Mustapha regarded him as a promising person to use as an unsuspecting courier because he was old and therefore unlikely to resist at gunpoint. Also, he could monitor his movements. 44. Mustapha had an office at 121 Borno Way, Lagos. This was, he said, a modern two storey building and he had a three bedroom flat on the ground floor. He did not live there but used to meet business associates there. 45. He saw Ike first in the car park and met him three or four times before he used the appellant. Ike at first refused to assist but eventually agreed to on being offered £5,000, £2,000 initially and £3,000 on the successful arrival of the drugs in the United Kingdom and on being assured that his employment by the appellant would not be affected. He did not divulge to Ike how the drugs would be removed from the appellant once the consignment arrived at Heathrow. 46. Mustapha had not previously used fish to conceal the cocaine and was unaware of the difficulties that this might cause at the airport. He knew what the appellant usually took to London. 47. Mustapha bought the cocaine with money withdrawn from the Union Bank. The cocaine came from Colombia. He wrapped the cocaine with two of his ‘boys’. He did so in a room at the Sheraton which he had booked for a week. The drugs were in 100gm packages wrapped in cling film and secured with cellotape. They were placed in the fish and newspaper was also used in the wrapping process. 48. Obioma Okonkwo, whom Mustapha used as a dept collector in England, monitored the appellant for Mustapha for a period of about three months. 49. Mustapha gave the packaged fish to Ike the day before the appellant was due to travel to the United Kingdom. At his request, Ike brought him a spare key for opening the luggage. 50. When he did not hear from Scott MacMillan he knew something must have gone wrong. Mustapha travelled to Abidjan so that Ike would not locate him. Between September 2002 and November 2003 he travelled back to Nigeria to generate funds by selling properties. 51. In November 2003 he returned to Lagos from Pakistan with nearly 1kg of heroin in his intestines, and 20kg of cocaine in his luggage. He was travelling under the name of Olanrewaju with a passport in that name. He was arrested on arrival; the authorities found the cocaine immediately and he passed the heroin over a period of days. Mustapha’s evidence was that thereafter he remained in custody and it was not until some months later that he was identified as Mustapha. NDLEA officers then searched 121 Borno Way where they found cling film, passports, some white nylon, a fish and his diary all of which he claimed had been there since the unsuccessful importation in September 2002. Photographs were then said to have been taken at the NDLEA building showing, inter alia, Mustapha and the seized items. 52. Mustapha produced six sheets of statement of account for his personal account with the Union Bank of Nigeria. He referred to three credit entries each of 5m naira on 5, 15 and 23 August, and a withdrawal by a cheque for cash dated 28August 2002 of 70m naira, which he said was the money used to buy the drugs put in the appellant’s suitcases. 53. He also produced a charge sheet setting out seven charges to which he had pleaded guilty in the Federal High Court of Nigeria and for which he had received a sentence of 10 years imprisonment. The first, second, fourth and seventh charges relate to the importation with which the appellant is concerned; the third to the importation of cocaine into Nigeria on 30 November 2003; the fifth and sixth to two of the earlier importations into England said to have been in 1998 and 2001. Interestingly, no charge related to the importation of heroin on 30 November 2003 in the name, of Olanrewaju. 54. Finally, he said he had been seen by someone who came to the prison in the first week of December 2005 but refused to give his name, albeit saying he was a United Kingdom customs officer. 55. The appellant called two other witnesses, Dikko Salisu and Lawan Dahiru. They were both NDLEA officers. Dikko told us that Mustapha was stopped at Lagos airport on 30 November 2003 in the name of Olanrewaju, albeit he, Dikko, was at the NDLEA headquarters at the time and did not become involved until Mustapha was transferred there. At some point, an informer told them that the man purporting to be Olanrewaju was in fact Mustapha. Ike then picked him out on an identification parade. Mustapha was at the time on the NDLEA wanted list. The witness was uncertain of the date of the identification but thought that it was between December 2003 and February 2004. 56. Thereafter, there was a search of 121 Borno Way; Mustapha went with them. Mustapha’s evidence had been that he did not go with them. The items were taken to the NDLEA headquarters and photographed. Mustapha was interviewed about what had been found and made the statement dated 10 June 2004. On 29 November 2004 Dikko completed a report which was produced to the court. In cross-examination he said that 121 Borno Way was a bungalow with rooms facing each other; Mustapha had said it was a modern two storey building. 57. One of the items said to have been recovered from 121 Borno Way was a passport in the name of Mustapha. An incomplete copy was produced by the appellant and a more complete, but still not fully complete, copy by the respondent. The appellant’s explanation was that at the time it was copied its only perceived relevance was to identity rather than movement. The respondent’s explanation was that the probability was that blank pages were not copied. In any event, the court does not have the original document, which is, so we understand, with the authorities in Nigeria. The copy produced by the respondent is of interest because there are three stamps showing entry to the United Kingdom. These are dated 16 February 2002, 8 May 2002 and 29 September 2002. There is also a visa which, although difficult to read, appears to be valid from 30 December 2001 until 30 December 2002. In answer to a question during his evidence Mustapha said that no one could have used this passport other than himself. He came to the United Kingdom on one occasion only in 2002. And that was in February. 58. The second NDLEA witness, Lawan Dahiru’s involvement began with the search of 121 Borno Way. In his statement he made no mention of the date of the search but in evidence he said it was July 2004. He too said Mustapha went with them. 59. The respondent produced a considerable number of witness statements and documents with a view calling rebutting evidence. In the end no such evidence was called but several admissions were made by the appellant. It was admitted that various photocopy documents produced came from the files in Nigeria relating to the cases of Mustapha, Ike and Olanrewaju. It was further admitted that 121 Borno Way is a one level building in multi occupancy. 60. Unsurprisingly the respondent made enquires about the men named by Mustapha as his contacts in London. There was no evidence that anyone by the name of Scott Macmillan had ever been a police officer or that such a person exists. There are a number of Christopher or Christian Harrisons, but none of them has ever been in any position to assist Mustapha with importation from Nigeria. The same is true of Bashir who was suspended from duly on 14 June 2001 and died in April 2002. His suspension had nothing to do with the importation of drugs from Nigeria and concerned events far removed in time and circumstances from the present case. Analysis. 61. As Mr Michael Mansfied Q.C., who had appeared on this appeal for the appellant rightly pointed out, in order for his client’s appeal to succeed there are two critical barriers to be overcome. These concern the credibility of the fresh evidence and its impact. The questions for the court are whether the fresh material is capable of belief (see s.23(2)(b) Criminal Appeal Act 1968) and if so whether it might have made a difference to the jury’s verdict. We are assuming for present purposes that the other criteria for the admission of fresh evidence are met. This is a case where it was necessary for the court to hear the fresh evidence before making a decision on credibility. 62. Had we been of the view that Mustapha’ evidence was capable of belief we should have had to go on to consider whether the jury’s decision might have been different keeping in mind the cautionary words of Lord Bingham of Cornhill in R v Pendleton [2002] 1 Cr AppR 441 that the court should be careful not itself to take on the jury’s role. In the event, however, we have come to the conclusion that Mustapha’s evidence is not credible. Each member of the court has independently come to the conclusion that nothing he said in evidence can be relied upon. In reaching this conclusion we have made allowance for the fact that his evidence was given by video link from Nigeria. 63. There are many respects in which his account of events seems to us to be inherently unlikely. His evidence raises many unanswered questions and most significantly there are number of instances in which his evidence was demonstrably untrue. In short we are unable to accept anything he says unless corroborated by some other reliable source. 64. The starting point is that the appellant was found at Heathrow with cocaine in his luggage having a street value of over £3m. Those who deal with drugs to this value are unlikely to let them out of their possession into the hands of an innocent third party. Two questions immediately arise. How were they going to be retrieved and how were they paid for in the first place? Mustapha’s evidence was that the appellant’s bags would be snatched at gunpoint after he had cleared customs. It is one thing to suggest that the appellant being old would be unlikely to resist, quite another to see how such an operation had a realistic prospect of success without the police being alerted and any final getaway foiled. For one thing the total weight of the luggage was very considerable, about 100kgs. Further, in order to be successful the robbers had accurately to identify the appellant whose description was said to have been given to Scott MacMillan. We are not persuaded Scott MacMillan exists and minimal information was given by Mustapha about what he said were four previous successful operations each with different unsuspecting carriers. One might have thought there would have been complaints to the police by victims or witness. In short, with such a valuable cargo as £3m worth of cocaine one would have expected a much more careful and sophisticated plan to ensure the appellant could be relieved of it without the apprehension of the robbers. 65. As to the second question, an enterprise on this scale required a considerable outlay. Mustapha said he drew 70m naira from the Union Bank in Lagos to pay for the drugs. He cashed a cheque in the bank; he was in the bank about an hour doing so. He produced a set of six statements purporting to be from the Union Bank. 66. Five of the Union Bank statements were said to cover the period 20 November 1998 to 30 August 2002; the sixth was said to cover the period 20 November 1998 to 30 August 2003. They were prima facie in chronological order, although no statement referred to the specific year or years to which it related. The first entry on the first statement was 20 November and the last 29 October of, apparently the following year. The second statement ran from 18 November until 31 October the following year. The third statement ran from the end of October until the following June; the fourth from June until the following February; the fifth from March until October and the sixth, which covered less than half a page was for October and November. If the statements ran as they purported to chronologically, that would be November 2002. 67. On each of the six statements the available balance is said to be 58,98,689.18 naira regardless of the figure in the balance column which is sometimes more and sometimes less. 68. Entries are recorded against non-existent dates e.g. 31 September, 31 November. A computerised statement would not make an error of this kind. We are unable to place any reliance on the bank statements. The respondent produced a letter from the Union Bank dated 20 January 2006 stating (i) that the account number and names do not exist in the bank’s books and (ii) that the statement of account is a forgery. This document was not proved in evidence and we have disregarded it in reaching our conclusion that the six pages are indeed forgeries. 69. The production of the forged bank statements to support his contention that he withdrew 70 million naira from the bank at the time when he says he acquired the drugs is in itself sufficient to make us doubt the truth of anything Mustapha told us. But there are other difficulties about his evidence. 70. Mustapha gave a careful account of his weighing and packaging of the cocaine into the fish which ended up with a total weight of cocaine that equated closely to the weight found by the customs converted to 100% purity rather than the actual weight of the drug 46.9kg. It is true, as Mr Mansfield pointed out, that Mustapha had also said you could get just over 3kgs into each fish, which did equate closely with the actual weight, but we were left with the clear impression that he was trying to persuade us to believe he had packed the cocaine because he knew the total weight that he had packed. 71. Further, the evidence about the packing of the fish was not consistent. Ike said in his deposition that on 27 August he took the materials which included newspapers, wrapping foil, cellotape etc to Mustapha having been told not to touch any of them without gloves on. Mustapha had given him some gloves. None of that appeared in his earlier statement where he simply said he collected the fish packages from Mustapha and they were wrapped in newspaper and “something like water proof” and then cellotaped. 72. The evidence as to discovery at Heathrow was that two at any rate of the fish were wrapped in Sheraton Hotel plastic laundry bags. The outer wrappings of the fifteen fish packages were newspaper. The newspaper was all Nigerian bar one page from the South London Press dated 29 May 2001 which was inside a Nigerian paper dated 7 September 2002. The newspapers on the fish found in Pinto House all originated in Nigeria and two of them were distinctly stamped “Sheraton Hotel, Lagos”. 73. The judge described the packaging this way in his summing up: “Each outer layer was covered with sheets of newspaper. Inside those sheets of newspaper was silver foil of a flexible type, the sort that is used in sweet wrappings. That is what enclosed the contents. Inside the foil was a layer made up of parcel adhesive tape wound round and round and round to the items secured by the tape. These items were a number of individual polythene bags of powder pushed together so as to form the shape of a fish body. They were on either side of the flat, dried fish itself, which formed a rigid spine against which the cocaine bags were held with the tape. The small bags enabled a realistic fish shape to be achieved with the dry fish head protruding at one end and the dry fish tail protruding at the other. Constructed from three layers of clear plastic bags, one inside the other.” 74. All the smaller inner packages were constructed from three layers of plastic bags, one inside the other and each held a quantity of off-white powder. 75. Mustapha’s evidence about how the drugs were packed differed markedly from the description of what was found in London. He made no mention of the foil. Further, despite explaining in some detail how the cocaine was packed he did not ever mention three bags or layers of plastic each inside the other. He said he put the packages inside the fish, which is what he had previously said in his statement and in his affidavit. The drugs were found packed not inside but around the fish. Nor did Mustapha make any mention of the separately identifiable packages of ‘crack’ cocaine. If Mustapha packed the cocaine it is difficult to see why the newspaper packaging included a page from a South London newspaper. 76. Mustapha was inconsistent in his description of how he handed the fish over to Ike. In his statement and affidavit he said the handover was in the Sheraton Hotel car park. In his evidence he said he took the fish into the interior of the hotel and up to Ike’s room with all 15 fish in a big leather bag. Bearing in mind the drugs alone weighed almost 50 kilos the combined weight of the drugs, the fish, the packaging and the bag would have been well over a hundredweight and bordering on impossible for one man to carry. In his statement Ike simply said he collected the fish packages from Mustapha. In his deposition he said Mustapha gave him the 15 fish packages in the car park and he carried them into Dr Solomons’ room. 77. When Pinto House was searched remnants of fish were found wrapped in Nigerian newspapers and two of them were stamped with Sheraton Hotel, Logos. 78. To complete the evidence of wrapping we refer to the appellant’s housekeeper in Port Harcourt, Lilian Lena, who was called by the defence at the trial. In September 2002 she packed one catfish that came from the market. She wrapped it in newspaper and cellotaped it. She saw Ike on 26 August. He was moving newspapers. She also saw him collecting cling film. He looked shocked and afraid and begged her not to tell anybody. The Crown suggested this evidence was not reliable and was simply called to bolster Ike’s evidence. The witness said the newspapers were English and had come from the United Kingdom wrapped around fresh fruit which had been brought from England. The judge in summing up made the point that if the appellant’s routine was to have the fish bought and wrapped in Port Harcourt it was difficult to see why some of the newspapers found at Pinto House and around the fish seized by customs at Heathrow had Sheraton Hotel stamped on them. 79. What is the explanation for the packaging materials and other items said to have been found at 121 Borno Way? Their discovery is evidenced by the witnesses Dikko and Lawan. There is no identification of the date of the discovery save that it was after Ike identified Olanrewaju as Mustapha and before Mustapha’s confession of June 2004. The question is whether the items had been at 121 Borno Way since around September 2002 when the drugs were packaged or whether they had been deliberately put there for NDLEA officers to find. If Mustapha’s evidence to us was false the latter could be an integral part of that falsity. 80. Ms Ginn, who has appeared for the respondent as she did at the trial, submits there is no proof that the man purporting to be Mustapha is that person, if he exists at all. Apart from Ike, whose evidence generally must have been disbelieved by the jury, the only evidence of Mustapha’s involvement in the appellant’s September 2002 importation comes from Mustapha himself. She submits that there is no credible evidence of his involvement in the September 2002 importation. On the face of the documents, she submits, Mustapha did not say he was Mustapha until 10 June 2004, the same day that Ike pleaded guilty in Lagos. 81. On the evidence we have heard and the documents we have seen we are unable to piece together a coherent account in which we have any confidence as to what happened between 30 November 2003 (Olanrewaju’s arrest) and 10 June 2004 (Mustapha’s statement). Nor in our view is it necessary to do so for the purpose of determining this appeal. 82. If Mustapha’s account of events is true he was apprehended in the name of Olanrewaju’s when entering Nigeria from Pakistan on 30 November 2003 in possession of heroin and cocaine. He had ingested the heroin and hidden the cocaine in his luggage. It does seem to us inherently unlikely that someone would take the very considerable risk of ingesting heroin whilst at the same time hiding cocaine in his luggage. There is no document to support his contention that he was arrested having swallowed heroin. The statement of Olanrewaju of 30 November 2003 refers only to cocaine. It is also unclear why, having been arrested in November 2003 and admitted importing heroin and cocaine, he was not taken to court and dealt with. Confession of the Solomons importation was not until June 2004. Further. The Investigation Report of Dikko and Lawan made in November 2004 makes no mention of the heroin for possession of which Mustapha was arrested in November 2003. A yet further puzzle is why the caution on the handwritten statement of 30 November 2003 bears the date 30 November 2005. 83. One of the items recovered from 121 Borno Way was a 1993 dairy. Copies have been provided for the court in the appellant’s bundle. Ms Ginn makes the point that Mustapha claims one of his main contacts is Bashir. The diary contains a large number of telephone numbers, but not one for him. Not only did Bashir’s misdeeds, if there were any, predate the events of this case, Mustapha’s evidence suggested he was based in London and received 10% of the proceeds of the four successful importations whereas in his statement of 24 June 2004 he had said he was based in Middlesbrough. 84. Another example of Mustapha’s inconsistency is that in both his statement of 10 June 2004 and his affidavit of 28 October 2004 he clearly stated he did not know the name of the woman who telephoned from London and suggested he might use the appellant. He repeated this in his evidence to us and yet in his statement of 24 June 2004 he said her name was Mrs Amadi or Amani. 85. Mr Mansfield submits it is impossible to dismiss the evidence of Mustapha, a self confirmed drug dealer, as incapable of belief. He says Mustapha did not know about the problems of importing fish and was therefore prepared to take the risk. The appellant did know and it is in inconceivable that he would have risked importing such a vast quantity of cocaine in this manner. Conclusion. 86. We have borne in mind this submission and the other submissions made by Mr Mansfield. We agree that if the evidence of Mustapha is sufficiently credible to throw doubt on the safety of the count 6 conviction (the September 2002 importation) then the convictions on the other counts must also be set aside. In the end, however, we are quite unable to accept Mustapha as a credible witness. Further, there was a very strong case at the trial; based on a great deal of circumstantial evidence, that the appellant was regularly importing large quantities of cocaine into the United Kingdom. The jury disbelieved the evidence of Ike at the trial and concluded that the appellant was well aware of the contents of his luggage on 5 September 2002. The evidence of Mustapha is demonstrably untrue and therefore incapable of believe. There is nothing to be added to the story the jury heard at the trial. We do not admit the evidence. We have heard nothing that threatens the safety of the conviction. The appeal is dismissed.

2006_03_07-743.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/419/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/419

d8543dcf4e2d7ec1d761cbcdd390453e7afd8c67d028baf70d23251311c367ec

[2006] EWCA Crim 3061

EWCA_Crim_3061

supreme_court

Neutral Citation Number: [2006] EWCA Crim 3061 Case No: 2005 00704 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HARROW CROWN COURT MR RECORDER MITCHELL QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/12/2006 Before : LORD JUSTICE RIX MRS JUSTICE DOBBS DBE and SIR CHARLES MANTELL - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Samuel Uwankonyemma Nwangoro Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2006] EWCA Crim 3061 Case No: 2005 00704 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HARROW CROWN COURT MR RECORDER MITCHELL QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/12/2006 Before : LORD JUSTICE RIX MRS JUSTICE DOBBS DBE and SIR CHARLES MANTELL - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Samuel Uwankonyemma Nwangoro Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr S. Connolly & Mr J. Wing (instructed by Crown Prosecution Service) for the Crown Mr N. Valios QC & Miss P. Rose (instructed by Messrs Fisher Meredith ) for the Appellant Hearing date : 20 October 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Rix : 1. This appeal arises out of confiscation proceedings following a plea of guilty to a single count of conspiracy to defraud made by the appellant, Samuel Uwakonyemma Nwangoro, at the Crown Court at Harrow on 2 April 2004. On 7 January 2005 those confiscation proceedings concluded in a confiscation order made by Mr Recorder Mitchell QC whereby the appellant was ordered to pay £240,000 under the Criminal Justice Act 1988 with 35 months imprisonment in default of payment. That, if served, would be consecutive to the sentence of 9 months imprisonment which the appellant received for the substantive offence. Issues concerning jurisdiction, fairness, benefit and realisable property arise. 2. The background to the sentence can be briefly stated. Over a nine year period between 1995 (starting with 20 November 1995) and 2003 (ending with 26 January 2003) the appellant had made false claims to the London Borough of Brent (the “council”) in respect of housing and council tax benefit. He failed to declare that he owned his own house or that he was in receipt of rent by letting it out. As a result he had obtained accommodation from the council, most recently at 15 Tillett Close in Neasden, where he lived, and substantial discounts on the rent which he would otherwise have been charged for living there. The direct benefits thus wrongly obtained amounted to £48,899.73. The long period of offending only came to light following his application in April 2002 to purchase his council flat under the right to buy scheme. 3. Checks then made revealed a string of property transactions which had begun in June 1975 when he and his wife had jointly purchased 61 Pendle Road in Streatham with the aid of a mortgage. By the end of the confiscation proceedings the following facts had emerged. Pendle Road had been purchased as a matrimonial home. However, by August 1994 the appellant had started to rent it out. By then he was living in another property, 61 Conifer Gardens , which he had purchased in his own name on 10 August 1993, almost entirely with the aid of a mortgage, putting in a deposit of only £2,850. He claims that this was also a matrimonial home shared with his wife. From 25 October 1995, however, having moved (or being just about to move) into council accommodation, he was able to rent out Conifer Gardens. On 14 December 1998 he sold Conifer Gardens and personally received the net equity, after all expenses, in the sum of £80,767.67. The next year, on 24 September 1999, the appellant purchased his third property at 66 Stag Lane . Again he did so almost entirely with the aid of a mortgage, this time putting in a deposit of only £6,200, and for these purposes using part of the proceeds of sale of Conifer Gardens. He rented out Stag Lane from 29 November 1999. He still owned Stag Lane at the time of the confiscation proceedings. His fourth purchase, in December 2001, was of 74 Frithwood Crescent , again almost entirely with the aid of a mortage: his deposit on this occasion was only £7,750 (but that was funded out of an additional mortgage obtained on Stag Lane). This too he rented out. 4. Thus at the time of the confiscation proceedings, the appellant still owned the matrimonial home at Pendle Road, and also the properties at Stag Lane and Frithwood Crescent. He had meanwhile sold Conifer Gardens at a substantial profit. What has happened to that profit is not clear: the subsequent properties were purchased almost entirely with borrowed funds, but the appellant claims to have spent the sale proceeds on buying and renovating Stag Lane and on his children. 5. Following his arrest, the appellant sought to dispose of his property or conceal his interest in it in an attempt to protect himself from just such proceedings as have occurred. Thus on 22 June 2004 he gifted his 50% interest in Pendle Road to his wife. He has maintained that Stag Lane was jointly owned with another, but the recorder found that the transfer into joint names which he relied upon was a forgery. He has also maintained that Frithwood Crescent was purchased by him for another and that he has no beneficial interest in it. The recorder, however, said that there was no evidence to support that contention, a fortiori where its deposit had been financed out of the further mortgage on Stag Lane. Benefit and realisable property 6. In these circumstances the recorder found that the appellant had received benefits and/or pecuniary advantages as a result of or in connection with the commission of his offence and that his realisable property was more than sufficient to support a confiscation order in the amount of £240,000. We think there is no need to burden this judgment with unnecessary detail about the make-up of the figures concerned. However, the essence of the matter is as follows. 7. The recorder found benefit obtained in the sum of £369,740.97. This was made up of (a) the direct benefit of £48,899.73 referred to above (“the £49,000”); (b) the rental income on the various properties which had been let following the commencement of the appellant’s offending, totalling about £81,000; and (c) the capital appreciation on Conifer Gardens, Stag Lane and Frithwood Crescent (about £240,000). 8. The recorder next found realisable property in the sum of £317,943.15. This was made up of the appellant’s equity in Pendle Road, Stag Lane, and Frithwood Crescent, plus some modest amounts of cash in the bank. 9. On the basis of these sums, the recorder then took account of £40,000 which the appellant had already borrowed and paid by way of compensation to the council, and of an additional compensation order in the sum of £8,889.73 which the recorder made in order to compensate the council entirely for its direct loss, so as to arrive, in his discretion, at an overall figure for the confiscation order in the sum of £240,000. In effect, the recorder discounted the maximum sum in which he might have made an order by some £28,000 (if allowance is also made for the compensation payments). He gave the appellant 15 months to realise his assets, and fixed a term of imprisonment in default of payment of the confiscation order of 35 months. 10. Finally, the recorder sentenced the appellant to 9 months in prison for the offence itself. This sentence was heavily discounted by reason of personal mitigation, including ill health. 11. The prosecutor’s statements served for the purpose of the confiscation proceedings had summarised its findings as follows: (i) direct benefit of £48,889.73, (ii) a pecuniary advantage of £386,027.58, (iii) realisable property of £365,214.61, and (iv) compensation of £81,747.40. 12. The appellant served reports prepared by Mr Maurice Faull, a forensic accountant, in which Mr Faull submitted that (a) a causal link between the criminal activity and the rentals received was accepted albeit on one house only, in the sum of £69,216.05; (b) that that sum should be rebated as to 50% to £34,608.03 on the ground that, even if the appellant had not had subsidised housing from the council, he would have lived in only a few rooms of his house and let out the rest; and (c) that no causal connection between the offending and the capital appreciation on the appellant’s properties had been shown, since he would have been able to support his mortgages on the basis of his rental income, his wife’s income, and other legitimate benefits. It was conceded, however, that there was no need to take into account the cost to the appellant of servicing his mortgages. 13. The appellant did not give evidence on his own behalf at the confiscation proceedings. Criminal Justice Act 1988 14. Since the course of offending went back to 1995 the relevant provisions for the conduct of the confiscation proceedings were those of the Criminal Justice Act 1988 as amended by the Criminal Justice Act 1993 (the “1988 Act”). However, the further amendments introduced by the Proceeds of Crime Act 1995 (“ POCA 1995”) did not apply. For relevant purposes it should be noted that under the 1988 Act, as distinct from POCA 1995, the court did not have a discretion of its own to institute confiscation proceedings, which were in the hands of the prosecutor, who was required to give to the court notice that, were the court to make a confiscation order it would be able to do so in the sum of a minimum amount of at least £10,000 (section 72). This was a procedure designed to ensure that sentencing was not delayed or the court’s time wasted on confiscation proceedings which would ultimately be of little financial consequence. Another important difference between the 1988 Act regime and that regime as amended by POCA 1995 was that under the latter, once it seemed appropriate either to the prosecutor or to the court to undertake confiscation proceedings, it was the court’s duty to do so and to make an order where it could in an amount equal to either the benefit or the amount that might be realised, whichever is the less; whereas under the 1988 Act, the undertaking of confiscation proceedings or the making of any order always remained entirely in the court’s discretion, even where the prosecutor had initiated matters by serving its minimum amount notice. Consistently with these changes, the requirement of the prosecutor’s minimum amount notice was also dispensed with by POCA 1995. When years later in 2004 in this case the recorder came to consider the question of confiscation proceedings, the fact that the 1988 Act and not the POCA 1995 regime applied was initially overlooked. As will be seen, this has caused complications and given rise to issues on this appeal. 15. A full account of the relevant provisions of the 1988 Act and the changes wrought by POCA 1995 can be found in the judgment of this court (Lord Woolf of Barnes CJ) in R v. Sekhon [2002] EWCA 2954, [2003] 1 Cr App R 575 . For present purposes it will we think suffice to set out the following sections of the 1988 Act: 16. Section 71 is headed “Confiscation orders”: “71. (1) The Crown Court and a magistrates’ court shall each have power, in addition to dealing with the offender in any other way, to make an order under this section requiring him to pay such sum as the court thinks fit. (2) The Crown Court may make such an order against an offender where – (a) he is found guilty of any offence to which this Part of this Act applies; and (b) it is satisfied – (i) that he has benefited from that offence…and (ii) that his benefit is at least the minimum amount… Subsections (1) and (2) were replaced by POCA 1995. In particular the new section 71(1) said that “it shall be the duty of the court” to conduct confiscation proceedings if either the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to do so or the court considers, even in the absence of such a notice, that it would be appropriate to do so. (4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained. (5) Where a person obtains a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage. (6) The sum which an order made by a court under this section requires an offender to pay [must be at least the minimum amount, but must not exceed] The language of the 1988 Act. [shall be equal to] As amended by POCA 1995. (a) the benefit in respect of which it is made; or (b) the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less. (7) For the purposes of this Part of this Act the minimum amount is £10,000…” Deleted by POCA 1995. 17. Section 72 is headed “Making of confiscation orders” and provides: “72.(1) A court shall not make a confiscation order unless the prosecutor has given written notice to the court that it appears to him that, were the court to consider that it ought to make such an order, it would be able to make an order requiring the offender to pay at least the minimum amount. (2) If the prosecutor gives the court such a notice, the court shall determine whether it ought to make a confiscation order… (4) If the court determines that it ought to make such an order, the court shall [before sentencing or otherwise dealing with the offender in respect of the offence or, as the case may be, any of the offences concerned] Taken out by section 72A(8)(a) of the 1988 Act (by virtue of section 28 of the Criminal Justice Act 1993) . determine the amount to be recovered in his case by virtue of this section and make a confiscation order for that amount…” Section 72(1) to (4) was repealed by POCA 1995 (section 15). 18. As Lord Woolf said in Sekhon (at paras 7, 8 and 30/31) – “7…Thus, by reason of s. 71, before a Court had power to make a confiscation order the Court had to be satisfied that the defendant had benefited by at least £10,000. This followed a recommendation made by the Hodgson Committee which had been in favour of limiting the power to make confiscation orders by reference to a sum of money so as to prevent its operation in impracticable small cases… 8…Under s 72(1) and (2) the procedure for making an order was dependent on the prosecution giving notice that there were likely to be sufficient assets to meet it… 30. Having set out this general approach, it is convenient to return to the procedural requirements themselves. Here it is important to note that s.71 is dealing with the jurisdiction of the court. It does contain provisions which undoubtedly have to be complied with to give the court jurisdiction to make an order. The defendant must have been found guilty of the required offence. In addition, the court must be satisfied that the offender has benefited from the offence to the required extent. Section 72, on the other hand, is dealing with the procedure and procedural requirements do not usually go to jurisdiction. 31. Notwithstanding the actual language of s. 72(1) which read literally is mandatory in its terms, we would not regard it as likely that Parliament would, for example, be concerned to deprive the court of jurisdiction because of defects in the contents of the written notice which is required by s. 72(1). The notice, which does not have to be given to the defendant, starts the procedure and avoids the court being involved in confiscation proceedings if the prosecutor thinks that the court would not be able to order the defendant to pay more than £10,000…” 19. Section 72A was introduced into the 1988 Act by the Criminal Justice Act 1993, is entitled “Postponed determinations”, and was designed both to give the court time to enable the information necessary to consideration of the making of a confiscation order to be assembled and to enable sentence otherwise to be dealt with in the meantime. Postponement can only exceed six months from the date of conviction if the court is satisfied of exceptional circumstances. Thus: “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 as mentioned in section 71(2)(b)(i) above; (b) determining whether his benefit is at least the minimum amount; or (c) determining the amount to be recovered in his case by virtue of section 72 above, 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… (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.” 20. Section 74 is headed “Definition of principal terms used”. It reads in relevant part: “74. (1) In this Part of this Act, “realisable property” means, subject to subsection (2) below – (a) any property held by the defendant; and (b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part of this Act… (10) A gift (including a gift made before the commencement of this Part of this Act) is caught by this Part of this Act if – (a) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings to which the proceedings for the time being relate; and (b) the court considers it appropriate in all the circumstances to take the gift into account.” 21. Section 102 is an “Interpretation” section and extends the definition of benefit and pecuniary advantage under section 71(4) and (5) so as to make it clear that it does not avail to break the connection between offending and the obtaining of a benefit or a pecuniary advantage that the offending is only a contributing cause or connection. Thus: “102. (5) References in this Part of this Act to property obtained, or to a pecuniary advantage derived, in connection with the commission of an offence include a reference to property obtained or to a pecuniary advantage derived, both in that connection and in some other connection.” The grounds of appeal 22. The first ground of appeal on which Mr Valios QC, on behalf of the appellant, seeks to discharge the confiscation order relates to jurisdiction. It is submitted, in essence, that the prosecutor failed to institute confiscation proceedings by serving a notice on the court that if it chose to make a confiscation order it would be able to do so in the sum of at least £10,000 (see section 72(1) and (2)); that in error, thinking that he was dealing with the proceedings under the 1995 Act , the recorder entered on the proceedings on his own initiative and in the absence of a prosecutor’s notice; that when he purported to postpone the proceedings under section 72A, and even beyond six months from the date of conviction on the basis of exceptional circumstances, the recorder was still acting under that misapprehension; that when at last the prosecutor served a minimum amount notice on the court, but not before 6 January 2005, the six months had expired and it was too late to enter on confiscation proceedings; therefore all that had happened up to that time had been done without jurisdiction and the confiscation order that the judge proceeded to make on that day was for the same reason invalid and ineffective. 23. The appellant’s second ground of appeal relates to the unfairness of the proceedings. The point is also put in terms of abuse of process, on the basis that the appellant had been led to believe that there would be no confiscation proceedings. In the alternative it is said that the recorder wrongly failed to exercise his discretion in connection with making a confiscation order, because of his erroneous belief that he had no discretion but to do so (as if he were acting under the 1995 Act ). At times the submission had some appearance of amounting to an allegation of bias, on the basis that the recorder was determined in any event to make a confiscation order: although the word bias was never used, it was submitted that the recorder had from beginning to end approached the question of a confiscation order with a closed mind. Ultimately, we regard this rather protean range of submissions as being essentially encapsulated by the concept of unfairness, and we therefore refer to this ground under that heading, but not to the exclusion of any part of the submissions that we have heard. 24. The third ground relates to the benefit found to have been obtained by the appellant. Mr Valios submits that the judge was wrong to have accepted the prosecutor’s case that there had been a causal connection between the commission of the offence and the increase in capital values of the appellant’s properties. 25. The fourth ground attacks the judge’s findings as to realisable property, on the basis that no or insufficient allowance was made for the appellant’s wife’s interest. In particular it was submitted that, even beyond any strict legal or beneficial interest the wife had in the properties, the judge ought to have made a general 50% allowance on the basis that the appellant and his wife shared their property equally, in part because of his wife’s contributions, through her own income, towards the meeting of mortgage obligations. 26. In order to enable these grounds to be better understood and discussed, it is first necessary to refer in greater detail to the course that the confiscation proceedings took. The confiscation proceedings 27. The appellant pleaded guilty, as stated above, on 2 April 2004. At the same time, the prosecution said that it would in due course offer no evidence against Mrs Nwangoro, who had been jointly charged with her husband. Sentence was then adjourned for reports and for questions of compensation, and its quantum, to be considered. Counsel for the prosecution (Mr Space) specifically referred to the adjourned hearing as dealing with “(a) sentence; and (b) the question of amount of money and compensation”. The judge at that hearing was HHJ Black. 28. On 4 June 2004 the adjourned sentence hearing came before HHJ Mole. There appears to have been some difficulty in the preparation of a pre-sentence report, and as a result it proved necessary to adjourn the hearing a second time. Nevertheless, the appellant had come to court with “cheques for nearly £33,000” for the purpose of compensating the council. A final compensation figure, however, had not yet been agreed, although Mr Heimler, on behalf of the appellant, spoke of the total amount being “about £48,000”. He said that he proposed making a virtue out of necessity in that over the adjournment the compensation should be agreed: if agreed, the agreed figure would be paid; if not agreed, the appellant’s figure would be offered to the court in any event, in a sum which would be “above £33,000”. He submitted that with a further adjournment “we will be able to resolve this completely by then financially”. Judge Mole said that the total benefits involved seemed to him to be almost £100,000 (including the value to the council of the housing improperly obtained by the appellant). Mr Heimler disputed that latter element, saying there was no evidence for it and that it represented a “classic civil claim for the value of the loss of an opportunity”. He said – “for the record that I have been advising my client on the basis of my understanding of the law regarding criminal compensation and the £48,000, which is a direct financial loss”. 29. Sentence was adjourned on that basis. There was no suggestion from the Crown that confiscation proceedings were being contemplated. 30. Before the matter returned to court, on 20 June 2004, the appellant transferred to his wife his half-interest in Pendle Road, so that title to that property was now entirely in her name. 31. On 9 July 2004 the matter came back for sentence, this time before Mr Recorder Mitchell QC, who retained essential control of it thereafter. The appellant came to court with a cheque for £40,000. Prosecution counsel, on this occasion Mr Connolly who appears again for the Crown on this appeal, introduced the matter as being a question solely of sentence and compensation, thus: “The case was, after his plea, adjourned because there were some concerns about how much money was involved…and what the proper claim for compensation should be.” He mentioned the (now established) benefits figure of £49,000 and said “I am assuming the case is ready to be dealt with and I should now open the case”. However, as he did so, the recorder raised the question of a confiscation order. It first arose in the context of Mr Connolly telling the recorder about another aspect of the council’s claim for compensation, for a further £50,000 in respect of the value of the accommodation provided. The recorder said: “But that is more likely to impact upon a confiscation order, is it not?”, to which Mr Connolly assented. The recorder then probed the facts, suggesting that the appellant had benefited not only from housing benefit but also from the rental income on his own properties. 32. The recorder then asked this (R for the recorder and C for Mr Connolly): “R. What is the Crown’s position on confiscation? C. Well, I have only just [been] instructed last night. It seems that although there was a request for the Police to carry out a financial investigation, that has not been done. So there is no statement dealing with the question of confiscation. R. And here is a man who owns property, who has benefited from renting out those properties by being able to live in council accommodation, which he has pretended that he is entitled to, and at the same time claimed housing benefit. What are the public going to think if steps are not taken to recoup from him that which he can properly afford to pay, namely his benefit from his criminal conduct. Over, what, seven or eight – nine years I think. What is the answer to that? C. Well it seems to me that there certainly should have been and still can be, a financial investigation into his benefit. R. It seems to me that I have the power, do I not, to institute such an enquiry of my own volition?... C. Yes.” 33. Mr Connolly then proceeded to go through the facts of the case, with the recorder asking many questions. There came a point when the following further exchange took place: “R. But has a forensic accountant been instructed to look at this? C. No he has not. The first step would normally be for a specialist officer from the Police Financial Investigation Unit to make enquiries and that has not been done. R. Why has it not been done? C. I think the police were asked to, but I they think they balked. Can I get specific instructions? I have not had a chance to speak to the officer. I have only spoken to the Benefit Agency. R. I have a horrible feeling that we are about to allow to slip through the net a decade of dishonesty that has accumulated a small empire of property or value, at the expense of the taxpayer, without actually finding out whether that is right or wrong…” 34. There was then some inconclusive discussion as to whether the case fell under the POCA 1995 amendments to the 1988 Act or not, with the recorder saying that if it did not “there will be an element of discretion available to the Court, which was taken away in 1995”. He also said: “I could postpone sentence, if necessary, to allow for the enquiry”. The judge was told that the value in the three houses still owned by the appellant was “probably close to £1m”, subject to mortgages. The recorder said that “there has to be a proper financial enquiry” and expressed the view that it would be a scandal for the court to condone the absence of one. Mr Connolly agreed, saying that it appeared to him, on first sight, to be crying out for an investigation. Later in the discussion Mr Connolly was able to tell the judge that on one property alone, Pendle Road, there was equity of about £300,000. 35. Counsel for the appellant, on that occasion Ms Evans, was asked for her views. She said that everything was in dispute as far as the properties were concerned: she was instructed that the appellant no longer had an interest in any of them: one had gone to his wife, described as his “ex-wife”, another was in the hands of relatives, but on precise details her instructions were opaque. She herself asked for the matter to be adjourned “so that it can be properly dealt with on the next occasion”, and suggested that the recorder might like to consider reserving it to himself. She had earlier expressed her concern for the appellant’s health and “his terrible tearfulness this morning”, submitting that it was no fault on his part that an investigation for the purposes of a possible confiscation order had not taken place in the three months since conviction. She took instructions from the appellant, and concluded by asking the recorder not to deal with the case that day, and submitted that, as a matter of fairness to the appellant, the facts should be explored before the case came back to court. As for the £40,000 cheque which the appellant had brought to court that day, in fact a banker’s draft payable to the council, that was, again on instructions, handed to the prosecution. The recorder said that it would be taken into account in any order that the court subsequently made. 36. The recorder therefore postponed (or adjourned) sentence so that an investigation for the purposes of confiscation proceedings could be made. He said “I am going to adjourn it until the 9 th August at 10 o’clock”. (It was at one time submitted on behalf of the appellant that the recorder’s use of the word “adjourn” rather than “postpone” was significant.) He gave directions for a statement from the Crown by 30 July 2004, to which the appellant could respond up to 6 August. He explained to the appellant that the court sought to put him back in a position that he should have been in if he had not taken advantage of the state, and he asked him to cooperate. 37. On 22 July 2004 the appellant made a statement, in which he said: (1) as to Pendle Road, that it had been purchased jointly with his wife in 1975, and was now occupied by her (he said nothing about any subsequent transfers); (2) as to Conifer Gardens, that he had purchased it in August 1993 and subsequently sold it in December 1998 with net proceeds of £80,767.69; (3) that those proceeds were in part used in the purchase and renovation of Stag Lane, and in part spent on the education and relocation of his children; (4) as to Stag Lane, that he had made nothing from its rental; (5) as to Frithwood Crescent, that he had purchased it on behalf of a relative living abroad and had transferred it to its true owner in October 2003, without any personal profit; and (6) that the £40,000 handed to the prosecution had been borrowed from a bank and a finance company. 38. On 30 July 2004 the prosecutor’s statement was served on the court. It referred to the Criminal Justice Act 1988 as amended not only by the 1993 Act but also by POCA 1995. It defined the direct (section 71(4)) benefit obtained in the form of housing and council tax benefit as £48,889.73 and the pecuniary advantage (section 71(5)) benefit as totalling £362,989.24, made up of rentals and the increase in the equity of the houses over the relevant period. For this latter purpose, no increased value benefit was asserted as flowing from Pendle Road, since it had been owned since 1975. There was a compensation claim from the council in the total sum of £81,747.40. Realisable property, mainly in the form of the equity in Pendle Road, Stag Lane and Frithwood Crescent, was assessed at £365,214.61, including the £40,000 borrowed by the appellant and represented by the cheque, which the council had banked. Reference was made to some 30 bank accounts of the appellant, not all of which had been investigated. (By a supplementary prosecutor’s statement dated 9 September 2004, these figures were slightly amended: the section 71(5) benefit had risen to £386,027.48 and the realisable property to £365,214.61). On this appeal, the Crown rely on the service of the 30 July 2004 statement as amounting to a section 72(1) notice to the court that a confiscation order, if made, could be made in at least the minimum sum of £10,000. 39. On 9 August 2004 the proceedings returned to court, before the recorder. Mr Connolly continued to represent the prosecution, and on this occasion Ms Hayne appeared for the appellant. It was common ground that the confiscation proceedings could not be completed that day, and in any event the appellant wanted Mr Heimler, his original counsel, to represent him for the purpose of confiscation and sentence. The recorder therefore had to consider a further postponement or adjournment, and, in that connection, whether there were exceptional circumstances which entitled him to go beyond the period of six months from the date of conviction. In a ruling given that day, he concluded that there were. It appears from that ruling that the recorder considered the court to be acting under the 1988 Act as amended by POCA 1995. He said that in July he had determined that it was appropriate for there to be a confiscation enquiry, and that he had accordingly “adjourned” the case for such an enquiry as there was no doubt that the appellant had benefited to some extent. The 30 bank accounts still needed investigation. He concluded the circumstances to be exceptional and adjourned the proceedings to 12 November 2004. 40. Subject to the submission that the proceedings as a whole were incompetent in the absence of a prosecutor’s notice under section 72(1), and that it was too late to rectify that omission after the six months period had expired, no complaint is made about the recorder’s finding of exceptional circumstances. 41. On 15 October 2004 there was a hearing before HHJ Madge to adjourn the 12 November fixture at the appellant’s request. The appellant was represented by Mr Heimler, who explained that there had been delay in the obtaining of legal aid for a forensic accountant. Mr Heimler flagged up a possible argument as to jurisdiction, telling the judge that the confiscation proceedings had not been initiated by the Crown but by the court, and that there had not been a postponement under the 1988 Act, but an adjournment at common law. In due course, on 22 November 2004 the recorder gave further directions including a new fixture date for 6/7 January 2005. 42. On 3 December 2004 the appellant served a forensic accountant’s report prepared by Mr Faull. His main points were concerned with (1) the causal connection between the offending and the pecuniary advantage asserted of the rise in the capital values of the houses; and (2) the failure of the prosecutor’s statement to take account of the cost of mortgage payments. As to the latter, he estimated that a total mortgage debt of £342,850 would have been costing the appellant some £1,571 per month (at an average of 5.5%); as to the former, he observed that there were sources of income available to the appellant and his wife other than the monthly value (which he put at £461 per month) of his housing and tax benefits, such as the wife’s income (on a gross salary of over £20,000 per annum) and rental income and other benefits, such as incapacity benefit. His submission was that if such other income enabled the appellant to maintain his mortgage payments, then the capital appreciation of the appellant’s houses over the relevant period could not be connected with his offending; and that in any event, the cost of ownership of the property in the form of mortgage payments should be debited from any rise in the value of that property. In an addendum to that report, dated 5 January 2005, Mr Faull made two concessions. The first was that there might be a causal link between the offending and rental income received, albeit he submitted that that link operated only in respect of one house. However, he failed to acknowledge the consequential relevance of the importance of such rental income in support of the maintenance of the mortgage payments. The second concession was that the cost of mortgage payments could not be taken into account as a debit from any benefit obtained. As stated above (at para 12), he conceded a rental income benefit in total of only £34,608.03. The first judgment, on jurisdiction 43. On 6 January 2005 the matter came back before the recorder for argument and decision. On behalf of the appellant it was argued that the court lacked jurisdiction because there had been no written notice from the prosecutor for the purposes of the 1988 Act and it was now too late, after the six months from the date of conviction had expired, for such a notice to be served (as it had been that day). 44. In his first judgment during that hearing the recorder rejected that submission. He acknowledged that, as had at last become clear, the 1988 Act unamended by POCA 1995 was the relevant regime; that his own intervention had originally triggered an enquiry for the purposes of confiscation proceedings; and that it was only under the POCA 1995 amendments that the court could itself initiate a confiscation hearing. Nevertheless, he considered that he had had power under section 72A to postpone the proceedings to enable enquiries to be made, even in the absence of a minimum amount notice. Such a notice was only required ultimately as a condition of his power to make a confiscation order (see section 72), and the notice had now been served. In any event, there had never been any dispute that the appellant had benefited by more than £10,000. The second judgment, on benefit 45. The recorder later that day gave a second judgment on the subject matter of benefit. As stated above, he found a primary benefit in the sum of the £49,000, and further benefit by way of pecuniary advantages to be found in rental income and the increase in value of the Conifer Gardens, Stag Lane and Frithwood Crescent properties. He recognised the issue as to the need for a causal connection between the offending and that income and increase in value, but he made detailed findings that the offending had enabled the appellant to obtain rental income from his own property at Conifer Gardens, that that income had enabled him to make mortgage payments which he would otherwise have been unable to pay, and thus to save that property from being repossessed, and/or upon the successful sale of that property to enable him to purchase further properties, which he was thus in turn in a position to rent out. Thus the renting out of Conifer Gardens had saved that house from repossession; when it was sold, it generated a substantial equity, which enabled him to purchase Stag Lane; the increase in the value of Stag Lane enabled him in due course to take out a further mortgage on it to help finance the purchase of Frithwood Crescent; and in the meantime he had benefited from rental income from all three properties. He found the total benefit figure to be £369,740.97. The third judgment, on realisable property 46. The recorder dealt with the subject of realisable property in a third judgment. As stated above, he found that the appellant had a half-share in Pendle Road and that the June 2004 transfer of that half-share to his wife was a gift for the purposes of the Act and therefore caught by the relevant provisions relating to gifts: it remained to be counted as realisable property. As for Stag Lane and Frithwood Crescent, he rejected the attempts to say that the true ownership in them was wholly or in part in other people. He found the total figure for realisable property to be £317,943.15, made up entirely of the equity in those three houses save for an additional £10,000 in the appellant’s bank accounts. The fourth judgment on discretion 47. The recorder next turned to the question whether, in his discretion, he should make a confiscation order, and if so in what amount. He concluded that the facts of the case clearly indicated to him that he should: the appellant had over many years made cynical use of council accommodation, obtained at heavily discounted rates, to enable him to profit from not only rental income but also, with the help of further false representations to lending institutions, capital appreciation on his properties. 48. As for the amount of a confiscation order, the recorder, having pointed out that the upper limit was the benefit figure of £317,943.50, and having taken into account the £40,000 already provided to the council by way of compensation, resolved on a somewhat discounted figure of £250,000. The fifth judgment on sentence 49. In sentencing the appellant to a term of imprisonment of 9 months, the recorder made it clear that for the offending itself, he would have had in mind a sentence of 25 months on a conviction, or 20 months on the plea of guilty in the case. However, he took into account the appellant’s previous good character, his age (at 64), his medical condition, and the anxious time that the appellant had suffered over the extended course of the proceedings. He found that no delay was to be laid at the appellant’s door. That was in response to a submission from Ms Rose, then representing him, that back in June his expectations had been that compensation was all that the Crown were asking for, and that he would have been sentenced in the previous year. In the event, the judge reduced his sentence to one of only 9 months. The final ruling, a revised confiscation order 50. Finally, when the Crown came to revisit the question of compensation, because of the outstanding sum of £8,889.73 claimed by the council (£48,889.73 less the £40,000 already paid), the recorder indicated that he was unwilling to add to the appellant’s obligations. Therefore, in ordering further compensation to the council in the sum of £8,889.73, he revisited his confiscation order and revised it down by a round £10,000 to £240,000. This served to re-emphasise that, in selecting the final amount of his confiscation order, the recorder had taken full account of the compensation already paid or payable to the council and had in addition discounted the total benefit figure by some £28,000. The first ground: jurisdiction 51. We therefore turn to the appellant’s first ground of appeal, to the effect that the recorder lacked jurisdiction to make any confiscation order. In the written material before us, this ground was presented as the most significant of the arguments before the court, essentially on the basis which had been argued before the recorder. However, at the hearing of this appeal Mr Valios, while taking this ground first, was willing to accept that it was not his best point, and that the point that he really wished to stress on the facts of this case was that of unfairness (see the second ground below). 52. Thus Mr Valios accepted that even though the statute visualised a prosecutor’s section 72 notice as the trigger for confiscation proceedings under the 1988 Act, and he relied for these purposes on what Lord Woolf had said in Sekhon at para 8 (cited at para 17 above), he nevertheless acknowledged that the essential reasoning of that case (now reaffirmed by other authorities, see below) was to the effect that a timely prosecutor’s notice, although part of the procedure contemplated by the statute, was not essential to the court’s fundamental jurisdiction in entering upon confiscation proceedings: see Sekhon at paras 27/31 and the distinction there made between the court’s jurisdiction under section 71 and the procedural requirements dealt with under section 72. On the facts of this case a prosecutor’s notice in the terms of section 72(1) had been served on the Harrow crown court by at latest 6 January 2005, before the recorder made his confiscation order. Therefore the terms of section 72(1) were fulfilled and we do not have to decide whether the absence of any notice before the making of a confiscation order would have deprived the court of all jurisdiction, even in circumstances where everyone knows that, if a confiscation order is made, it can be made in the sum of at least £10,000. 53. Indeed, on the facts here it may well be the case, and we are inclined to think that it is, that the prosecutor’s statement dated 30 July 2004 was already a written notice which fulfilled all the requirements of section 72(1). That subsection does not stipulate for any particular form other than writing, and it was clear from the prosecutor’s statement that it appeared to the prosecutor that the court would, if it thought it right to do so, be able to make an order in at least the minimum amount of £10,000, since both the alleged benefit and the appellant’s alleged realisable assets vastly exceeded that sum. On that basis, all that happened thereafter was entirely within the contemplated procedure under section 72, and the only error was that the recorder thought that, because the amendments of POCA 1995 applied, he had power to initiate confiscation proceedings himself. It is true that that error appears to have persisted until 6 January 2005 and was shared by the prosecutor himself: but in the circumstances it had no substantive effect on anything, other than in galvanising the prosecution into action at the initial stages. After all, on 9 July 2004 it was already clear to everyone that, at the very least, the appellant had benefited directly to the tune of around £48,000 and was possessed of various properties of value, of which Pendle Road alone had an equity (even if shared with his wife, and even if the appellant’s interest had arguably now been transferred to her) greatly in excess of £10,000; moreover the appellant had brought to court a cheque in the sum of about £40,000 (see paras 30, 33/34 above). In the circumstances, even though there was no formal notice in writing from the prosecutor, it would have appeared to everyone, as it certainly appeared to Mr Connolly, counsel for the Crown on that day, that a confiscation order for the minimum of £10,000 could be made, if it seemed appropriate to the court to make one. Moreover, it would seem from section 72A(1)(b) that the court might be able to postpone the proceedings even for the purpose of “determining whether his benefit is at least the minimum amount”: although it might be argued that formally speaking even that presupposed a prosecutor’s notice, but one that may have led to some dispute. 54. In any event, on the facts of this case it is plain to us, and not strongly disputed by Mr Valios, that, despite the error made by the judge in thinking that he had power of his own initiative, in the absence of a prosecutor’s notice, to embark on confiscation proceedings, there was nothing which should lead us to conclude that that error by itself destroyed the court’s jurisdiction either to postpone sentence or to make a confiscation order on 6/7 January 2005. Mr Valios did not press any point which depended on the use of the term “adjourn” instead of “postpone”. There was no complaint that the postponement beyond the six months was wrongly made because exceptional circumstances were lacking. 55. Moreover, the pre-1995 need for a prosecutor’s notice was simply to protect the court (and defendants) from being overwhelmed by a multiplicity of wasteful confiscation proceedings where the prospects of making an order in a worthwhile amount were dim: see the general note by Professor Martin Wasik on section 1 of POCA 1995 in the publication of that Act before the court. 56. Since Sekhon , other decisions have emphasised the importance of the distinction between errors of procedure, which do not by themselves invalidate proceedings, and matters which undermine the court’s jurisdiction as a whole: see R v. Simpson [2003] EWCA Crim 1499 , [2004] QB 118 , R v. Soneji [2005] UKHL 49 , [2006] 1 AC 340 , and R v. Knights [2005] UKHL 50 , [2006] 1 AC 368 . In effect, the submission under this first ground seeks to resurrect the error of this court (my error) in R v Palmer (No1) [2002] EWCA Crim 2202 , [2003] 1 Cr App R (S) 112 , despite that decision being disapproved or overruled in the subsequent jurisprudence cited above. 57. For these reasons we dismiss this appeal on the ground of jurisdiction. The second ground: unfairness 58. For Mr Valios, this was the principal ground argued on behalf of the appellant. It does not figure at all in the appellant’s written notice of appeal. It was only introduced at the original hearing fixed for this appeal, which resulted in an adjournment and directions, on 20 June 2006. We are told that this court (Lord Justice Moses presiding) then extended leave to appeal for this fresh ground, that of unfairness or abuse of process. We have not been able to confirm that by reference to the partial transcript of the proceedings from that day, but Mr Connolly on behalf of the Crown does not dispute it. 59. This ground, as a separate basis of appeal, appears first to have been briefly raised in Ms Rose’s skeleton argument on behalf of the appellant dated 14 June 2006, albeit it also figured within the argument on jurisdiction. On 20 June 2006 this court granted the appellant representation by leading counsel, hence the entry on to the stage of Mr Valios. He then prepared a new skeleton argument dated 4 August 2006 which dealt with this new ground as follows: “Abuse of process, prejudice and/or Article 6 ECHR (i) It was an abuse of process to instigate and/or permit the Crown to seek confiscation at such a late stage, when the appellant and all parties had believed that, save for sentence in respect of the offence admitted, the Crown were seeking compensation of the actual loss of the local authority and sentence was expected to take place on 9 July 2004. (ii) The appellant in the belief at (i) above borrowed £40,000 towards repayment of the sum of £48,000 lost by the local authority in housing benefit and council tax and thereby suffered prejudice by reason of the Crown thereafter seeking confiscation at the Court’s suggestion. (iii) The appellant was prejudiced by reason of delay and the proceedings were in breach of article 6(1) of ECHR: sentence had been adjourned twice for pre-sentence report and an agreed figure for compensation and final disposition of the case was expected on 9 July 2004 and by reason of the learned recorder’s intervention and ‘instigation’ of confiscation proceedings on that later date the disposal of the appellant’s case was delayed for a further six months and he faced a new and unexpected investigation of his affairs and risk both as to financial consequence and imprisonment that he was not aware of at the time of his considering and entering his plea of guilty. (iv) The learned recorder failed to exercise his discretion under the 1988 Act properly or at all, consequently the appellant was prejudiced and/or there was an abuse of process and/or a breach of the said Convention; his remarks in the course of the hearing on 9 July 2004 showed that he was intent on making a confiscation order in a substantial sum and gave from the start the perception of unfairness. (v) Consequently the court…on appeal has jurisdiction to quash the confiscation order or reduce the same.” 60. In developing this ground before us, Mr Valios has emphasised different strands of the argument as follows. Most seriously, and going even beyond his skeleton argument, he has submitted that the recorder’s remarks on 9 July, cited above, demonstrate that, quite irrespective of his error in thinking that he had a right himself to initiate confiscation proceedings, he was determined to make an order, and in the highest possible amount. It was his intention to make an order, whatever the facts turned out to be. It was rather like lack of good faith in bringing a prosecution. Thus, any appearance of exercising a proper discretion at the hearing on 6/7 January 2005 was mere lip service: his mind was made up. Although the word bias, or even the appearance of bias, was not used, we think that this aspect of this ground amounted to a direct attack on the recorder’s judicial good faith. 61. Alternatively, Mr Valios emphasised a different aspect of unfairness, which he described as an abuse of process, consisting in the prosecution misleading the appellant into thinking that he would be sentenced and be made subject to a claim for compensation, but would not have to face confiscation proceedings. That, he submitted, was the prosecution’s attitude to the offence, as plainly shown by what had occurred up to and on 9 July 2004. But for the judge’s intervention, however legitimate his error as to his right to initiate might have been, especially in the light of the changes already effected by POCA 1995, the appellant would have been sentenced on 9 July and would never have had to face confiscation proceedings. In the result, however, the appellant’s legitimate expectations had been disappointed, and he had suffered prejudice by the delay in sentencing, by borrowing the £40,000, and by the anxiety involved in the confiscation proceedings themselves. Indeed, it was even suggested that the appellant had pleaded guilty on the basis that he would only have to face a compensation order. 62. In either event, Mr Valios submitted that there was unfairness in the process of the confiscation proceedings and a breach of article 6(1) of the European Convention on Human Rights. 63. In this connection Mr Valios relied on the following citations from the authorities. He referred in the specific context of confiscation orders to the acknowledgments by Lord Steyn, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood at paras 24, 42 and 80 of Soneji that the courts could remedy any undue prejudice arising from excessive delay or lack of good faith by means of the abuse of process jurisdiction and perhaps in other ways. Similarly, he referred to Lord Woolf’s remarks at paras 37 and 48 of Sekhon to the effect that the court could always ensure that, if justice demanded, a confiscation order procured in unfair circumstances could be quashed on appeal, when this court would look beyond technicalities to concentrate on the substance of what had occurred. More generally, he referred to R v. Bloomfield (1997) 1 Cr App R 135 as an example of how the abuse of process jurisdiction has been employed, albeit in a different context, to quash unfair process. However, he accepted that the recorder had never been requested to stay the proceedings for abuse or anything such; and indeed that no complaint of any kind was made to the judge save finally in the context of sentencing on 7 January 2005 (see at para 49 above). 64. In Bloomfield the defendant was charged with possession of a class A drug. At a plea and directions hearing the prosecution indicated to the defendant that it would offer no evidence as it accepted that the defendant had been the victim of a set-up. The judge was so told. Subsequently, following a change of prosecuting counsel, the defence was informed that the prosecution would continue. An application to stay for abuse was rejected, and the defendant pleaded guilty. His appeal was allowed. Lord Justice Staughton, giving the judgment of this court, referred to the Code for Crown Prosecutors for its provision that “People should be able to rely on decisions taken by the Crown Prosecution Service. Normally, if the Crown Prosecution Service tells a suspect or defendant that there will not be a prosecution, or that a prosecution has been stopped, that is the end of the matter and the case will not start again. But occasionally there are special reasons…” Lord Justice Staughton said that no special reasons had been shown to the court. He concluded (at 143): “Looking at the case in the round, it seems to us that this an unusual and special situation. The decision to defer the trial on December 20 was taken for the benefit of the prosecution in order that they would not be embarrassed when it was said in court that no evidence was being offered. The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative. It was made coram judice , in the presence of the judge. It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was.” 65. However, he added – “we are not seeking to establish any precedent or any general principle in regard to abuse of process. We simply find that in the exceptional circumstances of this case an injustice was done to this appellant.” 66. On behalf of the Crown, Mr Connolly on the other hand submitted that at the time of the early hearings in 2004 the prosecution were still in the dark as to the true factual position. Meanwhile, they said nothing to the appellant to mislead him. In any event, it could only have been after the hearing of 4 June 2004 that the appellant could have formed any view that matters would proceed without confiscation proceedings – and within the space of five weeks, the appellant knew better. During the whole of this time, only the appellant knew his true financial situation – and he was presenting himself to the court, through his pre-sentence report interview, as impoverished, scrabbling to raise the £33,000 brought to court on 4 June from friends and relations (in fact it was borrowed from commercial lenders). On 20 June 2004, despite what the appellant now said, he had sought to protect himself and/or his wife by transferring his half-interest in Pendle Road to her; and that was not the only purported protective transfer. It was unlikely that he had not received advice from his legal representatives about the possibility of confiscation proceedings – even if it looked for a while that he might, if he kept his head down, get away with only a compensation order against him. There was no evidence that he had been advised that he had nothing to worry about in the shape of confiscation of his benefit through his realisable property. In any case, on 9 July 2004 he was still protesting financial embarrassment while facing a compensation claim in the sum of the £49,000 as a minimum: and any financial investigation would have opened up the can of worms which was already coming into view as the facts were opened to the court that day. The judge was entitled to ask the prosecution to get at the truth of the matter. 67. It may be, Mr Connolly continued, that the judge had erred in thinking that he could initiate confiscation proceedings himself: but that did not mean that he had failed to exercise his discretion. Patently, he had done so at the hearing in January 2005. The material on which he had done so fully justified his order, and in any event this court could exercise its own discretion, if necessary. A fortiori, there was nothing to support a case that the recorder had been in judicial bad faith or paying mere lip service to the need for a properly considered exercise of his jurisdiction. There was no abuse of process. As for Bloomfield , that was a special and different case. There had been an express representation made there, not only to the defendant but also to the court. The calling of no evidence was entirely a matter for the prosecution. In the absence of a prosecution, no question could arise as to any trial of the defendant’s guilt. In the present case, however, what the court was concerned with was the sentencing process of a defendant whose guilt had been established. That process had to be gone through, and it was primarily for the court and not the prosecution. Although the 1988 Act contemplated that a prosecution notice would be the trigger for confiscation proceedings, the substance of that was only in the need for the £10,000 minimum. Finally, if nevertheless there was any unfairness at all, a remedy could be given in the court’s discretion by discounting to some degree the recorder’s order. 68. Over the whole breadth of this ground our mind has wavered somewhat, but of one thing we are sure: that there was no lack of judicial good faith. On the basis of what the judge was told and what he read in his papers for the purposes of the 9 July 2004 hearing, and on the basis that he considered himself, albeit in error, to be sentencing under the 1995 regime, the judge was entitled to be concerned that the prosecutor appeared so far to have ignored the large-scale profiteering that lay behind the abuse of housing and council tax benefit. For the best part of a decade the appellant had falsely presented himself to the council as indigent: he received emergency housing assistance, and secured a five-bedroom house which must have been much in demand by those truly in need. In the meantime, and from the very beginning of his offending, he had owned two houses. He was subsequently to sell one, at a substantial profit, and buy two further houses. His rental income supported the mortgages, so that over the years he had used his offending not only to secure housing and housing benefit to which he was not entitled, but to raise income with which to support and create the opportunity to make capital appreciation out of the growing value of his properties. 69. As for the recorder, despite the strength of his language on 9 July, as to which more below, his subsequent conduct of the confiscation hearings demonstrates that he gave careful consideration to the matters which were then put before him. We say this in any event, albeit subject to the points which are raised before us under the third and fourth grounds of this appeal as to the recorder’s findings on benefit and realisable property. Thus the recorder (a) declined to give effect to the claim to compensation for more than the £49,000; (b) found both benefit and realisable property in total sums less than those put forward in the prosecutor’s statements; (c) deducted the £49,000 paid or payable to the council as compensation from any sum payable under the confiscation order; (d) discounted the maximum sum in which he could have ordered confiscation by a further £28,000; (e) gave to the appellant a merciful sentence of only 9 months, which expressly took account of the submissions made on his behalf concerning inter alia the delay and anxiety involved in the protracted confiscation proceedings. In sum, we think that the submission calling in question a lack of judicial good faith should not have been made. 70. When, however, we turn to the broader submission of unfairness, we conclude on balance that Mr Valios’s submissions are justified. We would not say that there was an abuse of process in the sense in which that term has been used, where applicable, to require a stay or quashing of proceedings. We think that this case is not like Bloomfield , essentially for the reasons put forward in Mr Connolly’s submissions: the recorder here was already seized of sentencing, for an admitted crime. There was never any application to stay the confiscation proceedings; the delays were at each stage accepted by the appellant; and any prejudice he suffered, and we acknowledge that there was some, was inherent in the process itself. We do not, moreover, acknowledge any prejudice by reason of his plea of guilt, nor by reason of his borrowing of funds for the purposes of compensation: for there is nothing whatsoever to suggest that his plea was based on any holding out to the effect that there would be no confiscation proceedings, and his attempts to improve his position for the purposes of sentencing by offering compensation (out of his ill-gotten gains) were tactically understandable and also ultimately assisted him. Moreover, we agree that it was likely that he had been advised by his legal representatives of the dangers of confiscation proceedings. 71. Nevertheless, we think that the prosecution did allow the appellant to think for a while, between 2 April and 9 July 2004, that he would not be pursued for confiscation purposes, only for compensation. We agree that there was no open representation to that effect, but it was implicit in the express mention of compensation without reference also to confiscation, and we think it possible that the implication would have been explained to him by his own legal representatives. 72. Moreover, and this is a matter of real concern to us, we think that the recorder’s remarks on 9 July 2004 were unfortunate. On the basis that he thought that he had the power to initiate confiscation proceedings himself, he had no need to put the matter as strongly as he did, even if he may not at that time have contemplated that he would be requested, by defence counsel herself, to reserve the matter to himself – as a recorder, he was not a permanent judicial member of Harrow crown court. On the true basis that he needed the prosecutor’s cooperation for confiscation proceedings, it was all the more unfortunate that he should have spoken so strongly in demanding that cooperation. The substance of the matter is that, although on the one hand the appellant thoroughly deserved to be required to open up his property dealings to scrutiny for the purposes of a confiscation enquiry, on the other hand but for the recorder’s intervention it seems likely that that enquiry would never have occurred. 73. In sum, while rejecting any necessity to say that the confiscation proceedings should never have taken place, we conclude that there was an element of unfairness in what happened on 9 July 2004. We therefore think that there is a real need to look carefully at the outcome of those proceedings, to enquire whether there is any suggestion, despite what we have said above about the recorder’s apparent exercise of his discretion, of anything going amiss in his findings, and also for the purpose of considering whether, in the exercise of our own discretion, some remedy for the consequential breach of article 6(1) should be granted to the appellant. First, however, it will be necessary to consider the third and fourth grounds of appeal. The third ground of appeal: benefit obtained 74. Mr Valios’s submission under this heading was limited to the complaint that the recorder’s finding of a causal connection between offending and the increase in capital value of the properties was not proven, in particular in relation to Frithwood Crescent. It appears to have been contemplated by the recorder that this last acquired property was “a different creature to the earlier properties”. This was apparently because it was bought with the aid of a further mortgage on Stag Lane, which provided the funds for the deposit of £7,750. However, in our judgment there was no difference in principle between the three properties, even if the causal connection became somewhat weaker over the appellant’s series of purchases. Conifer Gardens’ mortgage was directly supported by the rental income the appellant was able to derive from it as a result of obtaining accommodation from the council at a discounted rental. The subsequent sale of Conifer Gardens provided capital for the purchase of Stag Lane, which was likewise rented out; and the rise in the value of Stag Lane allowed for the further borrowings which supported the purchase of Frithwood Crescent. The only difference, we suppose, was that while the council accommodation directly freed one house for the opportunity of rental income it did not do the same for two. However, without the success which the offence allowed the appellant to make of Conifer Gardens and Stag Lane, he would never have been able to purchase Frithwood Crescent. We think that the recorder was fully justified in finding the necessary causal connection, as to which the statute does not lay down a demanding test: see sections 71(5) and 102(5). 75. There is a different point, however, from that which Mr Valios has presented on this appeal, which relates to the mortgage payments. Should Mr Faull have conceded that the mortgage payments need not be taken into account for the purpose of computing benefit? Although this point was conceded before the recorder, and not raised as a ground of appeal here, our concern about the fairness of the proceedings under the second ground has led us to look at this issue. Indeed, on behalf of the Crown, Mr Connolly was inclined to concede himself that the mortgage payments should have been taken into account. 76. In the absence of adversarial argument, we would be inclined to be cautious. We do not hold that the mortgage payments ought to have been taken into account for the purpose of computing benefit. In any event, the matter was conceded before the recorder. We do consider, however, that the point is capable of debate. The relevant increase in value of the properties was found to be a pecuniary advantage under section 71(5). For these purposes the statute requires the pecuniary advantage to be valued (“as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage”). What is the value of the pecuniary advantage of an increase in the value of a property the mortgage of which has been paid with the help of rental income which the offence in question has facilitated and which has itself been accounted as a benefit under the statute? It seems to us that it is arguable that the cost of preserving the mortgage and thus possession of the house in that way should be brought into account. It is not as though the pecuniary advantage here in question is a direct benefit, as in R v. Smith [2001] 1 WLR 54 (HL), or in the way in which the housing and council tax rebates were. In Smith the pecuniary advantage was obtained once and for all at the moment of importation of the smuggled cigarettes and constituted the benefit obtained as a direct result of the criminal offence; whereas in the present case the value of the pecuniary advantage is being taken at the time of the confiscation order itself and represents the proceeds of prima facie legitimate activity, viz investing in property. If the mortgage payments had not been regularly paid but had accumulated on the mortgage account, the value of the equity would clearly have been struck after the mortgage liability had been taken into account. 77. However, whatever be the correct view of that question, the amount of a confiscation order under the 1988 Act is ultimately a matter for the court’s discretion: see section 71(1) (“such sum as the court thinks fit”). It would have been open to the recorder, even though the value of the pecuniary advantage had been conceded to have been in the full amount of the then current equity in the relevant properties, to have modelled his confiscation order so as to take into account the financial cost of the mortgages which had, by a process of gearing, produced the capital appreciation in question. However, the point does not appear to have been made to the recorder. We bear these matters in mind, but in the meantime visit the fourth ground of appeal. The fourth ground of appeal: realisable property 78. The question of realisable property raises different issues. For this purpose, the fact of the houses’ current equity value at the time of the confiscation order was all that mattered, so far as value was concerned. That represented “the amount that might be realised” under sections 71(6)(b) and 74(3). Under this heading, however, different questions might arise, namely whether the property in question belongs to the defendant or another. 79. In this connection, Mr Valios’s submissions did not seek to revisit the disputes debated before the recorder, such as whether or not the appellant’s half interest in Pendle Road which he had transferred to his wife in June 2004 could be treated as “a gift caught by this Part of this Act” for the purpose of section 74 of the 1988 Act and thus part of what the Act calls realisable property (see section 74(1)), or whether or not Stag Lane or Frithwood Crescent were partly or wholly owned by other persons. His point was rather concentrated on the judge’s unwillingness, in the exercise of his ultimate discretion, to discount the value of the appellant’s realisable assets so as (a) to make it possible for her to retain her home at Pendle Road in which she had in any event a half interest, and (b) to take into account her general prospective interest in 50% of her husband’s property, as being property brought into the marriage and effectively shared, in part because of her role in contributing towards the mortgage outgoings by means of her own income. For these purposes Mr Valios referred in his skeleton argument, but not in his oral submissions, to some of the jurisprudence in recent years relating to the court’s concern to balance the public interest in stripping offenders of the proceeds of their crime together with a recognition of the wife’s and wider family’s interest in the preservation of a matrimonial home. 80. We were not impressed, however, with this submission. There was in effect no evidence before the court as to Mrs Nwangoro’s position, and she did not give evidence in the confiscation proceedings. Although sometimes referred to as the appellant’s ex-wife, it appears that she and the appellant are separated rather than divorced. It is said that the separation occurred in 1997 and that that was after the purchase of Conifer Gardens, but that is not established by any documentary evidence. In any event, Stag Lane and Frithwood Crescent were both bought after that separation. Her half-interest in Pendle Road was taken into account, so that only half of the equity in that property counted towards the realisable property assessed by the recorder. To the extent that she claims any further interest, and the claim sketched out by Mr Valios was somewhat unfocused, she is entitled to advance that claim in the High Court: see In re Norris [2001] UKHL 34 , [2001] 1 WLR 1388 and Customs and Excise Commissioners v. A [2002] EWCA Civ 1039 , [2003] Fam 55 . Remedy and discretion 81. We revert therefore, in the light of the matters discussed under the third and fourth grounds of appeal, to our conclusion as to the consequences for the appellant of the unfairness which we have found to have occurred in discussing his second ground of appeal. 82. We conclude that that element of unfairness can and should be remedied by discounting the final amount in which the recorder made his confiscation order. In any event that was essentially a matter in the recorder’s discretion, and now in ours. For the reasons which we have discussed above, we think that the judge was careful in the exercise of his ultimate discretion, and it may be that he cannot be criticised, in the absence of a direct submission to the appropriate effect, in not considering whether he should make any allowance for the cost to the appellant of maintaining his mortgage borrowings on the three houses through which he obtained both rental income and capital appreciation. In any event, the recorder made an unallocated allowance both in respect of the compensation payments and in respect of a further £28,000. Moreover, he expressly took account of the effect of delay and anxiety on the appellant in subsequently sentencing him to only 9 months imprisonment. In all these circumstances, we think that the appellant can have no complaint if we provide him with a remedy for the breach of article 6(1) which we have found to have occurred by discounting the amount of his confiscation order by a further £40,000 so as to arrive at a substituted confiscation order in the sum of £200,000. The effect is that, whereas the appellant remains liable to disgorge the capital appreciation which he has managed to secure by means of his offending, he is spared the double effect of repaying in addition the great majority (£68,000 out of £81,000) of the rental income he secured on those properties. That probably fairly reflects, for our current purposes, the mortgage cost or a large part of it of earning that income. Conclusion 83. For these reasons, we would allow the appeal to the extent indicated above, by quashing the confiscation order made by the recorder in the sum of £240,000, and substituting for it a new order in the amount of £200,000. Subject to any further argument which might be addressed to us, we would be disposed to say that the period of imprisonment in default, which under the quashed order was 35 months, should instead be a period of 2 years and 3 months.

2006_12_05-980.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/3061/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/3061

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[2005] EWCA Crim 1366

EWCA_Crim_1366

supreme_court

Case No: 200402740 Neutral Citation Number: [2005] EWCA Crim 1366 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 26 May 2005 Before: LORD JUSTICE GAGE MR JUSTICE CURTIS and MR JUSTICE POOLE - - - - - - - - - - - - - - - - - - - - - Between: R - v - Hounsham & others - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave, 190 Fleet Street London EC4A 2AG Tel No: 0

Case No: 200402740 Neutral Citation Number: [2005] EWCA Crim 1366 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 26 May 2005 Before: LORD JUSTICE GAGE MR JUSTICE CURTIS and MR JUSTICE POOLE - - - - - - - - - - - - - - - - - - - - - Between: R - v - Hounsham & others - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Michael Butt of counsel and Mr Philip Warren of counsel for the Crown Mr Richard Germain of counsel for Robin Edward Hounsham Mr Lee Karu of counsel for Richard Mayes Mr Russell Pyne of counsel for Michael George Blake - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Gage: 1. On 2 April 2004 at the Portsmouth Crown Court, on an indictment containing nine counts, Robin Edward Hounsham, Richard Mayes and Michael George Blake were convicted of counts of conspiracy to defraud. Hounsham was convicted of counts 1, 3, 4, 5 and 8, which were all counts of conspiracy to defraud. Mayes was convicted of counts 1, 5, 7, and 8, also conspiracies to defraud. Blake was convicted of a single count of conspiracy to defraud, count 3. 2. On 28 May 2004 they were sentenced as follows: Hounsham to 4 years imprisonment on count 1 and 18 months imprisonment concurrent on counts 3, 4, 5 and 8. A confiscation order was made against him in the sum of £5768. Mayes was sentenced to 3½ years on count 1 and 18 months concurrent on each of counts 5, 7 and 8. In his case a confiscation order was made in the sum of £12000. Blake was sentenced to 12 months imprisonment on count 3 and, in his case, a confiscation order of £2065 was made. 3. Six other co-accused were convicted of conspiracies to defraud and four others acquitted. 4. Hounsham, Mayes and Blake now appeal with leave of the single judge. 5. The prosecution arose out of alleged “staged” road traffic accidents which were the basis for fraudulent claims against various insurance companies. The principal grounds of appeal centre on admitted payments by insurance companies to the police towards the costs of the police investigations. The Background 6. In summary, the prosecution case was that three car dealers, Hounsham, Mayes and another man, Andrew Baker (acquitted by the jury), participated in a dishonest scheme involving the acquisition of vehicles which were used in “staged” collisions. The damaged vehicles were then the subject of inflated claims made to insurance companies. Count 1 alleged an over-arching conspiracy against Hounsham, Mayes and Baker. All the other co-accused, including Blake, were charged with individual conspiracies in respect of one or more of the staged crashes and subsequent false claims on insurers. It was alleged in count 1 that there was an agreement between Hounsham, Mayes and Baker to defraud motor insurers by making false insurance claims in respect of traffic accidents which they arranged. The prosecution relied on a number of features which it alleged, when taken together, suggested fraud. 7. It was alleged that the dishonest scheme involved the following features. i) Hounsham, Mayes and Baker acted in various combinations to acquire prestige cars with a high mileage which were being sold cheaply. The cars were then “clocked”; that is the mileage shown on the odometer was substantially reduced. ii) The prestige cars were registered and a MOT carried out noting the reduced mileage. iii) Ordinary cars of low value were also acquired and “clocked” in preparation for the staged collisions. iv) False invoices were created to show inflated purchase prices which could later be sent to the insurance companies to support large claims. v) Drivers, “stooges”, were then “sold” one of the ordinary vehicles and a day arranged for an “accident” to take place. vi) The staged collisions took place in dark and remote places. The accidents were so arranged that both vehicles were write-offs. A local salvage company was instructed to recover the vehicles. vii) The “stooges” immediately admitted liability and submitted third-party claims to their insurance companies. By this method insurance companies were deceived into paying out third-party claims for the total loss, at an inflated value, of the prestige cars, and the costs of car hire, in addition to the write-off value of the “stooges” own insured vehicle. In some cases false claims for personal injuries were also included. 8. Count 3 alleged against Hounsham and Blake a conspiracy to defraud the Royal Sun Alliance in respect of an accident which occurred on 11 June 1999. The evidence in respect of this conspiracy provides an example of conspiracies alleged in the other counts. Documents showed that on 1 June 1999 Target Cars, a company owned by Hounsham, was registered as the keeper of a Toyota MR2. Records showed that in the previous July it had been sold for £2000 and had a recorded mileage of 138,000. On the same date as the Toyota was registered, Blake was registered as the keeper of a Peugeot 205 which had been purchased from a car auction by Hounsham in January 1999 for £600. The mileage recorded, at the date of purchase from the car auction, was 92,647. 9. Two weeks later, Hounsham submitted a third-party claim to Blake’s insurers, the Royal Sun Alliance, claiming that on 11 June 1999 his Toyota had been involved in a collision with the Peugeot which, at the time, was driven by Blake. The claim stated that the accident had occurred at about 10.00 – 10.30pm in Adgestone Lane. There were no witnesses and the police were not called. 10. The Toyota was submitted to motor engineers, Reynolds Parkhurst, for examination. Reynolds Parkhurst considered it to be a category B write-off. In evidence, David Pankhurst explained that the vehicle should be broken up for spares because its assessed market value of £3,300 was less than the cost of repair. There was evidence to suggest that the car had been clocked because by this stage the mileage was recorded as 69,817. 11. Hounsham was paid the value of the Toyota, namely £3,300, less salvage value of £500, which he retained. He was also paid £987 for car hire and transport expenses. Blake was paid £2,415 for the total loss of the Peugeot. In total the Royal Sun Alliance paid out £6,202 in respect of this claim. 12. In respect of some of the alleged conspiracies, there was expert evidence from a forensic scientist and a consultant engineer who had examined the road traffic accident. The purpose of this evidence was to cast doubt on the authenticity of the crashes. At interview, Hounsham and Blake answered all questions asked of them and denied the alleged offences. Mayes declined to answer any question. 13. Hounsham gave evidence and denied that he had been involved in a conspiracy with Mayes and Baker. He also denied being involved in a conspiracy with Blake or any other defendant. Mayes did not give evidence. Blake gave evidence. He denied that he was involved in any conspiracy to defraud insurers. His case was that the accident, in which he had been involved, was not staged. He described the accident and agreed that he had received £1,650 for the wrecked Peugeot. For the purposes of this appeal it is unnecessary to give any further detail in respect of the prosecution case and the respective cases of the appellants. The grounds of appeal 14. Towards the end of the prosecution’s case, in circumstances that we shall outline in greater detail later in this judgment, it was disclosed to the defence that three of the insurance companies which had paid out on claims made by one or other of the defendants, had paid sums to the Hampshire Police Force investigating officer, Police Sergeant Wade, to assist in funding the “arrest” stage of the investigation. Arising out of this disclosure the appellants sought further disclosure and, in due course, applied for the proceedings to be stayed as an abuse of the process of the court. The first two grounds of appeal, common to all three appellants, focus on the judge’s refusal to stay the proceedings as an abuse of process. A third ground is raised by Hounsham and Mayes. This ground is based on the inadvertent admission of evidence of two previous convictions of Mayes as a result of which both Mayes and Hounsham applied for the jury to be discharged. Each contends that the judge was wrong to refuse that application. The background to the first two grounds of appeal 15. In the course of giving evidence in respect of count 9, Paul Whittle, a representative of AMP Pearl Assurance (Pearl Assurance) was called to give evidence. It became apparent that the insurance file produced by him included communications between PS Wade and the Pearl Assurance. The correspondence suggested that the insurance company had been approached to fund the arrest and interview phase of the police investigations. These documents had not previously been disclosed by the prosecution and prosecuting counsel was unaware of their existence. 16. Not surprisingly, this disclosure took all counsel by surprise. Defence counsel asked for full disclosure of all material relevant to payments made by insurance companies to the Hampshire Constabulary. In the course of submissions to the judge it was argued that the prosecution should be directed to approach the insurers involved with the claims, the subject of the indictment, in order to obtain disclosure of any further records that might be in their possession. The judge acceded to this application insofar as it related to the indictment claims. 17. As a result of this ruling various documents came to light. The documents showed that on 30 May 2002 PS Wade wrote to the Association of British Insurers outlining the nature of the police investigations and seeking advice and “…assistance to ascertain whether the insurance companies involved would be prepared to assist the investigation by providing financial assistance”. There is a dispute as to whether it was the Association of British Insurers who had approached PS Wade first with this suggestion or whether PS Wade first approached the Association. The judge made no finding on this issue and in our judgment it was unnecessary for him to do so. PS Wade’s evidence was that before writing this letter he informed his superior officer, Detective Inspector Merrett, who, in turn, sought advice from “HQ”. In the result, PS Wade wrote to all save one of the insurance companies involved inviting them to help fund a stage of the investigation. In a letter to Paul Whittle dated 3 July 2002 Mr Wade wrote: “As we are at quite a late stage in the investigation we have not got much time to carry out all the enquiries. Therefore, if you would like us to add this “accident” to our operation, I would ask that your company provide us with the following as a matter of urgency, CONFIRM that you do not wish us to pursue the matter any further. 1. The original claim file and ALL associated papers. 2. A Section 9 witness statement which produces each page of the file and explains fully each page and a procedure that was followed for the claim. A total cost to your company. Exhibit labels signed for each page. (help available from us if needed.) The fact that your company paid out the claim and therefore believed it to be “real”, and the fact that if the claim were bogus that your company had been deceived and had it known, would never have paid out. 3. A contact point for immediate attention to any further enquiries. 4. Confirmation whether your company is willing to assist in the financing of our “arrest” phase of the operation. Direct lines, RSA, Norwich Union and Provident have done so.” This letter is reasonably representative of letters addressed to the other insurance companies. In response to similar letters dated 26 June 2002, Direct Line Insurance plc “…unconditionally provided the sum of £1,500 to assist with investigation costs”; the Royal Sun Alliance Insurance plc provided £2,000; and the Norwich Union Insurance Limited £1,000. Three other insurance companies, of whom the Pearl Insurance was one, declined to make any contribution; and a fourth was not approached. 18. At trial counts 3, 5, 7, and 8 involved allegations of false claims made on insurance policies issued by the three companies which had made a financial contribution. Counts 2, 4, 6 and 9 concerned alleged false claims made on policies issued by companies which made no financial contribution. Another insurance company the Zenith Insurance, made no contribution and an alleged false claim against it was not included on the indictment. 19. The trial started on 6 January 2004. As the prosecution was approaching the end of its case Mr Whittle was called to give evidence in respect of count 9. The production of his file gave rise to the events which we have just described. As we have indicated, the judge ordered disclosure of all insurance files involved in the alleged false claims and all other relevant documents related to the claims. He refused to order any wider disclosure. There followed a period of 10 days in the course of which documents were disclosed, evidence taken on a voire dire and submissions made by counsel for all defendants that the prosecution should be stayed on the ground of abuse of process. PS Wade and a CPS solicitor, John Locke, gave evidence for the prosecution; and a solicitor for one of the defendants, Mr Graham Squires, gave evidence on behalf of all defendants. In his ruling the judge made a number of important findings. First, he ruled that the payments were not prima facie illegal. Secondly, he found that the transactions did not involve an intention to corrupt. He accepted that PS Wade acted in good faith and that he was not acting corruptly. Thirdly, he found that the “modest payments” did not demand a stay of the indictment on that ground alone. Fourthly, he found that the letters sent by PS Wade to the insurance companies seeking financial contributions were relevant and should have been disclosed by the prosecution. Fifthly, he found that those documents and the financial contributions from the insurance companies were capable of undermining the prosecution case or assisting the defence and should have been disclosed as such. Sixthly, he found that PS Wade had not removed these documents from the unused and non-relevant unused material available to be inspected by defence solicitors. Further, in this connection, he found that Mr Squires and colleagues with him at the inspection must have overlooked these documents. Seventhly, he found that none of the defendants had suffered prejudice or been handicapped in their defence by the absence of any other material which might have been available to them if disclosure of the documents had been made at an earlier stage. In the circumstances, he refused the applications for a stay. 20. In this appeal, the prosecution now concede that in seeking and accepting payments from the insurance companies the police were acting ultra vires their statutory powers. In our judgment this was a sensible and realistic concession. The judge considered the statutory provisions of the Police Act 1996 . As we have already stated, he concluded that the payments were not prima facie illegal. He based this conclusion upon the fact that the 1996 Act did not contain any provision for making payments to the police illegal. However, PS Wade and DI Merrett are officers of the Hampshire Constabulary which is the police force for the area of the counties of Hampshire and the Isle of Wight (see s.101 (1) and schedule 1 of the 1996 Act ). The statutory body responsible for securing the maintenance of a police force and establishing the police fund to receive all receipts and fund all expenditure of the police force is the Police Authority for the relevant area (see s3, s6 and s14 of the 1996 Act ). These statutory provisions, when seen in the context of the whole of the 1996 Act , in our judgment, show that the concession made by the prosecution is correct and the judge’s conclusion was wrong . Grounds 1(a) and (b) 21. The principles upon which the court should act when deciding an application to stay a criminal trial as an abuse of process are not in dispute. The appellants and the respondent have directed attention to a number of authorities of which, for the purposes of these appeals, R v Horseferry Road Magistrate’s Court , ex parte Bennett [1994] 1AC 42 and R v Mullen 1999 2 CAR 143 are the most relevant. In ex parte Bennett Lord Griffiths, giving the leading opinion in the House of Lords stated: “Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it.” 22. The appellants rely on this statement by Lord Griffiths that, in cases where the conduct of the prosecuting authorities has been so extreme, it is unnecessary for the defence to show that the conduct of the defence has been prejudiced or that the defendant is unable to have a fair trial. In ex parte Bennett the defendant, a citizen of New Zealand who was alleged to have committed criminal offences in England, was traced to South Africa by the English police and forcibly returned to England. He alleged that he had been kidnapped from South Africa by South African and British police. 23. The above statement of principle is echoed in the judgment of the court in Mullen . In Mullen British authorities, in disregard of available extradition procedures, initiated and procured the unlawful deportation of the appellant from Zimbabwe to England. The appellant was charged and tried for conspiracy to cause explosions likely to endanger life or to cause serious injury to property. It was alleged that he was a member of the IRA. In 1990, following a trial at the Central Criminal Court, he was convicted and sentenced to 30 years imprisonment. Some years later the circumstances in which he was be deported to England came to light and his conviction was quashed by the Court of Appeal. In its judgment the court stated: “Furthermore, although abuse of process, unlike jurisdiction, is a matter calling for the exercise of discretion, it seems to us that Bennett -type abuse, where it would be offensive to justice and propriety to try the defendant at all, is different both from the type of abuse which renders a fair trial impossible and from all other cases where an exercise of judicial discretion is called for. It arises not from the relationship between the prosecution and the defendant, but from the relationship between the prosecution and the Court. It arises from the Court’s need to exercise control over executive involvement in the whole prosecution process, not limited to the trial itself.” 24. It is accepted by the appellants that it is for the defence to prove on a balance of probability that the conduct of the prosecuting authorities was so serious that the court, in the exercise of its discretion, should stay the proceedings. It is further accepted that it is only in exceptional circumstances that the court will exercise its discretion to stay proceedings (see Lord Bingham in A-G’s Ref (No 2 of 2001) (HL (E)) [2004] WLR 1 @ p13H. Ground 1(a) the funding issue 25. The appellants made two main submissions on this part of the appeal. First, it is submitted that the judge was wrong to find as a fact that PS Wade acted in good faith when soliciting and obtaining funds from the insurance companies. In this submission Mr Germain, on behalf of Hounsham, making submissions adopted by counsel for both Mayes and Blake, referred us to three factual matters which he submitted ought to have caused the judge to question P S Wade’s good faith. First, he directed attention to the correspondence between PS Wade and the insurance companies dated 26 June 2001. He referred to a sentence in the letter to the Provident Insurance in which PS Wade stated: “I have so far received positive replies from RSA and Direct Line to the sum of £1000 each and have yet to speak to others.” On the same date the equivalent letter to Direct Line Insurance included the following sentence: “I would therefore ask whether your company would consider providing funding to the sum of one thousand pounds.” 26. Mr Germain submits that Direct Line cannot have agreed to provide £1000 by 26 June because if it had done so PS Wade would not have needed to write the letter to it of that date. 27. Secondly, Mr Germain relied on a bill from a salvage company used by Pearl Assurance to recover crashed vehicles, which he suggested showed some form of sharp practice by the salvage company. No statement was taken from the proprietor of the salvage company which, submitted Mr Germain, demonstrated that PS Wade was protecting the Pearl Assurance from criticism. To the response that the Pearl Assurance made no financial contribution to the police, Mr Germain submitted that at the stage of the investigation when this bill matter came to light PS Wade was expecting a contribution from that insurance company. 28. Thirdly, Mr Germain argued that the judge made a factual error in his ruling when attributing to PS Wade an explanation for not prosecuting the appellants in respect of a crash involving the Zenith Insurance, a non-contributing insurer. Mr Germain submitted that the judge misunderstood the evidence in respect of this matter and that the failure to include this crash in the prosecution demonstrated that PS Wade favoured contributing insurance companies over those companies which did not contribute. 29. The second submission was the simple submission that, whatever factual errors the judge made, the conduct of PS Wade and his superiors of obtaining financial contributions towards the expenses of the prosecution was unlawful and so contrary to public policy that the court should not allow the prosecution to proceed, whether or not PS Wade had acted in good faith. Mr Germain, supported by counsel for both of the other appellants, pointed out the manifest dangers in a practice such as this. Mr Germain summed up his submission in the expression “He who pays the piper calls the tune”. Counsel on behalf of all the appellants submitted that this conduct by the prosecution was such that it amounted to exceptional circumstances which should have caused the judge to stay the proceedings whether or not it was possible for the appellants to have a fair trial. Conclusions on this ground 30. We have no hesitation in rejecting Mr Germain’s first main submissions. The judge heard extensive evidence from PS Wade who was subjected to detailed cross-examination. In our judgment the criticisms made of him, and of the judge’s finding in respect of him, are not made out. It is clear from the correspondence of 26 June 2001 and the surrounding documents that PS Wade had been in contact by telephone with representatives of the insurance companies before the letters of 26 June 2001 were written. We find it quite impossible from the documents to infer that PS Wade misled some insurance companies into making financial contributions; or favoured contributing companies over non-contributing companies; or, in his evidence, misled the judge. The judge heard all the evidence and was, in our judgment, in a far better position than this court to assess it. We can see no valid reason for rejecting his findings of fact. 31. There is considerably more force in the second submission of the appellants on this ground of appeal. The prosecution now accept that the police were acting ultra vires their powers when they accepted financial contributions towards the expense of the investigation from three insurance companies. In our judgment, soliciting by the police of funds from potential victims of fraud, or any other crime, quite apart from being ultra vires police powers, is a practice which is fraught with danger. It may compromise the essential independence and objectivity of the police when carrying out a criminal investigation. It might lead to police officers being selective as to which crimes to investigate and which not to investigate. It might lead to victims persuading a police investigating team to act partially. It might also lead to investigating officers carrying out a more thorough preparation of the evidence in a case of a “paying” victim; or a less careful preparation of the evidence in the case of a non-contributing victim. In short, it is a practice which, in our judgment, would soon lead to a loss of confidence in a police force’s ability to investigate crime objectively and impartially. 32. It has been unnecessary, in this case, to consider whether the police authority could sanction such activities pursuant to its powers under section 93 of the 1996 Act ( the power to accept gifts and loans ). Even assuming it does have such powers, we find it difficult to conceive of a situation where it would be sensible to exercise those powers in connection with criminal investigations. 33. However, in this case, the judge found that PS Wade acted in good faith. He consulted his superior officer, who in turn sought advice. Apart from the issue of disclosure, to which we turn next, none of the appellants’ counsel has been able to point to any prejudice caused by the acceptance of the total sum of £4,500 from three insurance companies. The conduct of the police complained of in this case, falls far short of the conduct which led the proceedings in ex parte Bennett to be stayed; and the court in Mullen to quash the conviction. On its own we are not persuaded that this conduct was such that the judge was wrong to refuse a stay . Ground 1 (b) disclosure 34. The appellants submit that the failure by the prosecution to disclose the funding documents as part of its primary disclosure and the inability of the defence, at the stage when the funding came to light, to obtain further disclosure also constituted such an abuse of process as should have caused the judge to stay the proceedings. 35. It is accepted by the prosecution that the judge’s finding that the funding documents were wrongly allocated to unused and non-relevant unused material at the disclosure stage of the proceedings is correct. 36. There are three aspects of this ground of appeal. First, it is submitted that PS Wade deliberately failed to disclose the letters sent to the insurance companies seeking financial contributions. Secondly, it is submitted that by the time these documents came to light it was too late for the defence to obtain further disclosure. The reason for this was that the insurance companies had by then either lost or got rid of much of the material. In this respect, it is submitted that PS Wade as the disclosure officer, failed to ensure at the earlier stage that the insurance companies disclosed all the relevant documents. Thirdly, it is submitted that the cumulative effect of the failures of disclosure coupled with the unlawful funding is sufficient to demonstrate an exceptional reason for the proceedings to be stayed. 37. The prosecution contend that the judge’s findings on the disclosure issue are not open to attack and that, for the reasons he gave, his ruling was correct. 38. Mr Germain made detailed submissions upon factual issues relating to disclosure. He referred the court to the MG6C list and to the evidence of PS Wade and Mr Locke, the CPS lawyer. The purpose of these submissions was to persuade the court that PS Wade had deliberately concealed the existence of the funding letters of 26 June 2001. The prosecution accepted that there was a degree of confusion about where these documents were actually to be found in the disclosure lists and documents. It was submitted that they were either in the MG6C or in a schedule of non-relevant unused material attached to that list. 39. In our judgment, the judge correctly concluded that, at the least, these documents ought to have been described as being in a category of material which might undermine the prosecution’s case or support the defence. It is clear from the Attorney-General’s guidelines that the attention of lawyers for the prosecution and the defence must be specifically drawn to this category of material. In this case, as the judge found, this was not done. However, the judge also found that the material was not deliberately withheld from the defence. It is clear that it was seen by Mr Locke. The judge accepted that, although it was not properly described, it was not deliberately removed from material which was available for the defence solicitors to inspect. He found that, unsurprisingly, Mr Squires, a defence solicitor, and his team overlooked the material. In our judgment that finding is one which this court cannot go behind. The judge heard the witnesses; we did not. 40. The judge went on to find that the prosecution’s failure to disclose this material was not “a foundation for a stay of the indictment”. We agree. In the course of the trial the material did come to light. The defence investigated the matter and the application for a stay followed. Had this material been disclosed earlier, no doubt, the application for a stay would have been made before or at the start of the trial. In our view, the judge was quite entitled to rule that this failure did not form a sufficient reason for staying the proceedings. 41. Next the judge ruled that the fact that PS Wade, in his capacity as disclosure officer, had failed to ensure that complete files had been obtained from the insurance companies, or preserved, was not a ground for staying the proceedings. Again, in our judgment, this ruling was correct. 42. It has to be borne in mind what the real issues were in this case. There was no dispute that claims had been made on insurance policies for damages arising out of road traffic accidents. In no case was it asserted on behalf of the defence that the sums claimed on the insurance policies were not paid. The claim forms were available as evidence. The real issues at trial were whether the accidents were genuine or staged; and whether the claims were genuine or fraudulent. In these circumstances, in our judgment, it is unrealistic to suppose that there may have been other documents held, at one stage, by the insurance companies which would have materially assisted the appellants. In answer to the direct question “What prejudice has your client suffered?” each counsel responded to this court that he could point to no prejudice other than that there might have been a document in existence which could have assisted his client. Although, as is clear, disclosure by the prosecution was not properly conducted we are quite satisfied that this fact provided no sufficient basis for a stay of the proceedings to be granted. 43. Finally we deal with the submission that the conduct of the prosecution and the failures of disclosure cumulatively are sufficient to fund a stay of the proceedings. Having concluded that each of the matters raised was not sufficient to found a stay, we conclude that, even when taken together, they do not amount to a sufficiently exceptional reason for a stay to be granted. The judge’s refusal to grant a stay was one taken in the exercise of his discretion. The fact that he held that the acceptance of financial assistance by the police was not unlawful, does not, in our judgment, in the circumstances of this case, vitiate the way he exercised his discretion. Even if it had done so, we would unhesitatingly have exercised our discretion in the same way. 44. In his summing up the judge gave the jury a clear direction as to how to deal with the funding issue. It was favourable to the appellants and no complaint is made in respect of it. In the circumstances, both grounds 1(a) and (b) fail. Ground 2 45. This ground applies only to Hounsham and Mayes. On 16 March 2003 the judge refused an application made by both appellants to discharge the jury on the ground that two previous convictions of Mayes had been inadvertently disclosed to the jury. The factual background is not in dispute. 46. On 23 January 2003 a statement made by Paul Adams was read to the jury. He produced as an exhibit, an insurance proposal made by Mayes relevant to count 2. It was agreed that the proposal form should be added to the jury core bundle. On the back of the proposal form was a reference to two previous convictions disclosed by Mayes to insurers, although they do not represent the full extent of his previous convictions. These convictions were for two offences committed in 1993; the first for an offence of obstructing the police for which he received a conditional discharge; the second an offence of handling for which he was sentenced to a community service order of 40 hours. 47. On 15 March 2003 it was discovered that the back of the form had been inadvertently included in the jury bundle. It was also discovered that three jurors had highlighted the previous convictions. The application to discharge the jury was made by counsel for Mayes on the basis that it was no longer possible for him to have a fair trial. Mr Germain for Hounsham, supported the application submitting that Hounsham’s case was so intimately connected with the case against and for Mayes that he also could not have a fair trial. 48. The judge refused both applications. After referring to the relevant authorities, including R v Weaver and Weaver [1963] 51CAR 77, he held that the error could be cured by an appropriate direction to the jury. In his summing-up he told the jury to put this matter out of their minds completely, saying that the convictions would not help them at all in their deliberations. No complaint is made about this direction. 49. The short submission made on behalf of Hounsham and Mayes is that the damage done by the disclosure of these convictions was irreparable and that the judge was bound to accede to the applications to discharge the jury. 50. We have been referred to all the relevant authorities on this topic. It is trite law that the decision of whether or not to discharge the jury in such circumstances is one for the trial judge to make in the exercise of his discretion. Here the judge took into account that the convictions were relatively trivial and had occurred some years ago. At the stage when the application was made the trial, involving twelve defendants, had been in progress for a little over two months. In our judgment, balancing all the factors, the judge cannot be said to have exercised his discretion wrongly. On the contrary, we are of the opinion that he was correct to refuse both applications. 51. In our opinion Hounsham cannot be said to have been prejudiced in any way by the fact that these convictions came before the jury. There was no evidence before the jury that he had previous convictions and it is unrealistic to think that he might have been tainted by Mayes’s convictions. As to Mayes, such prejudice as there was, in our judgment, was, by virtue of the relative triviality of the previous convictions, slender. It was completely cured by the judge’s direction. This ground of appeal also fails . Conclusion 52. In the circumstances, the appeals of all three appellants must be dismissed.

2005_05_26-522.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1366/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1366

1fbf004dec1c74a12b78bd9ef92c15dc485fa790b065f23c0f0626e6ef10f9ce

[2004] EWCA Crim 2844

EWCA_Crim_2844

crown_court

Case No: 200402371 C1 Neutral Citation Number: [2004] EWCA Crim 2844 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 22nd October 2004 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE FORBES HIS HONOUR JUDGE ROBERTS QC (Sitting as a judge of the CACD) - - - - - - - R E G I N A -v- JUSTIN HAYES - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fa

Case No: 200402371 C1 Neutral Citation Number: [2004] EWCA Crim 2844 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 22nd October 2004 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE FORBES HIS HONOUR JUDGE ROBERTS QC (Sitting as a judge of the CACD) - - - - - - - R E G I N A -v- JUSTIN HAYES - - - - - - - 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 PATTERSON appeared on behalf of the APPELLANT MR M SELFE appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: On 25th March of this year, in the Crown Court at Salisbury, before His Honour Judge Pryor QC, this appellant was convicted, by a majority of 10 to 2, of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against The Person Act 1861 . 2. On 17th May of this year the same judge sentenced the appellant to 2 years' imprisonment. We are bound to say that each member of this court considers that, on its face, 2 years' imprisonment is a surprisingly low sentence for a case of kicking or stamping to the head. 3. We do not, of course, have to consider an appeal or a reference with regard to the sentence and we are not aware of the mitigation that was put before the judge. 4. The appellant appeals against conviction by a certificate of the trial judge on the ground that: "There was a serious question as to whether I was right to allow cross-examination of the Defendant about a letter written by his Solicitor offering to plead guilty to actual bodily harm." 5. The appellant has added a further ground of appeal in that he seeks leave to call Stephanie McPhie, whose evidence was not called at the trial, and which he submits would demonstrate the unsafety of the conviction. This ground, however, requires leave to appeal to be granted before it can be advanced. 6. Turning then to the facts of the case. On 1st August 2003 the victim, David Barry, was socialising in the Bell at Amesbury. He was drunk. He had had about 7 pints and he could remember virtually nothing after he left the public house until he woke up in hospital. He suffered a four inch laceration to the left side of his forehead and grazing. His left eye was blackened and there was a one inch graze below that eye. He had a bruised and swollen jaw, bruising and grazing to his elbows, and a dead (meaning numbed) right thigh. The prosecution case was that the injuries were caused by kicking or stamping on the part of the appellant. 7. The defence was that there had been an incident between the two men but that the appellant had not caused the injuries. The victim had fallen over and must have hurt his head in the fall. 8. There were two eye witnesses, Terry McLachlan and Michael Irwin. They had been to Salisbury with the intention of seeing a film that evening, but they never got there. In the event they spent the evening drinking beer instead; up to about 9 bottles of Becks each. They were walking to the toilets in the car park at about half past 10 when they saw the victim apparently arguing with Stephanie McPhie about, amongst other things, the age of the victim's daughter. McPhie was pushing him with her hands and he appeared to be getting annoyed. 9. The appellant had a bottle in his hand and asked what was happening. Then the appellant started chasing the victim, throwing a bottle at him which smashed on the ground, and the next moment the victim was on his knees, holding on to a bar on a ramp in the car park. Then he was lying on the floor with, according to the Crown's case, the appellant kicking or stamping on him six or seven times. At one point he appeared to be standing on the victim's head. The appellant then ran back to the car park and someone rang for an ambulance. 10. After the event there was evidence that the appellant was telling people that he had stamped on the victim's face four or five times as if he was proud of it. Doctor Heppell said that the injury was consistent with kicking or stamping with a reasonable degree of force. There was grass, twigs and grit under the flap of skin at the site of the serious injury, which in his view must have been the result of a kick or a stamp. 11. The appellant was interviewed on 5th August. He referred to an incident between the victim and a girl. When he appeared to be about to hit her the appellant intervened to try and stop him, but he got punched on the nose which bled. The victim ran away but ran into something and fell over. A couple of seconds later the appellant said that he was bending over the victim and he said that he then turned and walked. As he did so he flicked his foot at him and called him a "prick". 12. He was asked in interview if his foot connected and he said this, "Yeah, yeah. I reckon in the sort of upper thigh, buttock, maybe sort of back area. Sort of lower back, upper thigh sort of area." Asked how hard it was he said, "Basically my foot travelled about 6" off the floor, it wasn't a swing, I didn't pull my leg back and kick him, it wasn't a kick it was more of a poke, my foot was on the floor, I just went like that, 'Prick'". Asked how much impact there was he replied, "Maybe enough to put a little bruise on you, but that's about it." Asked about his intention he said, "Oh I was frustrated by where I'd been banged on the nose and I was bleeding everywhere. I don't know whether you've ever been smacked in the nose before, you don't sort of say thanks and shake someone's hand for that do you, it sort of gets to you a little bit." 13. At the trial the appellant gave evidence in his own defence along the following lines. He had passed the victim, whom he had not known before that night, earlier in the evening, and the victim was aggressive, drunk and staggering. The appellant himself had only drunk a small quarter litre bottle of beer. He heard shouting and argument and saw a man and a girl arguing and thought he better keep his eye on the situation. He walked towards him though he accepted that the situation was none of his business. He saw the man grab the girl by the arm and go to punch her. It was at this point that he recognised Stephanie McPhie. He put his shoulder in between them saying, "No need for that mate", and the victim punched him in the face and immediately started running. 14. Without thinking about what he was doing he dropped the bottle he was holding and ran after him. He got halfway down the ramp and saw the victim flipping over and heard a sound as if he had been winded. He accepted that he flicked the body with his boot in the upper thigh or midriff area but said he then walked away. He denied any kicking. 15. The grounds of appeal in respect of which the certificate was given concern an application made by the Crown in cross-examination. The Crown sought leave to cross-examine the appellant about a letter his solicitors had written to the prosecution before the trial indicating that he would plead to assault occasioning actual bodily harm to the body but not the head of the victim. 16. We pause to observe that the offer of such a plea was entirely consistent with what the appellant had said when he was interviewed by the police. We have just read the relevant passages from his interview. Also, it is hardly surprising that the Crown were not interested in accepting a plea to assault occasioning actual bodily harm on the basis tendered because their case was that the appellant had kicked or stamped on the victim's head with the intention of causing him really serious injury, as the jury, in the event, found that he had. 17. When Mr Selfe, who appeared in the court below for the Crown, as he has appeared before us, cross-examined the appellant, he told Mr Selfe that he did not injure the victim. His interview answers were put to him and he continued to insist that he did not see any injury to the victim. Mr Selfe wished to put the solicitors' letter to the appellant. After argument the judge allowed him to do so. We have today been provided with the complete letter. There was, however, one passage only in which Mr Selfe was interested. It reads as follows: "Our client is therefore prepared to accept that he has caused actual bodily harm and is prepared to plead guilty to an offence contrary to Sec. 47 of the Offences against the Person Act 1861 . We would be grateful if you could inform us as to whether or not this is acceptable to the Crown." 18. The appellant's solicitors were the appellant's agents. They had ostensible authority to write such a letter and no competent solicitors would write such a letter without instructions to do so. Mr Patterson has not for a moment suggested that the solicitors were not acting entirely properly in writing this letter. The first question, in our judgment, is whether the letter was admissible. It plainly was to show that the appellant had said something that was inconsistent with the evidence that he had given. It was therefore admissible provided the judge concluded that there was no countervailing reason for not admitting it. 19. The letter, in our judgment, comes into just the same category of previous inconsistent statement as was what the appellant had said when he was interviewed. He was cross-examined by Mr Selfe about that before. But as if to emphasise the point, Mr Selfe wished to put the letter to him. The letter was relevant to the appellant's credibility. 20. The matter fell, eventually, to be considered by the judge because Mr Patterson does not suggest that the letter was not, on its face, admissible under the provisions of section 78 of PACE. The judge was referred to section 78 and we pick it up at page 8 of the transcript of the argument. The judge read it out: "'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.'" 21. The judge considered that balancing exercise and decided that the evidence should be admitted. Mr Patterson submits that the judge was wrong in reaching that conclusion, that it was, in the circumstances, unfair to admit the evidence, and the judge should have excluded it. When pressed on this point Mr Patterson was not really able to draw the court's attention to any way in which the admission of the evidence would be unfair to the defendant. It worked to his disadvantage certainly because it emphasised his lack of credibility. 22. Mr Patterson's argument was really driven back to this: that pre-trial negotiations about possible pleas of guilty often take place between the defence and the Crown, that such negotiations should not be discouraged by the court by taking the step of allowing something in those negotiations to be admitted in evidence, and that there is a general understanding that, for example, discussions between counsel about a possible plea would not be referred to before the jury at the trial. 23. In our judgment it is necessary to concentrate on the particular facts and circumstances of this case. We ask ourselves the question, first of all, is there any reason, in principle, why the letter should not be put to the appellant in cross-examination? The answer is that there is not because it was relevant to his credibility in just the same way that it may be relevant to a defendant's credibility to cross-examine him about details in his alibi notice when his evidence at the trial has turned out to be different. Likewise, there is no objection, in principle, to a defendant being cross-examined on what is contained in his defence statement when it becomes relevant to an issue at the trial. We cannot see that there was any unfairness to the defendant in the admission of this evidence in this case. 24. The appellant had told the police that he had kicked the victim and caused some injury in his leg region. That was entirely consistent with a plea of guilty to assault occasioning actual bodily harm which was what his solicitors offered on his behalf and on his instructions. When he backtracked in his evidence the Crown was entitled to draw the jury's attention to what he had said before. 25. In our view the judge was right to admit cross-examination on the letter. Because the letter itself never went before the jury as such as it was not adduced as part of the evidence. It was simply that the defendant was cross-examined upon it. 26. In any event, the cross-examination on the solicitors' letter was, in our judgment, of only marginal importance to the conviction because the prosecution had drawn the jury's attention to what had already been said by the appellant in the course of his interview. 27. Mr Patterson also takes the point that the jury was particularly interested in this letter because they asked a question about it after they had retired. The question for the jury was, "Please can we have a copy of the letter from Justin Hayes previous solicitors to find out what charge he was willing to plead guilty to". The judge had already made it clear that the letter was not part of the evidence and that therefore the jury could not see it, but he did remind them of the cross-examination on this point and gave the jury a very clear direction as to the limited relevance that it had in the trial because, of course, what the jury had to decide was whether the defendant was responsible for kicking or stamping on the victim's head. 28. We therefore have come to the conclusion that there is no substance in the ground of appeal in respect of which the certificate was given. 29. The second ground on which leave has thus far not been given relates to the evidence of Stephanie McPhie, who was not called at the trial, and whom Mr Patterson now seeks leave to call. The position with regard to her was this: shortly after the incident at which she had been present, according to a later video recorded interview, she said this: "On Friday 1st August I went to a friend's house in Solstice Rise, that is the home address of Laura Lyndley. I got there at about 10.30pm and left 1.30am on Saturday 2nd August. After leaving I came straight home, which is just around the corner. I am not aware of seeing any incident on my way home. I walked home on my own, arriving home at about 01.35am. I am prepared to attend court if necessary." 30. On 27th July of this year she made a further statement in which she said this: "At the time of the incident I was living with my Nan at 1 Bramley Way, Amesbury. "At about 10.30pm on Friday 1 August I was at a location near the toilets in Amesbury car park talking to friends. I witnessed an incident involving Justin Hayes and another man. "I was approached by the Police to ask if I would make a statement and agreed to do so when I had discussed the matter with my Nan. I telephoned the Police shortly afterwards to make the necessary arrangements. Unfortunately the Police arrived at my house a few minutes after I got home which not only annoyed me but my Nan also. For that reason alone I foolishly made a statement dated 5 August 2003 (copy enclosed) in effect stating I knew nothing about the incident involving Justin Hayes. [That is the statement we have just read.] "A day or so later I telephoned the Police informing them I wished to change my statement but it was not until 6 October that I was again interviewed by the Police on video and gave a full account of what I saw in Amesbury car park on Friday 1 August and was prepared to attend Court if required. I also explained in that same interview at 20.15 why I had not told the truth in my earlier statement. I believe that the explanation on the transcript is a full and accurate account. "I attended Court when Justin's trial started at Salisbury fully prepared to stand up and give evidence on Justin's behalf and was also under no illusions that I could have been heavily criticised for making my first statement and I was also told that there was a chance that I could have been prosecuted for perjury. "Despite this I was and am still prepared to give evidence on Justin's behalf as set out in the transcript of my interview dated 6 October 2003 and I should add that I do recall at Salisbury Crown Court Justin's Barrister allowed me to use his mobile telephone to speak to my Mum and ask her opinion as to whether I should give evidence or not. She agreed that I should." 31. We have before the court, and have read carefully, the transcript of the video recording that she made on 6th October which is the evidence that is sought to be adduced. No further or detailed statement has been taken from the girl. It is unnecessary for us to read out the detail of that statement. She gives her account of the events with which the case is concerned. She saw the earlier part of the incident and describes there what she says happened, but she gives no account of the later part of the incident which is when the Crown say that the serious assault was committed by the appellant. 32. Therefore, on its face, her evidence is neutral as to the critical part of events, but the appellant submits that what she says about the earlier part of events may be of benefit to the appellant's case. 33. Section 23(2) of the Criminal Appeal Act 1968 provides that in considering whether to receive any further evidence the court has to have regard, in particular, to four matters: (1) whether the evidence appears to the court to be capable of belief; (2) whether it appears to the court that the evidence may afford any ground for allowing the appeal; (3) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (4) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. 34. There is no problem about the third of the criteria. The evidence clearly would have been admissible in the proceedings. There are difficulties, however, about the other three criteria. As to the first of the criteria, whether the evidence appears to the court to be capable of belief, the witness has now made two statements which completely conflict with each other; the first in witness statement form, the second in the form of the video recorded interview. The witness gives reasons why the first statement should be disbelieved and the account in the video interview should be believed. 35. We put it this way, that on the presently available information there are serious question marks about whether the evidence appears to be capable of belief. The answer to that question would only be resolved one way or the other following listening to the witness's evidence. 36. The second question is whether the evidence that the witness would give may afford any ground for allowing the appeal. Again, we have serious doubts about this because she does not give an eye witness account as to the crucial part of the incident. She speaks of the earlier part of the incident and it may be paints a picture of the victim being more of an aggressor than might have been the case at the trial. Secondly, she is silent as to the evidence that the appellant was bragging about having stamped on or kicked the victim when he was seen after the incident. No doubt had she given evidence she would have been cross-examined about that, and it is difficult to speculate on what her answers might have been. 37. Suffice it to say that we have very, very serious doubts that any evidence that she might have given to us could afford any ground for allowing the appeal. 38. The final hurdle to the admissibility of this evidence is whether there is a reasonable explanation for the failure to adduce the evidence at the trial. In our judgment this is the hurdle which the appellant is unable to overcome however favourably one interprets the known facts towards him. 39. Our attention has been drawn to the recent decision of this court in R v Hampton and Brown [2004] EWCA Crim 2139 and we were referred in particular to the very last paragraph of the judgment of Hooper LJ where he refers to two lessons being drawn from the case. It is the first that is the important one for present purposes: "... if a defendant is in a position to call a witness on his behalf at his trial and he makes a deliberate and informed decision not to do so, he and his advisers should not expect this court to allow an appeal on the basis of fresh evidence." 40. The witness McPhie was available at the trial. She was able to give evidence and indeed she was willing to give evidence. The position is clear from her statement of 27th July this year which we have read, and it is to be noted that the barrister who was then acting for the appellant, not Mr Patterson, allowed her to use his mobile telephone to speak to her mother to ascertain her opinion as to whether she should give evidence. Her mother agreed that she should. 41. We have been provided with a copy of a certificate dated 24th March of this year, the day of the trial, and the moment when the decision was taken by the defence not to call Stephanie McPhie. It reads in these terms: "I Justin Hayes have instructed my counsel that I do not wish Stephanie McPhee to give evidence on my behalf as this would put her at risk of prosecution." 42. That cryptic statement raises a number of questions. In the first place McPhie was already under some theoretical risk of prosecution it would seem, having given two entirely conflicting and inconsistent accounts to the police. It is not clear to what extent that risk might have been increased in the event that she did give evidence. On the face of it, this court considers that such risk as she was under was remote and was unlikely to be significantly increased had she gone into the witness box to give evidence, but that is not a matter on which this court should really speculate. 43. What is clear is that the person who is best able to assist the court as to the reasons why the defendant did not call Stephanie McPhie at the trial, other than the defendant himself, is his then counsel. Although we raised this point with Mr Patterson more than once during the course of argument, there has been no waiver of privilege so that the court might be apprised of what counsel had to say, indeed not even a request for an adjournment in order that steps could be taken, albeit at the 59th minute of the 11th hour, to waive privilege and obtain the necessary information from him. 44. It seems to us, in our experience of the criminal process, that it might have been very detrimental to the defence to have called Stephanie McPhie on the defendant's behalf to give evidence at the trial. She would have been vigorously cross-examined, no doubt, about her reasons for the first statement to the police. It would probably have been suggested that she was anxious to cover up for the defendant whom she knew, and that even the second statement did not contain the whole truth about what she had seen at the time of the assault. 45. In our judgment the fourth of the four criteria, reasonable explanation for failure to adduce the evidence at the time, has not been met. In these circumstances we are not prepared to give leave to appeal on this second ground. The appeal against conviction therefore fails.

2004_10_22-344.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2844/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2844

6a86cb34fb4e8f922c4ed54e0db7697f23e1d2d7afae069de190900adae82644

[2007] EWCA Crim 1236

EWCA_Crim_1236

supreme_court

Neutral Citation Number: [2007] EWCA Crim 1236 Case No: 200504691 C1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BLACKFRIARS CROWN COURT His Honour Judge Pillay T20037313, T20037168 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/05/2007 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HONOURABLE MR JUSTICE BURTON and THE HONOURABLE MR JUSTICE STANLEY BURNTON - - - - - - - - - - - - - - - - - - - - - Between : Robert D Hendy-Freegard Ap

Neutral Citation Number: [2007] EWCA Crim 1236 Case No: 200504691 C1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BLACKFRIARS CROWN COURT His Honour Judge Pillay T20037313, T20037168 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/05/2007 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HONOURABLE MR JUSTICE BURTON and THE HONOURABLE MR JUSTICE STANLEY BURNTON - - - - - - - - - - - - - - - - - - - - - Between : Robert D Hendy-Freegard Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr T Owen QC and Ms S Riggs for the Appellant Mr G Carey QC and Mr M Hick for the Respondent Hearing dates : 24th and 25th April 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Phillips CJ Introduction. 1. On 23 June 2005 in the Crown Court at Blackfriars, after a trial that had lasted about 8 months, the appellant was convicted of two counts of kidnapping, the victim of the first offence being John Atkinson and of the second Sarah Smith. On 6 September 2005 he was sentenced by the trial judge, HH Judge Pillay, on the first count to life imprisonment with a recommended minimum term of 7 ½ years and on the second count to life imprisonment with a recommended minimum term of 10 years. He was also convicted of a large number of counts of dishonesty of which the victims were, John Atkinson, Sarah Smith, Caroline Cowper, Elizabeth Richardson and Kimberly Adams. These were ten counts of theft, 5 counts of obtaining a money transfer by deception and three counts of procuring the execution of a valuable security by deception. These counts spanned a period of 10 years from 1993 to 2003. 2. For these counts he was sentenced to imprisonment. The sentences of imprisonment imposed in relation to each individual victim were ordered to be served concurrently but the groups of concurrent sentences were ordered to be served consecutively, with the result that the cumulative total was 9 years imprisonment. This total was ordered to be served concurrently with the sentences in respect of the first two counts. Credit was given for two years and 107 days spent remanded in custody. This lengthy period is explained, in part, by the fact that an earlier trial had commenced but the jury had had to be discharged and a retrial ordered. 3. The appellant was acquitted of two other counts of kidnapping, in respect of which the alleged victims were Maria Hendy and Elizabeth Richardson. He was acquitted of a count of threatening to kill Kimberly Adams 4. The appellant’s applications to appeal against conviction on the first two counts and against the sentences in respect of all the counts were referred to this court by the Registrar. We gave permission to appeal at the beginning of the hearing. 5. There were a substantial number of grounds of appeal against conviction, but we identified one fundamental issue of law on which we invited initial argument. At the end of that argument we ruled on it in favour of the appellant and held that the conviction would be quashed and that accordingly there would be no need to consider the other grounds of appeal against conviction nor the appeal against sentence in relation to the first two counts. We then heard the appeal against the sentences imposed in relation to the remaining counts and dismissed that appeal. We now give the reasons for our decisions. 6. The facts of this case are, happily, extraordinary. The appellant is a confidence trickster who combines seductive charm with an astonishing capacity to deceive. At the heart of what the judge rightly described as a ‘web of deceit and lies’ was his pretence that he was an undercover agent working variously for MI5 or Scotland Yard. Once his victims were under his influence he took control of their lives, directing them what to do and where to live. His directions often exposed them to substantial hardship. He treated them with callous cruelty and fleeced them and their parents of sums of money totalling approximately £500,000. 7. Some aspects of the appellant’s conduct laid the ground for the charges of dishonesty of which he was convicted. The Crown searched, however, for an offence that would encapsulate all aspects of the appellant’s conduct and, in particular, the deprivation, as a result of his malign influence and deception, of his victims’ freedom to pursue their own lives. The Crown decided that the offence of kidnapping would fit this bill. A single count of kidnapping was charged in relation to each of the four victims on the basis that it could be shown that each had been induced by deception to make a journey that he or she would not have made had he or she known the truth and that these facts constituted the ingredients of the offence of kidnapping, as identified by Lord Brandon in R v D [1984] 1 AC 778 . The judge accepted the latter proposition and directed the jury accordingly. He subsequently treated the two counts of kidnapping in respect of which the jury returned guilty verdicts as enabling him to impose sentences that reflected the overall seriousness of the appellant’s behaviour. The facts 8. The two counts of kidnapping on which the appellant was convicted alleged initially that each victim was kidnapped between the 14 th and the 31 st March 1993. In the case of Sarah Smith the latter date was altered by amendment to the 30 th April 1993. Thus, in each case, the kidnapping was alleged to have occurred close to the beginning of the story. That story began at the end of 1992. The appellant obtained employment as the manager of the Swan public house in Newport, Shropshire. There he met three students who were studying at a nearby agricultural college. These were John Atkinson, his girl friend Sarah Smith and another girl called Maria Hendy. He persuaded John Atkinson to work part time in the pub as a barman. 9. Shortly after the Christmas vacation of 1992 the appellant’s relationship with Maria Hendy became sexual. At about the same time the appellant falsely told John Atkinson that he was a secret agent investigating an IRA cell at the agricultural college. He said that as a result of his having uncovered the cell his life was in danger as were the lives of those associating with him, namely John Atkinson, Maria Hendy and Sarah Smith. He said that, for this reason, it was necessary for them all to leave Newport. He told John Atkinson not to disclose these matters, but to tell the girls that he, John Atkinson, was terminally ill, and persuade them to go together on a farewell tour of the country. 10. John Atkinson carried out this plan. The girls agreed to leave with the two men. At the time that they were due to leave, however, the appellant fell ill and was taken to hospital and Maria Hendy accompanied him. John Atkinson and Sarah Smith set off together and went, initially to a friend’s farm. The appellant and Maria Hendy subsequently joined them there and they set off for a tour of the country. In the course of the journey visits were made to the parents of the students. At some stage each of the girls became aware of the appellant’s alleged membership of the secret service. 11. The group settled in a flat in Sheffield. Maria Hendy became pregnant; the other three went out to work. The appellant took from them all the money that they earned and subjected them to humiliating house rules. He made them draw out and hand over to him money from their bank accounts. 12. Maria Hendy’s relationship with the appellant lasted until 2002. She had two children by him and continued to live in Sheffield, while the appellant travelled around the country. John Atkinson remained under the appellant’s influence and acted in accordance with his directions until 1997, when he managed to extricate himself from the relationship and restructure his life. By then he had been induced to hand to the appellant substantial sums of money, much of which was obtained from his family. 13. Sarah Smith remained under the appellant’s influence until after he had been arrested by the police in 2003. She moved around the country, staying in a variety of accommodation under his directions, often in some discomfort. The appellant would relieve her of money that she earned or obtained from other sources. On occasions he had sexual intercourse with her. 14. Elizabeth Richardson, Caroline Cowper and Kimberly Adams came under the appellant’s influence at different times during this period, to the detriment of each of them. 15. The appellant met Elizabeth Richardson in Sheffield and started an affair with her. He told her that he worked for MI5, and was on the run. He made her give him substantial sums of money. The relationship ended, but in 2000 he tracked her down and resumed it. He persuaded her to go away with him to start a new life in the South East. It was the Crown’s case that he had induced her to go with him by fraud and that this was kidnapping, The jury acquitted him of that charge. 16. Whilst working in London the appellant met Caroline Cowper and began a relationship with her. They agreed to get married and the wedding day was fixed for 2 February 2002 but the relationship broke down. The appellant obtained substantial sums from Miss Cowper’s bank account by deception. 17. The appellant began a relationship with Kimberly Adams in March 2002. He told her that he was a spy, working under cover as a car salesman in London. They became engaged in August 2002 and planned to marry in November 2002. The wedding was then postponed. The appellant induced Kimberly Adams to part with large sums of money, some of which was obtained from her father. The Crown’s case on the elements of kidnapping 18. We shall restrict our comments to the Crown’s case in relation to the counts of kidnapping John Atkinson and Sarah Smith, although its case in relation to the other two counts of kidnapping was of the same nature. We shall first outline the Crown’s case on the facts and then explain the contentions of law that the Crown based on these facts. 19. It was the Crown’s case that the kidnapping of John Atkinson and Sarah Smith occurred as incidents of the journey that they made around the country after leaving Newport at the end of March 1993. So far as John Atkinson was concerned, it was the Crown’s case that he was induced to set off on this journey as a result of the false story that the appellant had given that it was necessary for them all to leave to escape from the IRA cell. This deception was enough, on the Crown’s case, to turn the commencement of the journey and, indeed its subsequent stages, into the crime of kidnapping. The fact that the appellant was in hospital, rather than with John Atkinson and Sarah Smith when the journey began did not matter. 20. So far as Sarah Smith was concerned, the evidence was that she began the journey under the impression that they were making it for John Atkinson’s sake, because he was terminally ill. There was a conflict as to when, and how, Sarah Smith was told that the true reason for the journey was that the appellant was a secret agent and that the party was at risk from the IRA cell. It was the Crown’s case that it did not matter when this occurred, provided that the jury were sure that at a point in time Sarah Smith continued on the journey because, and only because, she believed in the truth of this alternative false story. The amendment to the indictment, extending the period during which Sarah Smith’s kidnapping was alleged to have occurred, was made in order to ensure that the moment at which she was informed of what was alleged to be the true reason for the party’s voyaging fell within that period. 21. The Crown’s case on the elements of the crime of kidnapping was and is based essentially on one decision of the House of Lords and two of the Court of Appeal. It is as follows: 22. R v D [1984] AC 778 established that there were four ingredients of the crime of kidnapping: i) the taking or carrying away of one person by another; ii) by force or fraud; iii) without the consent of the person so taken or carried away; and iv) without lawful excuse. 23. R v Wellard (1978) 67 Cr App R 364 established that the ‘taking and carrying away’ did not have to involve physical removal of the victim. It was enough if the defendant so acted as to cause the victim to feel that she was compelled to submit to his instructions and move a comparatively short distance from one place to another. 24. R v Cort [2003] EWCA Crim 2149 ; [2004] 1 Cr App R 18 established that the way in which the defendant caused the victim to move from one place to another did not have to involve coercion. It was enough if the defendant induced the victim to make that journey by fraud. 25. It was and is the Crown’s case that the element of ‘taking and carrying away’ can be achieved by causing the victim to move from one place to another, even where the victim is unaccompanied. Thus, in his skeleton argument prepared for this appeal Mr Carey QC for the Crown submitted, in the case of Sarah Smith, that any movement caused by the appellant’s misrepresentation that he was an undercover policeman amounted to kidnapping by fraud. “There was clear evidence that as a result of the fraud Sarah Smith went where she would not otherwise have gone and continued to do so for 10 years. Manifestly she was deprived of her liberty for that long period of time”. There was no need for the Crown to allege or prove precisely when or where Sarah Smith was first deceived by the appellant and thus first kidnapped. There was a series of kidnappings every time she was induced to move by fraud. The same was true in the case of John Atkinson. 26. These submissions do not focus on what was a critical issue in the argument before us, namely whether there can ever be a case of kidnapping that does not involve the offence of false imprisonment. Mr Carey argued that kidnapping does not necessarily involve false imprisonment; furthermore at one point he appeared to concede that the Crown had not been in a position on the facts of this case to establish the offence of false imprisonment. The defence case 27. It was and is the defence case that Mr Carey has misinterpreted the authorities upon which he relies. Kidnapping is a variety of false imprisonment. If taking and carrying away is all that is relied on, this must involve deprivation of liberty. This does not have to involve physical coercion. It is enough if the kidnapper induces the victim to accompany him by persuading her that it is necessary to do so, whether by threat or fraud. Causing a person by fraud to go from one place to another unaccompanied cannot amount to kidnapping. The judge’s rulings and direction to the jury 28. Mr Draycott QC, who was then acting for the defence, advanced the submission that, on the evidence adduced by the Crown, there was no case to answer in respect of the kidnapping counts. In the judgment that he delivered on 12 April 2005, rejecting that submission, the judge’s summary of the arguments advanced by Mr Draycott included the contention that it was imperative the defendant took or carried away the victim, that is that he accompanied the victim. He submitted that the word ‘takes’ connoted a physical involvement of the defendant with the victim. In rejecting this submission the judge said this: “Neither counsel have placed before me any dictionary definition of the word ‘takes’. It is not without significance in my judgment that the current edition of Websters New English Dictionary and Thesaurus defines the word as including: ‘to grasp, or to seize, to gain, to win, to choose or select, to lead, to carry, to swindle, to deceive, to procure, or to escort.’ The word ‘takes’ is in my judgment, wide enough to encompass the allegations made by the Crown within the said Counts.” 29. Mr Draycott was not satisfied that the judge had adequately addressed his submissions, so on 13 May 2005 he sought further rulings from the judge, posing specific questions. These included the question “does the defendant have to accompany the victim at the time of the alleged taking and carrying away?” to which the judge answered “no”. 30. The material parts of the judge’s summing up to the jury appear at pages 21 to 25 of the transcript: “Kidnap. Kidnap is a serious offence representing the deprivation of a victim’s liberty. The House of Lords, in a celebrated case, laid down the ingredients as follows. ‘1. There must be a taking or carrying away of one person by another. 2. The taking or carrying away must be by force or fraud. 3. The taking or carrying away must be without the consent of the person so taken or carried away. 4. The taking or carrying away must be without lawful excuse. So the ingredients of the offence which the prosecution must prove, in any particular case of kidnap are: One, there must be a taking or a carrying away of one person by the other; two, the taking or carrying away must be by force or fraud; three, the taking or carrying away must be without the consent of the person so taken or carried away, and; four, the taking or carrying away must be without lawful excuse.” … “Now, it does not end there. The Court of Appeal has provided a further refinement and held that where the allegation alleges as here, a kidnap by fraud, once the fraud alleged within the count has been proved, that fraud then cancels out the consent of the person so taken or carried away. In other words, fraud negates consent. It disposes of the requirement for the ingredient because, members of the jury, consent obtained as a result of fraud cannot be true consent. Now, in relation to all the kidnaps alleged in this case, the Crown’s allegation is that it was by fraud. Namely, that the defendant pretended that he was or passed himself off as an MI5 or an MI6 agent or as a Metropolitan Police officer or, alternatively, that he worked for the Secret Services of the United Kingdom with a brief to infiltrate and report on the IRA.” … “The words ‘take’ and ‘carried away’ must be given their ordinary meaning within the English Language. ‘Take’ within the context of this case, means to physically move or to cause the complainant to physically move from one place to another. ‘Carrying away’, in the context of this case, also means moving the victim from one place to another. It need not be very far. Quite a short distance will suffice. It is not necessary that the victim should be physically moved, for example by being picked up and carried away. It will be quite enough if, because of the defendant’s conduct, the practical effect on the victim was that he or she felt compelled to move because of the defendant’s instructions. That would be quite sufficient. If that happened, then that victim would have been carried away and that is what the Crown alleges happened to the complainants in this case. It follows from what I have said, members of the jury, that there is no legal requirement that the defendant must accompany the victim when they move from one place to another. For example, here you will recall that the move by John Atkinson and Sarah Smith from Newport was separate from the defendant and Maria Hendy.” 31. In his submissions before us Mr Carey submitted that the judge’s rulings and directions on the law were correct. Alternatively, in a very late submission, he argued that if the jury should have been given a direction which specified that false imprisonment was an additional ingredient to those identified in R v D [1984] 1 AC 778 , the jury would unquestionably have found this requirement satisfied. The authorities 32. Kidnapping is a common law offence that was prevalent in the 17 th Century. It was defined by Blackstone 4 Comm 219 as “the forcible abduction or stealing away of a man woman or child from their own country and sending them into another”. By the beginning of the 20 th Century transportation to a foreign country was no longer an element of the offence. The 38th Edition of Archbold (1973) defined it as “the stealing and carrying away, or secreting, of any person of any age of either sex against the will of such person…” and this definition can be traced back to the beginning of that century. There were few instances of kidnapping being charged, however, perhaps because of the overlap that the ingredients of the offence had with the offence of false imprisonment and with statutory offences introduced for the protection of children. 33. In 1983, in the second edition of his Textbook of Criminal Law, Glanville Williams commented at p. 219: “What about kidnapping? There is a common law offence going by this name, which is committed by carrying a person away without his consent. It is supposed to be a particularly serious form of false imprisonment, but over the years the courts have, in familiar fashion, attenuated the circumstances of aggravation, so that now the only distinguishing feature is that the imprisonment, to amount to an aggravation, must involve either the secreting of the victim or carrying him away from the place where he wishes to be. It may be either by force or by the threat of force. (As was said before, the courts may perhaps extend it to a taking by deception.) ” 34. The statement in parenthesis referred to a prescient comment on the previous page: “There is no clear authority for saying that it is a false imprisonment (or kidnapping – see below) to cause a person by deception to remain in a place or to go to a place. The person who is deceived is caused to behave in a certain way but is not deprived of his liberty. However, it is quite possible that the courts will make this extension if the point arises. There are precedents for saying that an offence of doing something ‘against the will’ of someone covers the getting of consent by fraud.” 35. In R v Reid [1972] 56 Cr App R 703 one issue raised was whether it was a necessary ingredient of kidnapping that the victim should be held and secreted. Giving the judgment of this court, Cairns LJ observed: “Russell cites 1 East Pleas of the Crown 429, where the statement is: ‘The most aggravated species of false imprisonment is the stealing and carrying away or secreting of some person, sometimes called kidnapping, which is an offence at common law.’ We can find no reason in authority or in principle why the crime should not be complete when the person is seized and carried away, or why kidnapping should be regarded, as was urged by counsel, as a continuing offence involving the concealment of the person seized.” 36. This decision was followed in R v Wellard . In that case the defendant induced a girl to accompany him about 100 yards to his car and to get into the back of it. He did so by falsely pretending to be a police officer searching for drugs and saying that he would escort her to her home. Before he could drive away, her boy friend arrived with two other men and extricated her from this situation. The trial judge, Robert Goff J, directed the jury that the first element that the prosecution had to prove was that the defendant deprived the victim of her liberty. This, however, was not enough. He had to secrete his victim or carry her away. As to the latter requirement it was not necessary that the victim should be physically carried. “It would be quite enough if, because of his conduct, the defendant had the practical effect upon [her] that she felt compelled to submit to his instructions and, for example, to walk a short distance.” 37. On appeal the point was taken that the offence of kidnapping was not complete unless and until the defendant succeeded in taking the victim to the destination to which he wished to take her. Lord Justice Lawton remarked that the deprivation of liberty “has not been in dispute”. What was in issue was the carrying away. He concluded at p. 367: “All that has to be proved is the false imprisonment, the deprivation of liberty coupled with a carrying away from the place where the victim wants to be. It may be that in some circumstances the movement would not be sufficient in the estimation of the jury to amount to a carrying away. Every case has to be considered on its own facts. In this case the victim was carried away by the appellant for no less than 100 yards and put into a motor car. In our judgment, there was ample evidence that the victim was carried away from the place where she wanted to be, namely by the side of her boyfriend on Stafford Common. There is nothing in the point of law which is raised in this appeal.” 38. Mr Carey relied on this passage in submitting that inducing a person by fraud to move even a short distance from one place to another constituted kidnapping. He failed, however, to grapple with the fact that both the judge and the Court of Appeal had held that to make out the offence of kidnapping the prosecution had to establish that the defendant had deprived the victim of her liberty. 39. We turn to the decision that has been treated as identifying the elements of the common law offence of kidnapping as it has developed in modern times. In R v D [1984] 1 AC 778 the appellant was the father of a daughter who, in proceedings in the Family Division, had been made a ward of court. Care and control was awarded to the mother. The father was convicted of two counts of kidnapping. The first related to events that occurred when his daughter was two years old. The father, with two violent men whom he had recruited for the purposes, broke into the flat where his daughter lived with her mother and literally carried her away by force. The child showed no signs of distress. She was subsequently restored to her mother. 40. The events giving rise to the second count occurred when the daughter was aged five, by which time the parents were divorced. The father on that occasion wrenched the child by force from the arms of her mother, carried her to a car and made off with her. In these circumstances it was not disputed by the defence that the daughter had been taken and carried away. The issue related to consent. The judge had directed the jury that the taking had to be without the consent of the child, if they found that she was capable of giving consent, and otherwise without the consent of her guardian. The Court of Appeal had quashed the conviction, holding that there was no offence of kidnapping a child under 14 and further that the offence of kidnapping could not be committed by a father against his own unmarried minor child. The House of Lords allowed the appeal by the Crown and restored the conviction. 41. Lord Brandon gave the only substantive speech. Most of this dealt with the issues peculiar to the case and had no bearing on those that we have to resolve. He did, however, begin his speech by remarking that the House had, for the first time, to examine the nature, ingredients and scope of the offence as it was under modern conditions. After a reference to the relevant authorities Lord Brandon summarised the offence as follows: “From this wide body of authority six matters relating to the offence of kidnapping clearly emerge. First, the nature of the offence is an attack on the infringement of the personal liberty of an individual. Secondly, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse. Thirdly, until the comparatively recent abolition by statue of the division of criminal offences into the two categories of felonies and misdemeanours, the offence of kidnapping was categorised by the common law as a misdemeanour only. Fourthly, despite that, kidnapping was always regarded, by reason of its nature, as a grave and (to use the language of an earlier age) heinous offence. Fifthly, in earlier days, the offence contained a further ingredient, namely, that the taking or carrying away should be from a place within the jurisdiction to another place outside it; this further ingredient has, however, long been obsolete, and forms no necessary part of the offence to-day. Sixthly, the offence was in former days described not merely as taking or carrying away a person but further or alternatively as secreting him; this element of secretion has, however, also become obsolete, so that, although it may be present in a particular case, it adds nothing to the basic ingredient of taking or carrying away.” 42. Mr Carey submitted that, in this passage, Lord Brandon overruled the requirement, if such there was under the ‘modern authorities’ to which he had referred, that kidnapping involved deprivation of liberty. We reject this submission. It is inconceivable that Lord Brandon would have made such a radical change in the law without making it clear that he was doing so. We consider that his opening statement that the nature of the offence was an attack on, and infringement of, the personal liberty of an individual, was a recognition of this element of the offence. What he did not make clear, for the question did not arise on the facts before him, was how the requirement of this element was satisfied when the taking and carrying away was achieved not by force but by fraud. This was a question that might well have been discussed in the next case to which we turn. Unhappily it was not. 43. The facts of R v Cort [2004] 1 Cr App R 18 were quite extraordinary. The appellant pleaded guilty to two counts of kidnapping and 10 counts of attempted kidnapping after a ruling of law by the judge. On appeal he contended that the ruling was wrong. The facts were that the appellant had, on numerous occasions, stopped his car at a bus stop, falsely told those at the stop that the bus had broken down and offered a lift to a single woman standing in the queue. The women usually refused, but two accepted, and the counts of kidnapping related to these. The first changed her mind and asked to be let out of the car and the appellant complied. The second was taken by him to her destination. The issue was whether the offence of kidnapping could be made out in circumstances where the alleged victims had consented to being taken in the appellant’s car to the very place that they wished to go. The judge ruled that the offence could be made out if the consent was induced by fraud. 44. The Court of Appeal dismissed the appeal that challenged this ruling. Buxton LJ gave the judgment of the court. The only previous decision in relation to kidnapping that he cited was R v D, albeit that Wellard had been referred to in argument. Buxton LJ focussed on the four elements of the offence identified by Lord Brandon and sought to apply them to the facts of the case before the court. So far as the first ingredient, ‘taking and carrying away’, was concerned he observed at p. 201: “There is no doubt and it was not disputed, that in the case of the two ladies that went with Mr Cort in his motor car, they were indeed carried away from where they originally were, and wanted to be, that is to say the bus stop”. So far as the second ingredient ‘by force or fraud’ was concerned, he observed “they were carried away by fraud, in the sense that they would not have got into Mr Cort’s car unless he had told them the lie that he did about the bus having broken down”. Detailed discussion was reserved for the third ingredient, “without the consent of the person so taken or carried away”. 45. Counsel for the appellant argued that the type of fraud referred to in the second ingredient was the type of fraud that, in cases of rape and fraud can “vitiate an otherwise apparent consent”, namely mistake as to identity or as to the nature of the act in which the victim is engaging, so that lack of consent still had to be established. As to this, Lord Justice Buxton observed at p. 202: “As we have already pointed out, the application of that line of authority to the case of kidnapping produces a surprising outcome. The definition of the offence inculpates the defendant in cases of fraud, but then exculpates him unless the fraud is as to a very unusual and limited matter not in fact likely to arise in most kidnapping cases” The court rejected the submission that the fraud referred to by Lord Brandon fell to be limited in this way. The conclusion reached by the court was that there was probably no room for the requirement of lack of consent in the case of kidnapping where the taking and carrying away was induced by fraud. Discussion 46. How can one arrive at a satisfactory definition of the offence of kidnapping that accommodates both Wellard and Cort? The difficulty arises principally because neither in Wellard nor in Cort did the court discuss the element of deprivation of liberty. In Wellard this had been conceded in the Court of Appeal; in Cort the element was simply not discussed. We shall start with Wellard. 47. On what basis was it conceded in Wellard that deprivation of liberty had occurred? There are two possibilities. The first is that the deprivation of liberty occurred when the victim was induced to get into the appellant’s car. On this analysis the offence of kidnapping consisted of a ‘taking and carrying’ away by fraud that did not, itself, amount to a deprivation of liberty, but which was followed by the requisite deprivation of liberty. 48. The alternative is that it was accepted that, having regard to Robert Goff J’s direction to the jury, the ‘taking and carrying away’ itself amounted to a deprivation of liberty. The judge had directed the jury that this element would be established if “because of his conduct, the defendant had the practical effect upon [the victim] that she felt compelled to submit to his instructions and to walk a short distance”. In 1984 the Criminal Law Revision Committee published a Report on Offences against the Person that dealt with false imprisonment and kidnapping. Under the heading Unlawful Detention the Report commented: “231. the essence of unlawful detention should be the intentional or reckless detention, without lawful excuse, of a person without his consent and that it should cover (as the present law does) detaining a person, causing him to remain where he is, or causing him to accompany another person. Acquiescence obtained by duress should, of course, be no defence. We also propose that the offence should be committed where the victim acquiesces because he believes that he is under legal compulsion. An example would be where a person causes another to accompany him by falsely pretending to be a police officer”. Wellard is cited in a footnote as an example of such a situation. In a further footnote the report comments, when dealing with kidnapping, that “carrying off” is a form of detention. This suggests that the authors of the Report accepted the second explanation of the result in Wellard. 49. One thing is quite plain and that is that in Wellard deprivation of liberty was treated as an essential ingredient of the offence of kidnapping. 50. In Cort the victims were induced to get into the appellant’s car by fraud, whereupon he drove off. It was conceded by the defence that this constituted the necessary element of ‘taking and carrying away’. The issue raised was whether, because each victim had been tricked into consenting to this, a necessary ingredient of the offence of kidnapping, namely absence of consent, was missing. The court held that because consent to the taking and carrying away had been induced by fraud, there was no need to prove lack of consent. With respect to the court, we think that it failed to ask the further question whether the taking and carrying away constituted a deprivation of liberty. 51. A passenger in a moving car is not free to leave it without the cooperation of the driver. We do not, however, consider that such a passenger is deprived of her liberty unless the driver is not prepared to allow her to leave the car if she wishes to do so. In Cort there was no suggestion that the appellant intended to detain his passengers in his car against their wills. Indeed, one of the two expressed a wish to leave the car and was permitted by the appellant to do so. The other was taken to the destination to which she wished to go and there permitted to leave the car. In these circumstances it seems to us that the vital element of deprivation of liberty was not made out and, had precedent been properly applied, the appellant should not have been convicted of kidnapping. 52. The court in Cort held that to persuade a person by a misrepresentation to agree to being driven to a particular place constitutes the offence of kidnapping. The court justified this conclusion as follows: “Mr Cort’s conduct was something that society should be able to control, and it is not difficult to think of other possibilities which would carry a more serious aspect than the conduct of Mr Cort. Let us say that another person, not Mr Cort, invites ladies into his car with a view to committing a rape on them at the end of their journey; or he simply invites them into the car with a view to finding out their address, or something like that, with further and less benign objects in view. He is intercepted on the journey, or at the bus stop. On those facts we do not think that there is an offence that would have been committed, certainly not an offence of attempt of any form of sexual assault. There would be no recourse other than this offence of kidnapping. It is clear, in our view, that a proper social purpose is served by the offence in these circumstances, including those in which Mr Cort was convicted.” 53. It is open to the court to develop the common law to accommodate change and car ownership affords an opportunity for the types of objectionable behaviour envisaged by the court. We are not, however, persuaded that these considerations justified the radical change that appears to have been made in Cort to the offence of kidnapping. The Criminal Law Revision Committee, after recommending that unlawful detention should extend to the situation where the victim acquiesces because he believes that he is under legal compulsion went on to comment: “We do not propose that other cases of deception should be included. The young man who persuades a girl to accompany him to a quiet spot on some untrue pretext, when in fact he is intending to make advances to her, should not be guilty of unlawful detention.” The decision in Cort does just that, at least in circumstances where the girl is taken to the spot in question in a car. 54. Where a man entices a woman into a car for the purpose of a criminal assault the likelihood is that his intention will be not to permit her to leave his company until the offence has been committed. He is also likely to intend to take her to a destination other than that of her choice. In that event the victim will not have consented to the adventure to which she has committed herself and the defendant’s fraud will vitiate her apparent consent to being taken away. All the elements identified in R v D will be present. 55. We cannot see that there was justification for extending the offence of kidnapping to cover the situation in which the driver of the car has no intention of detaining his passenger against her will nor of doing other than taking her to the destination to which she wishes to go, simply because in some such circumstances the driver may have an objectionable ulterior motive. The consequence of the decision in Cort would seem to be that the mini-cab driver, who obtains a fare by falsely pretending to be an authorised taxi, will be guilty of kidnapping. 56. Cort was implicitly questioned by another division of this court in R v Nnamdi and De Vogt [2005] EWCA Crim 74 . Professor Ormerod has also drawn attention to aspects of the reasoning in the judgment that are unsatisfactory - see Smith and Hogan 11 th edition at pp 575-9 and [2004] Crim LR 64. Our conclusion is that the decision in Cort represented an unjustified departure from established principle. It is, however, not necessary for us to consider whether we are bound to follow Cort for, even if it binds us, it is not determinative of the result on the facts of this case. 57. The fact that it is difficult on the facts of Cort to identify the deprivation of liberty that, on previous authorities, was an essential ingredient of kidnapping does not justify the further extension of the law for which Mr Carey has contended. He persuaded the judge and sought to persuade us that the offence of kidnapping will be committed if a defendant, by a fraudulent misrepresentation, induces a person to go from one place to another, even if that person is unaccompanied. In such circumstances there is nothing that is capable of constituting a ‘taking and carrying away’. Even less is it possible to identify any deprivation of liberty. Mr Carey accepted that, if his submission was correct, the bigamist who induces a woman to travel to the church for a wedding ceremony might be guilty not merely of bigamy but also of kidnapping. Such a submission transforms the offence of kidnapping in a manner that cannot be justified, even on the basis of the decision in Cort. 58. For these reasons the judge was wrong to rule and to direct the jury that causing a person by a fraudulent misrepresentation, to move from one place to another, unaccompanied by the defendant, of itself sufficed to constitute the element of ‘taking and carrying away’ in the offence of kidnapping. Such a movement cannot of itself constitute either taking and carrying away or deprivation of liberty. 59. Having regard to the judge’s direction it is possible that the jury convicted the appellant of having kidnapped John Atkinson and Sarah Smith by fraudulently inducing them to make a journey which did not deprive them of their liberty. The convictions in such circumstances cannot stand. 60. What of Mr Carey’s belated alternative case? He submitted that there must have been occasions on which the appellant induced both John Atkinson and Sarah Smith to accompany him on a car journey by the false pretence that he was a secret service agent. Had they been given a correct direction on the law they would still have convicted the appellant of kidnapping. 61. It is possible that on one or indeed many occasions during the periods covered by the indictment the appellant induced John Atkinson and Sarah Smith to accompany him on a car journey as a result of his impersonation of a secret service agent and that, assuming Cort to be good law, a discrete offence of kidnapping was committed on each such occasion. It would, however, be quite wrong to permit the kidnapping convictions to stand on the basis that the jury would, if properly directed, have returned a guilty verdict in each case on the basis of one such incident. Where a jury’s verdict demonstrates that the jury has been satisfied of all the ingredients of an offence it can be legitimate for the Court of Appeal to allow a guilty verdict to stand, even though there has been a defect in the judge’s directions as to the law. That is not this case. It is impossible to deduce from the jury’s two guilty verdicts on the kidnapping counts that they were satisfied of facts that justified those verdicts. 62. These are our reasons for allowing the appeal against conviction. The appeal against sentence on the dishonesty counts. 63. Mr Owen QC submitted that the cumulative period of 9 years imprisonment to which the appellant was sentenced for the offences of dishonesty was manifestly excessive. Mr Owen accepted that the circumstances in which the sums, totalling about £500,000, had been extracted from the appellant’s victims were, or were akin to, breach of trust. He relied upon R v Clark [1998] 2 Cr App R (S) 95 as providing guidance to the scale of sentencing in cases of breach of trust. That guidance indicated that for contested cases of dishonesty involving breach of trust where the amount involved fell within £250,000 and £1 million the range was between five and nine years imprisonment. In that case the sentence of the appellant, who had pleaded guilty to stealing £400,000 from his employer, a charitable trust and £29,000 from the Church was reduced from 5 years to 4. 64. The circumstances in which the offences occurred in the present case had features that very substantially aggravated the seriousness of the offences. They represented a very lengthy course of conduct under which the appellant used his malign influence to subject his victims to conditions of deprivation and misery. Having regard to these features we did not consider that the totality of the sentences imposed was excessive, let alone manifestly excessive. For this reason we dismissed the appeal against sentence.

2007_05_23-1121.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1236/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1236

06083fe02e86683573eb4c986562ef459b71cca6bff2be13f5f519edf7308270

[2012] EWCA Crim 1610

EWCA_Crim_1610

crown_court

Neutral Citation Number: [2012] EWCA Crim 1610 Case No: 2001105879A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT COVENTRY (HHJ ROSS) Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2012 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION MR JUSTICE WALKER and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : Rian Michael ILES Appellant Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2012] EWCA Crim 1610 Case No: 2001105879A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT COVENTRY (HHJ ROSS) Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2012 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION MR JUSTICE WALKER and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : Rian Michael ILES Appellant Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Katy Thorne (instructed by GT Stewart ) for the Appellant Mr Benedict Leonard (instructed by the Crown Prosecution Service ) for the Respondent Hearing date: 30 April 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Walker: Introduction 1. This is yet another case in which this court is compelled to warn of the dangers associated with the complexities of criminal justice legislation. In the present case that warning arises in two different respects. 2. First, the complexities have caused difficulties for judges, court staff, prosecution and defence advocates and legal advisers, and defendants. Those difficulties could be very substantially reduced if the patchwork of criminal justice legislation were overhauled and replaced. Youth justice is one of several areas in which such difficulties are particularly acute. This case adds to the legions of examples of the importance of all concerned taking care to check the court’s powers and jurisdiction, and ensuring that cases involving young people are progressed speedily both at first instance and on appeal. 3. Second, the complexities are such that there appears to have developed a practice under which the Magistrates’ Courts adjourn summary only matters, knowing the offender is due to appear at a Crown Court on other matters, and invite the Crown Court to enable the summary cases to be dealt with at the same time by the expedient of arranging for a Circuit Judge to sit as a District Judge. Such a practice has advantages, but there are dangers. Therefore before this practice is followed, the Magistrates’ Court must carefully consider whether this is in the interests of justice and ensure that there is power to do so. A Crown Court judge who is invited to deal with two sets of proceedings in this way must decide whether it is appropriate in the light of submissions from both the prosecution and the defence. For this purpose it must be kept firmly in mind that when sentencing as a District Judge the sentence is imposed by the Magistrates’ Court, and consideration must be given not only to advantages but also to dangers that may arise because (1) the judge would, as regards the Magistrates’ Court matters, be limited to the powers of a Magistrates’ Court, powers which must be carefully checked by counsel and the court; and (2) sentences that the judge imposes when sitting as a Magistrates’ Court would have a different route of appeal from that applicable to sentences imposed by the judge when sitting in the Crown Court. If the invitation is accepted, then consideration must again be given to these dangers at the stage of deciding what sentence should be imposed by the judge when sitting as a Magistrates’ Court. 4. The present case concerns a youth who was 16 at the time of his offending. So far as this court is concerned it began in September 2011 when new solicitors for the applicant lodged at the Crown Court an application for leave to appeal against sentence, for an extension of time, and for legal assistance. The sentence was said to have been imposed by HHJ Ross sitting at Coventry Crown Court in respect of offences of “arson, criminal damage x 2, bladed article, abh, offensive weapon, s4 POA.” It had been passed on 8 October 2010, nearly a year earlier. The sentence was described as “4 years detention and 3 years extended licence – 128 days on remand to count”. The new solicitors had been instructed in January 2011, but funding and other difficulties had prevented them from assembling the necessary material prior to September 2011. Certain matters were then thought to require clarification. The result was that papers eventually came before the single judge in December 2011 with a note from the Criminal Appeal Office explaining that the extended sentence imposed on count 1 (which concerned an offence of criminal damage) was unlawful. The reason for it being unlawful was that criminal damage is not a specified offence and cannot therefore be the subject of an extended sentence. 5. It had by this time become clear that in the Crown Court there had been a single indictment, T20100218, with two counts. The first of these counts concerned one of the criminal damage offences for which leave to appeal against sentence was sought. The second count concerned the offence of arson for which leave to appeal against sentence had been sought. The remaining offences were not on the court record as Crown Court matters. In that regard, the sentencing remarks on 8 October 2010 by HHJ Ross explained that he sat on that day alone in order to pass sentence on the offences in the indictment, and also sat with two justices in order to pass sentence on the remaining matters as a youth court. 6. The single judge noted that the application suggested that the extended sentence was excessive, but he did not agree. However, as the extended sentence on count 1 appeared to be unlawful it needed to be considered by the full court. Because the sentence was in his view not otherwise open to criticism the single judge refused a representation order. 7. The result was that the entire application for leave to appeal against sentence was referred to the full court. In the absence of a representation order Ms Thorne indicated that she would appear pro bono in order to seek leave to argue that the extended sentence on count 2 was manifestly excessive. The matter was initially planned to come before the full court on 21 March this year. At that stage it was seems to have been appreciated that the Youth Court on 8 October 2010 had imposed sentences of detention, and that these were unlawful: the only sentences that could have been passed by the Youth Court for these offences, given that the applicant was under 18 at the date of his conviction, were detention and training orders. Unlawful sentences by the Youth Court cannot be remedied by this court. In order to quash the Youth Court’s unlawful sentences it was envisaged that the court would reconvene as an Administrative Court. However the constitution of this court proposed to deal with the case on 21 March 2012 was thought to be unable to do this and the matter was put back. 8. The case thus came before us on 30 April 2012. By this stage there were three further developments. First, it was thought that the applicant’s expected release date (i.e. the date when the applicant could expect his period of licence under the Crown Court sentence of 8 October 2010 to begin) was imminent. Second, the Registrar had very recently granted Ms Thorne a representation order, advising her that issues arose not only as to the invalidity of the Crown Court sentence on count 1 and the Youth Court sentences of detention, but also as to the ability of the Youth Court to commit the criminal damage offence to the Crown Court for trial and as to whether the Crown Court, when identifying a custodial term for the purpose of passing an extended sentence on count 2, could take account of the offending that gave rise to the sentences imposed by the Youth Court. Third, the Registrar had equally recently invited the prosecution to appear at the hearing in order to assist on these points. At the hearing Ms Thorne and Mr Leonard appeared for the applicant and the prosecution respectively. Neither of them had appeared below. Each produced helpful written notes for us, both before and after the hearing. We are grateful to them for their assistance. 9. At the conclusion of argument we indicated that we would announce our decision at once and would give reasons later. We stated that sitting as a Divisional Court we quashed the decision of the Youth Court committing the applicant for trial to the Crown Court on what became Count 1 of the indictment, along with the sentences imposed by the Youth Court on 8 October 2010, for which lawful sentences would be substituted. Sitting as the Court of Appeal Criminal Division we granted leave to appeal against the sentences imposed by the Crown Court on 8 October 2010, and treated the hearing of the application as the hearing of the appeal. On Count 1 we allowed the appeal, quashed the sentence and made no further order. On Count 2 we allowed the appeal, quashed the sentence, and in its place imposed a sentence of 2 years 6 months detention pursuant to s.91 of the Powers of Criminal Courts (Sentencing) Act 2000. This accordingly became the total sentence imposed by the Crown Court, and was subject to a direction that credit be given for the full period of time spent in custody on remand of 128 days. 10. We now give our reasons for our decision. The commission of the offences 11. The offences dealt with by the Crown Court occurred on 13 May 2010. Late that evening police officers attended Stoke Park School, following a report that someone was smashing windows there. They found the appellant running from the scene and arrested him. The appellant had smashed 22 windows with a crowbar and by kicking. One of the windows had been prised open, and within the English block an attempt had been made to start a fire. That block was found to be full of smoke. A deodorant can was found in the corridor. It was wrapped in some kind of material and set alight. In interview the appellant admitted causing the damage and attempting to set fire to the school because he had been banned from attending the school prom. He was given police bail with a curfew. 12. At the time of the attack on the school the appellant was living with his aunt and her husband, Mr. and Mrs. Jones. They were acting as foster carers for the appellant after his mother had died. He continued to live with Mr and Mrs Jones after the attack on the school and while on police bail. During this period the appellant committed offences on 22 to 23, 27 and 30 May 2010. All these offences were dealt with by the Youth Court. 13. At around 9 p.m. on 22 May 2010 the appellant returned home. Mrs. Jones was angry with him as he was in breach of his curfew and he appeared to be drunk. There was an argument and the appellant stormed out. He returned a few hours later but continued to argue with Mrs. Jones. He stormed out again taking a knife with him. He went outside and stabbed two tyres on Mrs. Jones’ car and also kicked a wing mirror. The appellant went back inside and continued to argue. Mrs. Jones was very frightened but the appellant did not threaten her. Mr. Jones then returned home and found the appellant being aggressive towards his wife. Mr. Jones, fearing for his wife’s safety, punched out at the appellant. The appellant retaliated and there was a struggle during which Mr. Jones received a cut to his head which bled. The appellant left the house again and made his way to a public house. There he picked up a pool cue and was heard to make threats against Mr. Jones. The police were called and found the appellant in a nearby street with the pool cue in his hand. Officers told him to drop the cue but he refused and tried to run off. The appellant then turned and made threatening gestures towards the officers. The officers used a taser to overpower him and he was arrested. In interview he eventually admitted that he was going to use the pool cue on Mr. Jones. He was bailed again. 14. On 27 May 2010 the appellant had a meeting with his youth worker. During that meeting the youth worker became concerned with what appeared to be the appellant’s obsession with knives. The applicant also threatened to kill his cousin Karl. 15. At 10.20 p.m. on 30 May 2010 the appellant went to the home of Mr. and Mrs. Jones. He had others with him. He was armed with a pool cue and was wearing a Halloween mask. He made threats and the police were called. When they realised the police had been called the appellant and the others ran off. The court proceedings 16. With the benefit of Mr Leonard’s researches after the hearing we have more detailed information about the court proceedings than was available to us on 30 April 2012. 17. As regards the events of 13 May 2010, the CPS file indicates that the appellant was charged with arson and criminal damage. When he first appeared for these offences before the justices, which appears to have been on 2 June 2010, they concluded that the arson was a grave crime and was so serious that it could not be dealt with in the youth court. Jurisdiction was declined under s.24 of the Magistrate’s Courts Act 1980 and the matter was adjourned for committal for trial to the Crown Court. 18. The eventual committal hearing is recorded as having taken place on 13 August 2010. A memorandum of entry for that day notes that the appellant was in custody. It records the position in relation to the offence of arson as follows: 1. Arson On 13/05/10 at Coventry in the County of West Midlands committed arson in that, without lawful excuse, you destroyed by fire walls and carpets to the value of £100.00 belonging to Stoke Park School intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged Contrary to sections 1(1), 1(3) and 4 of the Criminal Damage Act 1971. … Mode of Trial: Court directs trial by jury – 02/06/2010 Results Committed to CC in custody Committed for trial under section 6(2) Magistrates’ Court Act 1980 to Coventry Crown Court ... 19. The same memorandum of entry records the position in relation to the offence of criminal damage as follows: 2. Criminal damage to property valued under £5000 … On or about 14/05/10 at Coventry in the County of West Midlands without lawful excuse, destroyed windows to the value of £5000 belonging to Stoke Park School intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged Contrary to sections 1(1) and 4 of the Criminal Damage Act 1971. … Results Committed to CC in custody Committed for trial under section 6(2) Magistrates’ Court Act 1980 to Coventry Crown Court ... 20. On 24 May 2010 the appellant appeared before the justices in relation to the events of the night of 22 to 23 May 2012. He pleaded guilty on that day to offences of criminal damage (to the tyres), possession of a bladed article in a public place, assault occasioning actual bodily harm, possession of an offensive weapon, and threatening behaviour. The matter was adjourned for sentence. 21. On 10 June 2010 the appellant appeared before the justices and pleaded guilty to the offence of making threats to kill on 27 May 2010 and the offence of affray on 30 May 2010. Those matters, too, were adjourned for sentence. 22. The Crown Court’s record sheet for indictment T20100218 stated that the appellant had been arraigned before HHJ Ross on 13 August 2010 and had pleaded guilty on that day to both counts. There was a further hearing before HHJ Ross on 23 September 2010 prior to the sentencing hearing on 8 October 2010. 23. Indictment T201000218 made no mention of the value of damage to property on either count. Information before the court when sentencing 24. The appellant was born on 23 rd November 1993 and was thus sixteen and a half years of age at the time of these offences. He had previously been convicted in April 2010 for assault on a constable. He had also received reprimands in January 2007 and January 2008 for affray and possessing alcohol in a sports ground. 25. A letter had been written by the appellant to the court. It said that he realised that what he had done was irresponsible and dangerous. After spending a period of time in jail with other criminals he did not want to end up like them. He expressed a determination to “stay off the beer” and said he would like to make his mum proud and join the army. 26. A pre-sentence report which was before the court can be summarised as follows. The appellant said his offending began when he discovered his aunt had contact with his father and kept it from him. He was angry that she had not told him. The appellant showed very little empathy and no remorse. Social Care had been involved with his family since 2005 and the appellant was subject to a care order. The appellant admitted that he drank to intoxication and said he had tried various drugs. The opinion of the author was that he required a lot of work on his anger management. The appellant was likely to re-offend and the risk of harm was very high. Nevertheless the author of the report recommended a youth rehabilitation order with a supervision requirement, a curfew requirement and an electronic monitoring requirement. 27. The court also had reports from a psychiatrist and a psychologist. The main points made by the psychiatrist were these. The appellant was not suffering from a mental illness and did not suffer from a psychotic or mood disorder. There was nothing to suggest a hospital disposal. However he did fulfil the criteria for a conduct disorder. The opinion was expressed that since the death of the appellant’s mother his difficulties had been exacerbated. His lack of concern for the well being of others was of some concern. 28. The psychologist said that the appellant presented with delinquent predisposition and was at risk of behavioural disorder diagnosis. His aggressive behaviour had been present for a number of years. This had increased since the death of his mother. He presented a risk of re-offending due to his experiences, distorted beliefs and attitude. However he was motivated to engage with intervention and treatment. The sentencing remarks 29. As noted earlier, when sentencing on 8 October 2010 HHJ Ross began by saying that he sat alone in order to pass sentence on the offences in the indictment, and sat with justices in order to pass sentence on the remaining matters as a youth court. 30. The judge said at an early stage in his remarks that the sentence was going to be a sentence under the dangerousness provisions. He stated that in relation to the counts of arson and criminal damage he was satisfied that the appellant posed a significant risk of committing further specified offences which would cause serious harm. The judge continued that in relation to the arson and criminal damage matters “the minimum term would be one of four years’ detention.” He added: But obviously I reflect in my sentencing the impact that the other matters would have in reaching that aggregate figure. 31. Turning to the events of 13 May 2010, the judge said that what the appellant did arose out of a grudge, and there was no doubt that the appellant had every intention of burning down that block of the school. He had expressed disappointment in failing to achieve that aim and it was also noted he had caused massive havoc smashing many windows. The school was unoccupied but there could have been risk to fire-fighters, the caretaker and the police officers. 32. As to events after 13 May 2010, the judge noted that they were committed while the appellant was on bail and that was an aggravating feature. While drunk and in breach of his curfew the appellant stabbed two tyres on Mrs. Jones’ car, left Mr. Jones with a nasty cut to his head, armed himself with a pool cue and uttered threats, and threatened police officers with the pool cue before he was overpowered. His confrontation with the police demonstrated vividly his attitude. Only five days later the appellant threatened to kill his cousin and he intended that his youth worker would take that threat seriously. The affray on 30 May had many aggravating features. He was once again on bail, the attack was on a home, he was the leader of a group, he was armed with a pool cue, and he had worn a mask to frighten. 33. The Judge stated that as what he referred to as a “minimum term” was appropriate for the arson and criminal damage on the indictment, the sentences for the other offences would be concurrent to the “minimum term”. The pleas of guilty, the appellant’s youth, and totality were all borne in mind and those sentences came to 12 months detention. The judge explained that this comprised concurrent sentences. As regards sentences for offences on 22 to 23 May 2010, they were criminal damage (to the tyres), two months’ detention; possession of a bladed article, nine months’ detention; assault occasioning actual bodily harm, 12 months’ detention; possession of an offensive weapon (the pool cue), nine months’ detention; threatening behaviour (the incident with the police), four months’ detention. Also concurrent with these sentences and with each other were sentences of nine months’ detention for threats to kill and for affray. 34. The judge then returned to what he continued to call the “minimum term”. Working from a figure of 4 years he noted that the appellant had already spent the equivalent of nine months on remand and that brought it down to three years and three months. The judge’s conclusion was that, bearing in mind the appellant’s age, he had to order a “minimum tariff” of 19 months. He asked both counsel to check his methodology and arithmetic, and went on to explain his reasons for setting an extension period of 3 years and for his finding of dangerousness. He then asked counsel for both prosecution and defence whether he may have fallen into error and received responses to the effect that neither of them had detected any error. The judge thanked them for their assistance and commented this was one of the most difficult sentencing exercises he had tackled. 35. Overnight the judge appreciated that he had fallen into error in thinking that he should fix a “minimum term” or “minimum tariff”. On his instruction the sentence was recorded as a sentence of 4 years’ detention with extended licence of 3 years. Jurisdiction of the Crown Court 36. Section 24 of the Magistrate’s Courts Act 1980, [as in force on 13 August 2010] provides: 24.— Summary trial of information against child or young persons for indictable offence. (1) Where a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence other than one falling within subsection (1B) below, he shall be tried summarily unless— (a) … the offence is such as is mentioned in subsection (1) or (2) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection 3 of that section; or (b) he is charged jointly with a person who has attained the age of 18 years and the court consider it necessary in the interests of justice to commit them both for trial; and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence. (1A) Where a magistrates' court— (a) commits a person under the age of 18 for trial for an offence falling within subsection (1B) below; or (b) in a case falling within subsection (1)(a) above, commits such a person for trial for an offence, the court may also commit him for trial for any other indictable offence with which he is charged at the same time if the charges for both offences could be joined in the same indictment. (1B) An offence falls within this subsection if— (a) it is an offence of homicide; (b) each of the requirements of section 51A(1) of the Firearms Act 1968 would be satisfied with respect to— (i) the offence; and (ii) the person charged with it, if he were convicted of the offence (c) section 29(3) of the Violent Crime Reduction Act 2006 (minimum sentences in certain cases of using someone to mind a weapon) would apply if he were convicted of the offence. (2) Where, in a case falling within subsection (1)(b) above, a magistrates' court commits a person under the age of 18 years for trial for an offence with which he is charged jointly with a person who has attained that age, the court may also commit him for trial for any other indictable offence with which he is charged at the same time (whether jointly with the person who has attained that age or not) if the charges for both offences could be joined in the same indictment . (3) If on trying a person summarily in pursuance of subsection (1) above the court finds him guilty, it may impose a fine of an amount not exceeding £1,000 or may exercise the same powers as it could have exercised if he had been found guilty of an offence for which, but for section 89(1) of the said Act of 2000, it could have sentenced him to imprisonment for a term not exceeding— (a) the maximum term of imprisonment for the offence on conviction on indictment; or (b) six months, whichever is the less. (4) In relation to a person under the age of 14 subsection (3) above shall have effect as if for the words £1,000” there were substituted the words “£250.” 37. It is common ground that the appellant was properly committed to the Crown Court for trial on the charge of arson under section 24(1)(a) above. Arson is a grave crime as defined in section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Under section 24(1) the justices – if they are satisfied that the requirements of section 24(1)(a) are met – are to make such a committal under section 6(2) if the requirements of that subsection are met. There is no complaint about the appellant’s committal for trial under that subsection in this case. There is accordingly no need to consider the possible alternative route of sending for trial under section 51A of the Crime and Disorder Act 1998. 38. Criminal damage is not a “grave crime” in the sense described above. The appellant could, however, be committed for trial in the Crown Court in respect of the charge of criminal damage if it fell within section 24(1A)(b). In the light of the material submitted to us following the hearing at our request we conclude, contrary to our initial decision, that this provision entitled the justices to take the course that they did. The reason is that the offence of criminal damage is an indictable offence. Section 22 of the Magistrates’ Courts Act 1980 lays down a procedure under which it must be tried summarily where the value of the destroyed property, or of the damage to property, does not exceed £5,000 – but by section 18(1) of that Act this procedure is confined to offenders who have attained the age of 18. The result may seem surprising at first sight, but it should be noted that there are in any event powers under section 40 of the Criminal Justice Act 1988 to add summary only offences to an indictment. Powers of sentencing are not enlarged under s 40. That being so, it seems to us that the effective position will be the same in a case where committal is under s 24(1A)(b), for it would be wrong to impose on a young offender a sentence more severe than that applicable to an adult – compare the decision of Bean J in P v. Leeds Youth Court [2006] EWHC 2527 (Admin) . 39. In these circumstances, the answer to the query raised by the Registrar is that the committal for trial to the Crown Court of the criminal damage offence was lawful. In our capacity as a Divisional Court, we recall our order insofar as it quashed the committal for trial to the Crown Court of the criminal damage offence. The appropriate sentence in the Crown Court 40. Under section 228(2A) of the Criminal Justice Act 2003 in a case like the present the court may impose an extended sentence of detention only if the term that it would specify as the appropriate custodial term would be at least four years. The judge when sentencing implicitly acknowledged that the offence of arson on its own could not properly result in such a custodial term. He relied on the other offending in order to arrive at the necessary figure. One of the questions identified by the Registrar was whether the Crown Court, when identifying a custodial term for the purpose of passing an extended sentence on count 2, could take account of the offending that gave rise to the sentences imposed by the Youth Court. We do not need to decide that question, and we leave it over for determination in a case where the answer will affect the outcome of the appeal. It does not affect the outcome in the present case because, even taking account of all the other offending, a custodial term of 4 years would in our view have been manifestly excessive. The offences involved alarming violence and threats of violence. Bearing in mind the appellant’s age, however, they were not in such a category as would warrant a custodial term of 4 years. It was for that reason that we quashed the extended sentence imposed by the judge. 41. In its place we imposed on count 2 for the offence of arson a sentence under s 91 of the 2000 Act of 2 years 6 months’ detention. Ms Thorne accepted that a determinate custodial sentence, albeit for a term significantly less than 4 years, was appropriate. We have been assisted by a report prepared for this court which explained how, after seriously disruptive behaviour during the period to August 2011, the appellant appeared to have settled down. In considering the appropriate determinate term we have regard to the principal aim of the youth justice system (to prevent offending by children and young persons), to the welfare of the appellant, and to the Definitive Guideline Overarching Principles – Sentencing Youths issued by the Sentencing Guidelines Council in November 2009. We note that the arson did not cause substantial monetary damage, but it was nevertheless a grave offence carrying obvious dangers not merely to property but also to human life. When arriving at a term of 2 years 6 months we did not take into account the appellant’s criminality in committing the offences which were dealt with in the Youth Court. In that regard we have not sought to determine whether the Crown Court has power to do so. We simply record that those offences were committed by the appellant, will have been punished by the sentences which we set out (in our capacity as a Divisional Court) at paragraph 42 below, and are not matters for which the Crown Court sentence seeks to punish the appellant. Since the hearing we have recalled our order quashing the committal on count 1, and thus a question might arise as to whether the sentence for arson might appropriately be increased to take account of the criminal damage associated with it. In the circumstances of the present case we do not think it would be appropriate to do so. In relation to the criminal damage on count 1 our order will be revised so as to impose no separate penalty. The sentences in the Youth Court 42. Our reasons for our order as a Divisional Court quashing the Youth Court sentences have been given above: there was no power in the Youth Court to impose sentences of detention. Under section 43(1) of the Senior Courts Act 1981 we do not quash the convictions in the Youth Court, but instead we substitute sentences which we arrive at after having regard to the principal aim of the youth justice system (to prevent offending by children and young persons), to the welfare of the appellant, and to the Definitive Guideline Overarching Principles – Sentencing Youths issued by the Sentencing Guidelines Council in November 2009. We replace the sentences for the offences on 22 to 23 May 2010 with the following: on offence 1, criminal damage (to the tyres), no separate penalty; on offence 2, possessing a bladed article, no separate penalty; on offence 3, assault occasioning actual bodily harm, a detention and training order for a period of 8 months; on offence 4, possession of an offensive weapon (the pool cue), a detention and training order for a period of 4 months, and on offence 5, threatening behaviour (the incident with the police), no separate penalty. For the offences on 27 and 30 May 2010 we replace the sentences with the following: offence 1, threats to kill, a detention and training order for a period of 4 months, on offence 2, affray, a detention and training order for a period of 4 months. All these sentences run concurrently to each other. They all commence with effect from 8 October 2010, and thus run concurrently with the replacement sentence of 2 years 6 months’ detention imposed by the Crown Court. Conclusion 43. Once Ms Thorne had advised that the extended sentence imposed on 8 October 2010 was wrong in principle and manifestly excessive the case needed to be progressed urgently. There was a real risk that if the appeal succeeded the sentence substituted by the court would involve a period in custody prior to release on licence which would by that time already have been exceeded. In the event, the appellant’s disruptive behaviour while in custody led to a further sentence being imposed. The result may be that the appellant has not served a significantly longer period in custody than would have been appropriate in the light of our decision. 44. It is particularly regrettable that in the present case, when HHJ Ross sought assistance from counsel then appearing, his attention was not drawn to the difficult questions which arose. It is at least possible that in that event some of the problematic features in the present case might not have arisen.

2012_07_17-3024.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1610/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1610

7e2aca9ccbbc7d4149db3928a943080b00b2b93020d174ed368053d7334880e0

[2014] EWCA Crim 1001

EWCA_Crim_1001

crown_court

Neutral Citation Number: [2014] EWCA Crim 1001 Case No: 201302373 C2 & 201304049 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE EXETER CROWN COURT (His Honour Judge Gilbert QC) Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/05/2014 Before : LADY JUSTICE MACUR MR JUSTICE BEAN and THE RECORDER OF CARDIFF (HER HONOUR JUDGE REES) - - - - - - - - - - - - - - - - - - - - - Between : KEVIN LIVERPOOL AND JUNIOR BRADSHAW Appellants - and - REGINA Respondent - - - - - - - - -

Neutral Citation Number: [2014] EWCA Crim 1001 Case No: 201302373 C2 & 201304049 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE EXETER CROWN COURT (His Honour Judge Gilbert QC) Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/05/2014 Before : LADY JUSTICE MACUR MR JUSTICE BEAN and THE RECORDER OF CARDIFF (HER HONOUR JUDGE REES) - - - - - - - - - - - - - - - - - - - - - Between : KEVIN LIVERPOOL AND JUNIOR BRADSHAW Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Simon Laws QC f or the appellant Liverpool Martin Meeke QC for the appellant Bradshaw S Morgan for the Crown. Hearing dates : 16 May 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Bean : 1. On 3 rd April 2013, following a trial at the Crown Court in Exeter before His Honour Judge Gilbert QC and a jury, the appellants were convicted of conspiracy to rob and murder the singer and songwriter Joss Stone. Liverpool (now aged 36) was sentenced to life imprisonment with a minimum term of 10 years 8 months for the conspiracy to murder with a concurrent determinate term of 10 years imprisonment for conspiracy to rob. Bradshaw (now aged 33) was sentenced to a determinate term of 18 years imprisonment for the conspiracy to murder with a concurrent term of 8 years for the conspiracy to rob. 2. At one stage Liverpool sought leave to appeal against conviction but following refusal by the single judge this was, quite rightly, not renewed and we say no more about it. Liverpool wrote a number of letters containing grounds of appeal of his own composition. We have considered them carefully but there is nothing in any of them. They have in any event been superseded by the grounds of appeal against sentence drafted by Mr Laws QC, who did not appear at the trial. Bradshaw also appeals against sentence on grounds drafted by Mr Meeke QC, who did appear at the trial. 3. The single judge granted leave to appeal against sentence to both defendants. In the case of Liverpool he wrote that “although no criticism can be made of the judge in treating you as dangerous and imposing a life sentence, in my view it is arguable that the minimum term, reflecting a notional determinate sentence of 25 years, is excessive.” The facts 4. Liverpool had an interest in music and researched different artists at a library in Manchester where he lived and where Bradshaw shared a flat with him. Liverpool recorded his thoughts and opinions in a notebook. Joss Stone was one of the artists who featured in the notebook. Liverpool’s notes suggest that he came to dislike her because she has performed at charity concerts attended by HRH Prince William and was a guest at his wedding. It is plain that Liverpool developed an obsession with Joss Stone. There are entries such as “rob and kill – Jocelyn RIP”, “body bags and rob equipment; look for river”, “find a river to dump her” and so forth. Between November 2010 and May 2011 Liverpool was in contact with another man by text message: the messages mentioned the plan to rob and kill Joss Stone. The recipient of the messages, who was asked to obtain a vehicle and weapons, did not respond. 5. Joss Stone owned a property in a small village southwest of Taunton. Before she left it in 2008 she made a video which, among other things, showed the outside of the house and her distinctive pink car with a white roof parked outside it. This was freely available to view on the internet. By 2011 she had moved to a different village, located in East Devon. 6. In May 2011 the appellants bought a car. In early June they bought a hammer and some gaffer tape. There was evidence before the jury that in the first half of June they made reconnaissance trips to Devon and drove slowly around what they believed to be the approximate location of Ms Stone’s home and also that of her father who lived in Exeter. 7. On 13 th June 2011 they loaded two hammers, the gaffer tape, a metal spike, a lock knife, some gloves and a balaclava together with some maps and directions and Liverpool’s notes into their car and set off in the early hours to drive from Manchester to Devon. At about five o’clock in the morning the car crashed into a digger and some railings at services of the M5 just north of Bristol. Police attended. It became apparent that Bradshaw had been driving and that he had no licence or insurance. The car was badly damaged. The police told Bradshaw he would be reported for driving without a licence or insurance. They left without seizing or searching the vehicle, which did not look as though it could be moved without assistance. However, the appellants managed to get the vehicle back on the road and continued their journey. 8. Between 7:45 and 9:30 that morning a number of people saw the car, which was badly damaged and had its front number plate hanging down loosely, being driven in a suspicious manner in the area of Ms Stone’s home and surrounding villages. The appellants stopped and asked a postman for directions. They produced a picture of Joss Stone and asked where she lived. As Mr Laws observed in his submissions to us, East Devon is not an ethnically diverse part of the country, and two black men emerging from a badly damaged car to ask for directions would have been especially conspicuous. 9. Police were alerted and stopped the car in Cullompton. They searched the vehicle and found a hosepipe and a samurai sword in the boot. Inside the car they found the hammers, metal spike, balaclava, lock knife and other items to which we have referred and which were menti oned in Liverpool’s notes. The sentence on Liverpool 10. When the jury returned their verdicts counsel then appearing for Liverpool asked the judge not to adjourn for reports but to pass sentence that day. In doing so the judge said:- “ It is clear from your text messages on your telephone that from as early as November 2010 you had been planning to rob someone of what you hoped would be according to your texts in excess of a million pounds, for which purpose by January 2011 you wanted a semi-automatic handgun and for which purpose you had identified Joss Stone as the target. You had no reason to target her, except that you assumed that she would be a wealthy young woman, as she was a successful singer, and as you thought that she was a friend of a member or members of the Royal Family that she would be in a position to deliver you money of that sort by way of robbery. You intended to rob her and then kill her, before dumping her body in a river, according to your notes, and then leaving the country with the money, and with your friend and accomplice, your co-defendant Junior Bradshaw. All that is apparent from your own documents, which the police found. The evidence discloses that this was your scheme, in which only you and Bradshaw in my judgment were proved to be involved, and in my judgment based upon the evidence, that it was your scheme, to which you recruited Junior Bradshaw to help you. It may have been, to put it colloquially, a crazy scheme of a crazy person, and one which was very likely to fail at least to the extent that she would not have had anywhere near that sum of money available to you to take, but your writings and what you did, and what you took with you from Manchester to Devon, show that it was as far as you were concerned a very real plan, which you intended to carry out. You drove to Devon with Junior Bradshaw, armed with a samurai sword, two hammers, two balaclavas, some gloves, some gaffer tape, and maps of where Joss Stone lived, and directions even identifying that she had a pink car with a white roof in front of her house, which we saw on the video shown to the jury was indeed correct, albeit at her previous house. You demonstrated by your continuing on your journey to Devon, even after your car was severely damaged at Maplewood Service Station in Gloucestershire, your determination to carry out your plan. Fortunately you took the wrong exit it would seem, and as you have said at one stage, off the M5, by leaving at junction 28 rather than junction 27, and became lost in the lanes south of where Joss Stone lived. And you and Bradshaw were arrested then as a result of the alertness of some people in Cullompton, who saw you they thought behaving suspiciously, and I commend them for the alertness. You had also been in Devon, I conclude, on 27th May. Whether that was for reconnaissance, or for a real journey, only you and Bradshaw know. It is noticeable that on that first date Joss Stone had gone abroad earlier in the day before you got to Devon, so she was not at home. By their verdicts the jury have stated that they are satisfied that it was your intention to kill her in order to rob her and then escape detention. She was a random target, whom you chose because she was a popular singer, whom you though would be very wealthy and therefore a suitable target for your plans. For all those reasons I regard you as a very dangerous man. Conspiracy to commit murder is a specified offence within Schedule 15 of the Criminal Justice Act 2003 , and is punishable with life imprisonment. I consider that there is a significant risk to members of the public of serious harm occasioned to you of further offences, and I consider that the seriousness of this offence is such as to justify the imposition of a sentence of imprisonment for life; and so I do. In considering the minimum term for Count 1, I look at the guidelines issued by the Sentencing Guidelines Council for offences of attempted murder. This was a Level 1 offence under those guidelines, as had the charge been murder it would have come within paragraph 5(2)(c) of Schedule 21 of the Criminal Justice Act 2003 , with a starting point of 30 years. This was a case which I put in the middle bracket of Level 1, a starting point of 20 years, with a range of 17 to 25 years. Bearing in mind that you were armed with a samurai sword and other weapons, including in total three knives, which you intended to use for the purpose of killing Joss Stone, this case also causes me to have attention to Section 5 (a)(1) of the Act as well.” Therefore, the sentence that I pass upon you is one of life imprisonment on Count 1, with a minimum term which you will serve, which I establish at ten years and eight months, calculated by starting at 25 years, taking into account that you have been in custody for 22 months since your arrest in June 2011. Life imprisonment is what it says; it is an indefinite sentence, from which you will not be released until you are considered safe for release, and in any event not before you have served ten years and eight months from today. On Count 3, the conspiracy to rob, ten years concurrent.” 11. Reports were obtained on Bradshaw, who was sentenced on 9 th July 2013. We shall return to his appeal later. 12. On behalf of Liverpool Mr Laws QC submits a) that the judge was wrong to impose a sentence of life imprisonment; b) that a notional determinate term of 25 years imprisonment arrived at by reference to the Sentencing Guideline Council’s attempted murder guideline was too long and used the wrong category within that guideline; and c) the notional determinate term should in any event have been reduced to reflect the offender’s mental disorder which lowered his degree of culpability. 13. On 4 th March 2014 Lord Thomas of Cwmgiedd CJ, giving the judgment of this court in Burinskas [2014] EWCA Crim 334 , gave authoritative guidance on the proper approach to the imposition of life sentences (for offences other than murder) under the Criminal Justice Act 2003 , as most recently amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012:- “9. Section 225 of the CJA 2003 applies where a person is convicted of a serious offence after 3 December 2012 and the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. S.224 of the CJA defines a specified offence and a serious offence: ” i) An offence is a serious offence within the meaning of Chapter 5 if it is a specified offence and is punishable by imprisonment for life (s.224 (2)). ii) A specified offence means a specified violent offence as set out in Part 1 of Schedule 15 to the CJA or a specified sexual offence as set out in Part 2 of Schedule 15. Serious harm means death or serious personal injury, whether physical or psychological (s.224 (3)). 10. If s.225 applies on the basis to which we have referred in the preceding paragraph, then s.225(2) provides that if (a) the offence is one where the offender would be liable for imprisonment for life and (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life or in the case of a person aged at least 18 but under 21, sentence of custody for life. Where the sentencing judge is satisfied in the exercise of his judgment that an offender is dangerous and that the two conditions at s.225(2) (a) and (b) are met, there is no discretion. He must pass a life sentence. …… 22. 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. Mr Laws accepts that paragraph 22 of Burinskas requires the court to make a composite decision on seriousness taking into account all the factors listed. 15. We should note in the present case that Liverpool has only previously received custodial sentences of very short length for bail offences and non-custodial sentences for blackmail, battery, having a bladed article and affray. He has not been convicted of any listed offences and therefore Section 224 A of the 2003 Act as amended in 2012 (generally known as the “two strikes” provision) does not apply. 16. We have available to us reports from Dr Parker and Dr Beales, which were in possession of the defence at trial but were (understandably) not placed before the judge; and, following a direction by the single judge, a recent report from Dr Lucy Bacon as well as two pre-appeal reports from Ms Jane Mitchell, an offender manager who has supervised the defendant for some time. 17. Dr Parker’s report, dated 12 th October 2011, stated that Liverpool poses a high risk of future violence. He meets the criteria for a diagnosis of paranoid schizophrenia and cannabis dependence. His condition was then stable but any deterioration in his mental state, exacerbated by non-compliance and cannabis misuse would heighten the risk. His mental health problems rendered him more prone to antisocial conduct but in Dr Parker’s opinion psychosis was not the main factor behind his offending. He described the appellant as a man charged with serious offences who happened to have schizophrenia, rather than a man charged with serious offences which occurred because of his schizophrenia. He did not require hospital treatment. Compliance with treatment and abstinence from cannabis would reduce the risk. 18. Dr Beales, who reported on 16 th April 2012, found clear evidence that the appellant suffered from a mental disorder, most likely paranoid schizophrenia, although he was fit to plead and stand trial. He had shown a positive response to treatment and had only required one relatively brief hospital admission. His response to treatment was complicated by continued use of cannabis and intermittent non-compliance with medication. His condition deteriorated in custody. In Dr Beales’ opinion he had become non-compliant with medication in order to increase the likelihood of a transfer out of custody; but appropriate treatment was available in custody and there was nothing to indicate that a transfer to hospital was required. Dr Beales, like Dr Parker, found no clear evidence that the offences in any way related to the appellant’s mental disorder. 19. Dr Bacon’s psychiatric report dated 8 th January 2014 took a somewhat different view. Unlike her predecessors, Dr Bacon had had access to the appellant’s exten sive writings. These suggested, in her view, that it is highly likely that he was experiencing psychotic symptoms “with content relating to Joss Stone” in the period leading up to the offences and that there was a definite link between his mental disorder and the offences. Had Dr Parker and Dr Beales had access to the appellant’s extensive writings, she wrote, it might have affected their conclusions about the link between his illness and his offending. She agreed, however, that as matters stood in January 2014 he could be treated in prison without a transfer to hospital. 20. Ms Mitchell prepared one report after sentence on 15th July 2013 and another for the purposes of the appeal dated 18th February 2014. In the earlier report she expressed full agreement with Dr Parker’s view that there was a high risk of future violence; that the seriousness of the offences indicated a high risk of serious harm; and that the appellant’s mental illness was not the driving factor behind the offences. In her recent report she noted that deteriorating mental health due to cannabis misuse leading to disengagement from treatment was a problem, but the appellant had a good insight into his illness and sought appropriate assistance when his symptoms worsened. She noted Dr Bacon’s view but observed that it is “hard to find a coherent explanation for the weapons in the vehicle being driven near to Joss Stone’s address”. 21. In the light of this formidable body of evidence Mr Laws realistically accepted that he cannot argue against the judge’s finding that the appellant is dangerous, that is to say that he poses a high risk of serious harm to members of the public. We agree. Mr Laws submits, however, that this conspiracy, clumsy and badly planned as it was, was not so serious as to qualify his client for a life sentence. 22. We cannot accept this submission. A conspiracy to murder using this array of weapons, and persisted in even after the setback of the damage to the car, is in our view plainly of sufficient seriousness in itself to bring the case within the guidance set out in paragraph 22(i) of Burinskas. When coupled with the finding that the appellant poses a high risk of serious harm to the public, it leads to the clear conclusion that a life sentence was justified. 23. Mr Laws points out that there was an alternative available to the judge, namely an extended sentence, which would still provide a substantial measure of protection to the public. But Dr Bacon takes the view that the links between Mr Liverpool’s mental disorder and his acti ons on the day of the offence “will require exploration over time to gain a full understanding of his future risk”; and Ms Mitchell writes that “it may be that those working with Mr Liverpool will need a number of years in order to establish whether behaviour demonstrated some two years ago was led by fantasy or driven with purpose”. Given the seriousness of the offence itself; the level of risk to the public; and the very real difficulty of the experts and the Probation Officer in the case in predicting wh ether, if at all, the appellant’s condition will improve, we cannot say that an extended sentence would suffice. 24. We therefore dismiss Liverpool’s appeal insofar as it challenges the imposition of a sentence of life imprisonment. 25. We turn to the issue of the minimum term. The judge took a notional determinate term of 25 years. This then falls to be reduced by half (to take account of the fact that there is no remission credited against the minimum term attached to a life sentence) and is then reduced to reflect time spent on remand in custody prior to sentence in the Crown Court, which in this case was 22 months. The judge’s calculation was therefore: notional determinate term 25 years; half of that equals 12½ years from the date of remand in custody; the formal order of the court therefore specified a minimum term of 10 years 8 months from the date of sentence. 26. There is no guideline for cases of conspiracy to murder but in many cases the attempted murder guidelines can be applied by analogy. Indeed, in his sentencing remarks the judge referred to them. Level 1 applies where the murder which was attempted was of the most serious kind, including those which, if the murder had been carried out, would have fallen within paragraphs 4 and 5 of schedule 21 to the Criminal Justice Act 2003 . 27. We consider that the judge was correct to treat this as a Level 1 offence. Although had the murder been carried out it would probably have been with a weapon other than a firearm taken to the scene, and thus falling within paragraph 5A of schedule 21 (which did not exist at the time of the attempted murder guideline) rather than paragraphs 4 or 5, it would nevertheless have been one which could properly have been regarded as being of the most serious kind. 28. Within Level 1 there are three categories:- a) Serious and long term physical or psychological harm: starting point 30 years, sentencing range 27-35 years. b) Some physical or psychological harm: starting point 20 years, sentencing range 17-25 years. c) Little or no physical or psychological harm: starting point 15 years, sentencing range 12-20 years. 29. The judge placed the case in the middle category, that is to say where the intended victim has been caused some physical or psychological harm. With respect, we do not understand on what basis he did so. There is no reference in his sentencing remarks to any victim impact evidence or statement and both Mr Meeke QC and Mr Morgan, who were present at the trial, have confirmed that no such evidence was provided. On the contrary: Ms Stone, who briefly gave evidence for the prosecution in the course of the trial, did not hear of the conspiracy until after the defendant’s arrest and when asked what the consequences had been for her told the jury that she was now careful not to leave the door unlocked when she went out. Plainly she did not suffer physical harm, and it was not suggested to the judge that she had suffered psychological harm. She has continued her successful career. 30. In those circumstances we consider that the correct starting point, whether for attempted murder or conspiracy to murder, was a notional determinate term of 15 years. We also accept the submission of Mr Laws that there should be some reduction from that starting point to reflect the offender’s mental illness although we d o not consider that such reduction should be very great. We take the view that the correct notional determinate term in Liverpool’s case was 13 years. Applying the same calculation as the judge was required to make, this results in a minimum term of 6½ ye ars from the appellant’s arrest and remand in custody, and a formal order of the court specifying a minimum term of 4 years and 8 months from the date on which the judge passed sentence. The concurrent determinate term for the conspiracy to rob will be red uced to 7 years’ imprisonment. 31. We wish to emphasise that we are not ordering that the appellant is to be released in December 2017. Far from it. The significance of the minimum term is that it specifies that the Parole Board will only be able to consider for the first time in late 2017 whether the appellant can safely be released. The assessment of future risk is a matter for the Parole Board and not for this court. We have already noted the many references in the reports on Liverpool to the need for him to be observed for a substantial period of time before a conclusion can be reached on the level of risk which he poses. The purpose and effect of a sentence of life imprisonment is that if it is never considered safe for the offender to be released, he may remain detained for life, and that if he is ever released it can only be on licence and subject to supervision. The sentence on Bradshaw 32. We turn to the case of Bradshaw. He has appeared before the courts on 21 previous occasions for a variety of offences, none of them of sufficient gravity to impact upon the proper sentence in the present case. He is of exceptionally low intellectual capacity, with an IQ of 65. As the judge noted, he did know what Liverpool was intending to do and the jury’s verdict sho wed that he shared the intention to rob and kill. But, as the judge also noted, and has never been in dispute, Liverpool was the instigator and Bradshaw was the foot soldier; and had he been more intelligent he would have realised that the chances of a successful and profitable robbery were so remote as not to be worth attempting. 33. A report of 4th July 2012 prepared by Dr Jenkins found that Bradshaw suffered from hebephrenic schizophrenia in which mood changes and inappropriate and unpredictable behaviour were prominent. At that stage Dr Jenkins took the view that Bradshaw was unfit to plead but three weeks later he found that Bradshaw had improved with anti-psychotic medication and was now fit to plead. Dr Latham, on 29th July 2012, found that Bradshaw was on balance fit to plead and agreed with the diagnosis of schizophrenia. Later reports from Dr Latham and Dr Alcock recommended a hospital order with restrictions, however, a report dated 4th July 2013, five days before sentencing by Dr Owens said that Bradshaw’s psychotic illness was in remission and that it was clear that admission to a high security unit was not required since the illness was not such of a nature or a degree to warrant such attention in a hospital. The judge concluded that although “it was a close run thing”, Bradshaw should not be classified as a dangerous offender within the terms of the 2003 Act . 34. Mr Meeke QC submits that the judge took too high a starting point in Bradshaw’s case, as he had with Liverpool; and emphasises in particu lar his client’s very low IQ, and the judge’s finding that he was only a “foot soldier”. 35. We consider that in the light of the reduction we have made to the minimum term in Liverpool’s case and the judge’s finding, which w as clearly correct, that Bradshaw was to be treated as a “ foot soldier ” , a reduction in his sentence should likewise be made. We quash the sentence on count 1 of 18 years imprisonment and substitute one of 10 years imprisonment (the effect of which is likely to be that he will be released on licence five years from the date of his arrest and remand in custody). The concurrent term on count 2 is reduced to one of 5 years’ imprisonment. 36. To the extent we have stated, these appeals are therefore allowed.

2014_05_20-3420.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1001/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1001

b26b647e9830a66b39d505ecd83e0592bf87ac7953c0314e5676d236d0d45a1e

[2012] EWCA Crim 1761

EWCA_Crim_1761

crown_court

Case No: 2012/01743 Neutral Citation Number: [2012] EWCA Crim 1761 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT BIRMINGHAM HIS HONOUR JUDGE BURBIDGE QC T2011/7776 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2012 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE MACKAY and MR JUSTICE SWEENEY - - - - - - - - - - - - - - - - - - - - - Between : HAMESH GUL Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 2012/01743 Neutral Citation Number: [2012] EWCA Crim 1761 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT BIRMINGHAM HIS HONOUR JUDGE BURBIDGE QC T2011/7776 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2012 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE MACKAY and MR JUSTICE SWEENEY - - - - - - - - - - - - - - - - - - - - - Between : HAMESH GUL Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr G A Russell for the Appellant Mr Duncan Penny for the Respondent Hearing dates: 19 th July 2012 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. On 6 June 2010, during the course of a visit to his nephew, Hamesh Gul (the appellant) attempted to smuggle a small package of heroin into prison. On 15 April 2011 he was convicted of an offence of possession of a controlled drug of Class A with intent to supply and sentenced to 4 years imprisonment. At the start of his sentence he smuggled a package containing drugs into HM Prison, Birmingham. Four days later, on 19 April 2011, the package was discovered. It contained substantial quantities of three different controlled drugs, methadone, diazepam and temazepam. 2. The appellant was charged with an offence contrary to s.40(1)(b) of the Prison Act 1952 of conveying “list A articles into a prison”. This offence is an indictable only offence. On 25 August 2011 he appeared before the Birmingham Magistrates Court. He was sent for trial on that charge, pursuant to s.51 of the Crime and Disorder Act 1998 (the 1998 Act). 3. On 16 December 2011 the draft indictment had been prepared. It contained six counts. Three counts alleged possession of controlled drugs with intent to supply. The drugs in count 1 were of Class A, and in counts 2 and 3 of Class C. Three further counts alleged simple possession of the same drugs. None of the offences was an indictable only offence. Following amendment of the bill to correct errors in the appellant’s name and the classification of the controlled drugs particularised in the counts, the indictment was signed at a plea and case management hearing before HH Judge Thomas QC. When the indictment was put to the appellant, he pleaded guilty to the three counts of simple possession, but not guilty to the remaining counts. The case was adjourned for trial. 4. On 23 February 2012 in the Crown Court at Birmingham before His Honour Judge Burbidge QC and a jury the appellant was convicted of the three counts of possessing controlled drugs with intent to supply. He was sentenced to 4 years imprisonment on count 1 and 2½ years imprisonment on counts 2 and 3, the sentences to run concurrently. A number of other orders were made, but they need no recital. 5. The present appeal against conviction requires attention to be focused on events at the plea and case management hearing, and in particular, non- compliance with the procedural requirements laid down by paragraph 7 of Schedule 3 of the 1998 Act. No other ground of appeal is advanced, and in particular no criticism is made of the trial judge, or any aspect of the trial. The question is whether the proceedings which culminated in these convictions were a nullity with the inevitable consequence that convictions must be quashed. 6. The submission that they were indeed a nullity, carefully advanced on behalf of the appellant by Mr Russell, starts with the undoubted fact that although the appellant was sent to the Crown Court for trial on an indictable-only offence, no indictable-only offence was included in the indictment when it was signed. At the plea and case management hearing the procedure to determine what is sometimes described as the mode of trial – that is trial on indictment or summary trial - as required by Schedule 3 to the 1998 Act was not followed. That is why, he argues, the subsequent proceedings were a nullity. Paragraph 7 of Schedule 3 to the 1998 Act 7. Paragraph 7(1) requires that (subject to cases involving children or young persons, which does not arise here) “… where – (a) a person has been sent for trial under section 51 of this Act but has not been arraigned; and (b) the person is charged on an indictment which (… for any … reason) includes no offence that is triable only on indictment”. 8. When these conditions are present, as they were here, the relevant procedures are prescribed. The accused must be present in court. Each count of the indictment that charges an offence triable either way is to be read to the defendant. Paragraph (4) then provides: “The court shall then explain to the accused in ordinary language that, in relation to each of those offences, he may indicate whether (if it were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty the court must proceed as mentioned in sub-paragraph (6) below.” Next, the defendant must be asked whether he would plead guilty or not guilty if the offence charged in the count in the indictment were to proceed to trial. 9. Paragraph 6 provides that: “if he indicates that he would plead guilty, the court shall proceed as if he had been arraigned on the count in question and had pleaded guilty” Where the accused indicates that he would plead not guilty, or fails to indicate how he will plead, paragraph 7 then requires that: “… the court shall consider whether the offence is more suitable for summary trial or for trial on indictment.” Paragraph 7 does not apply if the defendant has indicated a guilty plea to all counts: if so, paragraph 6 would apply and there would be no subsequent trial, whether summary or on indictment. 10. The provisions in paragraph 7(7) are developed in paragraph 9. When the court is considering the question whether an offence is more suitable for summary trial or for trial on indictment, paragraph 9(2) provides: “Before considering the question, the court shall afford first the Prosecutor and then the accused an opportunity to make representations as to which mode of trial would be more suitable.” 11. Assuming that has been done, the court addressing the question is required to have regard to, among other factors, “any representations made by the Prosecutor or the accused”. It is also to have regard to the nature of the case; whether the circumstances make the offence one of a serious character; whether the punishment which a Magistrates Court would have power to impose for it would be adequate; and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other. 12. If, after appropriate reflection, the court considers that an offence is more suitable for summary trial rather than trial by jury, the defendant must be put to his election. It is perhaps worth noting that this stage in the process is not a matter of entitlement: the issue does not arise until the court itself has decided that the offence is appropriate for summary trial. If however the Crown Court considers that the offence is more suitable for trial on indictment, then the defendant is so informed, and the Crown Court retains its functions and proceeds accordingly. 13. In the Crown Court at Birmingham on 16 December 2011 the plea and case management hearing did not address the issue whether summary trial or trial on indictment was not appropriate. It followed that the appellant was not afforded the opportunity to make representations about the mode of trial, and the Crown Court did not explain whether it considered the case was suitable for summary trial or trial on indictment. This non-compliance with the provisions of paragraph 7 of Schedule 3 was plainly inadvertent. No one at the Crown Court spotted the omission, perhaps because the appellant had been committed for trial on a single indictment-only offence, perhaps because by pleading guilty to some of the offences in the indictment the case would have to remain in the Crown Court and perhaps, too, however one examined the facts alleged against him, they were plainly far too serious to be appropriate for summary trial. Nevertheless, although it is not possible to discern, and Mr Russell did not suggest, that this non-compliance caused any prejudice to the appellant, if he is right that it resulted in a trial which was a nullity, the conviction cannot be allowed to stand. 14. The problems which arise in this case have already been considered in this court. In Haye [2002] EWCA Crim. 2476 the procedure required by paragraph 7 of Schedule 3 was not complied with when the appellant, having been sent to the Crown Court under s.51 for an offence of robbery was indicted and convicted of a single count of theft. It was conceded by the Crown that in consequence the proceedings were a nullity. After reflecting on the equivalent provisions in the Magistrates Court Act 1980, on which Mr Russell focused our attention his argument, on the basis that the defendant should have been informed of his rights and was not, this court agreed. The conviction was quashed. Haye was followed in Gayle [2004] EWCA Crim. 2937 (where the defendant was convicted on an indictment containing a single count of assault occasioning actual bodily harm). Counsel for the Crown agreed that the trial was a nullity, and the court endorsed his concession. 15. There was no merit in either appeal. The convictions were quashed on purely technical grounds. Not long afterwards the approach of this court to procedural defects of a technical nature was examined, in the context of confiscation proceedings, by this court in Sekhon [2003] 1 WLR 1655 and in the House of Lords in Soneji [2006] 1 AC 340 . The essence of these decisions is encapsulated in the headnote to Soneji that: “The correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was the purpose of the legislature that an act done in breach of that provision should be invalid … ”. 16. The result was the adoption by the courts of a much looser or less rigid approach to procedural failures. In Ashton and Others [2007] 1 WLR 181 this was explained in terms of defects which could fairly be described as procedural in contrast to those which went to jurisdiction. Draz was one of the cases considered in the judgment. The defendant was wrongly sent for trial under s.51 of the 1998 Act when he should have been committed for trial. The procedure in paragraph 7 of Schedule 3 was followed, but the issue for the Court of Appeal arose from the decision of the judge that it was unnecessary for the indictment to be preferred, and that even if it should have been preferred, it would not have been fatal to the validity of the proceedings that the indictment had not been signed. The court expressed the “confident” view that if Haye had been decided after Soneji and Sekhon the conviction would not have been quashed. The same reasoning would have undoubtedly been applied to Gayle . 17. In Thwaites [2006] EWCA Crim. 3235 this court considered a committal for trial for an indictable-only offence, followed by an indictment containing a number of counts all of which where either way offences. The defendant pleaded not guilty to all the counts. The procedure in paragraph 7 of Schedule 3 was not followed. In short, it directly addressed the question which arises in this appeal. The court took the view that it was bound not by the decisions in Haye and Gayle , but the decision in Ashton . This approach was preferred, first, because Ashton had been decided in the light of the decisions subsequent to Haye and Gayle in the House in Lords in Soneji and this court in Sekhon , and second, by reference to the decision in this court in Clarke and McDaid [2006] EWCA Crim 1196 where, in the context of an unsigned indictment, and applying Ashton , it was held that the proceedings were not automatically to be regarded as invalid because the indictment had not been signed. As everyone knows, the decision of the Court of Appeal in Clarke and McDaid was revisited in the House of Lords [2008] 1 WLR 338 . 18. The House of Lords decided that the Administration of Justice (Miscellaneous Provisions) Act 1933 led to the inexorable conclusion that a duly signed indictment was an essential pre-requirement to a valid trial. The statutory provision indicated that without a properly signed indictment the subsequent trial and verdict were nullities. When procedural errors (including failures or omissions) occurred, the answer to the question whether the processes subsequent to the errors were nullified depended on the intention of the legislation. Thus it was “inescapable” that in the 1933 Act “Parliament intended that the bill should not become an indictment unless and until it was signed by a proper officer … (and) that there could be no valid trial on indictment if there were no indictment”. Nevertheless a number of different cases arising from errors relating to indictments fell “squarely into the procedural category” without invalidating the subsequent trial. Criticism of the decision in Draz did not arise from the fact that the procedure under s.51 of the 1998 Act was not followed, but it was underlined that, in effect as a matter of jurisdiction arising from an unequivocal statutory provision, a signed indictment was an essential prerequisite to the trial. The decision represented a salutary warning that not all procedural errors and omissions could be brushed aside merely because the defendant was unable to demonstrate some level of prejudice consequent on them. 19. In our judgment, in view of the reasoning in Clarke and McDaid in the House of Lords and the observations about the way in which the decisions in Sekhon and Soneji should be approached, Hayes and Gayle require re-examination. We cannot without further reflection rely on the approach taken in Thwaites , which at least in part, was based on Ashton , which it now emerges is no longer of the broad application suggested when Ashton was decided in this court. We must, we believe, return to first principles and ask ourselves whether, when properly examined, there was non-compliance with paragraph 7 of Schedule 3, and if there was, we must then address the question whether Parliament intended the consequence of non-compliance with these provisions to render any subsequent proceedings a nullity. 20. This case was properly submitted to the Crown Court under s.51 of the 1998 Act. The indictment was duly prepared and signed. The counts in the indictment identified the offences with which the defendant was charged. The offences arose from precisely the same facts and were based on the same evidence as the single indictable-only charge which founded the committal. In effective accordance with paragraph 7 of Schedule 3, the defendant was asked whether he would plead guilty or not guilty to each of the counts in the indictment. He indicated by his pleas that he would plead guilty to the three lesser counts. That meant, in accordance with paragraph 6, that the court had to proceed in relation to those three counts as if he had been arraigned and pleaded guilty to them in the Crown Court. There was no question of summary trial of these counts. 21. Once the defendant had pleaded guilty to the lesser offences the case was bound to remain in the Crown Court. Of itself, that brought any possibility of summary trial to an end and therefore had the same effect as the presence on the indictment of an indictable only offence. The idea that proceedings in the same case, arising out of the same subject matter, should be addressed in separate jurisdictions (the Crown Court and the Magistrates Court) seems utterly remote. In our judgment on these facts non-compliance with the objective of paragraph 7 of Schedule 3 is not established. 22. We shall, however, assume for present purposes that this conclusion is wrong. On their particular facts it would not in any event have applied to the decisions in Haye or Gayle or indeed Thwaites . 23. The responsibility for considering whether any counts in the indictment to which the appellant pleaded not guilty, or was treated as if he had so pleaded, were more suitable for summary trial or trial on indictment is vested exclusively in the court. The entitlement of the defendant is to make submissions in support of summary trial if he wishes to do so, but the defendant does not enjoy an unfettered entitlement to summary trial. The ultimate decision must be made by the court. If however the defendant wishes to be tried summarily and the court has failed to give him the opportunity to ask for it, there is nothing in the procedure which prevents an application by him to that effect. In short, in the final analysis it is for the court, not the defendant or the prosecution, to determine whether summary trial or trial on indictment seems most appropriate. What the defendant enjoys at that stage is a right to be heard when the issue is addressed. If the decision is made by the Crown Court that the case is more suitable for summary trial, only then does the defendant have the right to elect trial by jury. He has no corresponding right to elect summary trial. 24. Assuming, as we have done, that the option of summary trial was available, and therefore that its suitability should have been considered by the Crown Court, it was a failure of process for the court not to seek representations from the defendant or the prosecution on the issue. If the omission had been a deliberate step, designed to circumvent the provisions in Schedule 3 and so deprive the defendant of summary trial which might realistically have been available, this might have constituted an abuse of process. That however is not this case. In the end, the complaint here is no more and no less than that the defendant, like the prosecution, was not invited to make representations about the mode of trial. Thereafter no application to do so was made. The omission of that procedural step did not vitiate the indictment or the process before the Crown Court. In our judgment if Parliament had intended that the deprivation of the opportunity to a defendant sent to trial under s.51 of the opportunity to elect for summary trial for the either way offences included in the indictment, it would have left the choice of summary trial entirely to the defendant by vesting an unequivocal right in him. It did not do so. What is more, any defect in the process, which meant that the defendant was not invited to make submissions about the possible suitability of summary trial was readily curable: the defendant could and should have made an appropriate application. In these circumstances, with a remedy available to the defendant, it is inconceivable that Parliament intended that the consequence of non-compliance would be to render subsequent proceedings in the Crown Court a nullity. 25. Three serious offences of possession of drugs in prison with intent to supply plainly required trial in the Crown Court. It has never been suggested that, given the option, either he or the prosecution, would have sought trial before the Magistrates Court, and he did not do so 26. These proceedings were not nullified by the flaw in the process in the Crown Court on 16 December. No further basis for setting aside the conviction has been suggested. The appeal against conviction is dismissed. Sentence 27. There is a renewed application for leave to appeal against sentence. In support of this application it is suggested that the order that the sentence to be served for the offence committed on 19 April 2011 should run consecutively to the sentence which the appellant started to serve on 15 April 2011 was excessive, both in itself, and in the light of a medical report about the appellant’s respiratory condition, which we have considered. 28. The difficulty with this submission can be readily explained. The applicant was sentenced to imprisonment for taking drugs into a prison. On the day he was sentenced for this offence, presumably having obtained the drugs while on bail, pending verdict and sentence, he chose to take more drugs into a different prison. The misuse of drugs in prison remains a very serious problem. Sentences following conviction are severe. The second offence was committed with full knowledge of the seriousness attached to it. A consecutive sentence was rightly passed, and, given the circumstances, we cannot see that the four year additional sentence was arguably excessive. Accordingly the application is refused.

2012_07_31-3032.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1761/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1761

7b28113d194a46de12cfb94032323e7bd5c8be6f50dc1c4b43ab3aca34fdb600

[2019] EWCA Crim 1131

EWCA_Crim_1131

crown_court

Neutral Citation Number: [2019] EWCA Crim 1131 No: 201901648/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 12 June 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE MARTIN SPENCER HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) R E G I N A v MOKA BUSBY Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Offici

Neutral Citation Number: [2019] EWCA Crim 1131 No: 201901648/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 12 June 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE MARTIN SPENCER HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) R E G I N A v MOKA BUSBY Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (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 L Thompson appeared on behalf of the Appellant J U D G M E N T (Approved) MR JUSTICE MARTIN SPENCER: 1. With leave granted by the single Judge, the appellant appeals against a sentence of 15 months' imprisonment imposed at the Crown Court at Oxford on 17 April 2019 for an offence of administering a poison or noxious substance with intent, contrary to section 24 of the Offences Against the Person Act 1861 and a sentence of one month's imprisonment for possessing Clonazolam. 2. The facts of this matter are that in December 2017 the appellant had fallen out with her mother and had been made homeless and was living temporarily with her father, along with her father's partner, her younger half-brother and the victim, Jonathan Deacon who was the son of her father's partner from a previous relationship. As there was a lack of bedroom space, the appellant was sleeping in the living room. 3. On 13 December 2017 the appellant and Jonathan Deacon had an argument over the fact that Mr Deacon wanted to use the living room to watch television whilst the appellant wanted to go to sleep. Jonathan Deacon had a habit of having a two-litre bottle of Coca Cola from which he would drink periodically during the course of the day. On 14 December 2017, whilst Mr Deacon was out shopping, the appellant spiked his Coca Cola bottle with a drug called Clonazolam, a synthetic Benzodiazepine. When Mr Deacon returned home, he resumed drinking from the bottle. At one point he stood up in order to clear ice from the road outside and found that he was very unsteady on his feet. He felt lightheaded and clammy. He fell over twice and had difficulty standing back up. He felt drunk. His family called an ambulance. When the paramedics arrived, Jonathan Deacon was sleepy and lethargic and slurring his words. The appellant at that stage apparently realised the seriousness of what she had done and she told Miss Lindsey, her father's partner (Jonathan Deacon's mother), what she had done, saying: "You're going to hate me but I put something in his drink to make him go to sleep." Miss Lindsey, was horrified and immediately said: "Go and get it whatever it is you have given him." The appellant then produced a blue bottle which she handed to the paramedics who were thus able to identify what it was and it was taken to the hospital so that those treating Mr Deacon there knew what he was suffering from. 4. Fortunately, Mr Deacon did not suffer any permanent ill-effects from the poisoning. In a Victim Personal Statement he revealed that he suffered from mental ill-health issues, with which he battles, but he did not feel that what the appellant had done had exacerbated his mental ill-health. He also confirmed that there had been no long-term physical effects from the incident: all he has been left with is a small scar from the cannula which was inserted when he was taken to hospital. In this statement made on 6 March 2019, he generously said that he did not want the court to make a Restraining Order. He said: "As her brother and dad live with us, I don't want to affect their close relationship." He said that he would possibly be open to talking with the appellant if she wanted to explain. He hoped an explanation might help him to move forward. He said: "I do not want Moka to go to prison. I just want her to get the help she needs." 5. The appellant pleaded guilty on 1 March 2019 and was sentenced on 17 April 2019. In a pre-sentence report, the appellant was said to accept responsibility for the offences and to have expressed remorse for her actions. The author said: "It is difficult however to fully analyse her offending behaviour as she claims to have no memory of putting the Clonazolam into the bottle which her step-brother was drinking from." The author said that the appellant recognised the seriousness of her offending and of the harm which could have been caused to Mr Deacon. The author stated: "The index offence is indicative of impulsive thinking and her mental health diagnosis of emotional unstable personality disorder renders Miss Busby at increased likelihood of failing to consider the consequences of her behaviour on others. Although personality disorders are typically treated by long-term therapy, I assess that Miss Busby would also benefit from exploring her offending behaviour by the imposition of a rehabilitation activity requirement. She has indicated a willingness to engage with this intervention." 6. The court also had available to it a psychiatric report from Dr Alcock reflecting an assessment made by him on 14 March 2019. Dr Alcock related the difficult upbringing which the appellant had experienced, as well as her long-standing history of problems with mental health. He related that the appellant had also told him that she was "deeply sorry" for what occurred and "felt terrible" about what she had done. He diagnosed an Emotionally Unstable Personality Disorder within the ICD classification. 7. Sentencing the appellant, the learned Judge referred to the unknown risk, what was called 'the gamble', which the appellant had taken in administering this drug to Mr Deacon who was already taking a drug called Fluoxetine, as the appellant was well aware. She had no way of knowing the potentiating effects of each drug on the other. The learned judge pointed out that Mr Deacon had fallen over twice and had this happened outside he could have smashed his head on the pavement or against a wall or on a sharp object and sustained a much more serious injury. He said: "It's not unfair to say that you were prepared to gamble not just with his wellbeing and his health but his very life." The learned judge then said this: "Mr Deacon – and it's a great credit to him – not only does not want a restraining order and supports the position taken by his mother and step-father, but he also says that he does not want you to go to prison. You have no previous convictions or cautions. The degree of pre-meditation, the high risks that you were taking is such that this clearly passes the custody threshold by a considerable degree. Those who purchase illegal substances via the internet and choose to use them unlawfully in the way that you did must expect sentences of imprisonment. In my view after trial this would have merited a sentence of 20 months' imprisonment. I'm going to give you credit of 25%, pleas not being indicated in the lower court." Having indicated the sentences imposed the learned Judge said: "This is not a case where the nature of the offence and the level of pre-meditation involved is such that I could regard it as appropriate to suspend the sentence." 8. In what we regard as extremely well-presented written grounds of appeal against sentence, Mr Thompson has submitted that the learned judge's starting point was excessive. He has referred us to the case of R v Harries (Paul) [2012] EWCA Crim 3071 , an authority which he had also drawn to the attention of the learned sentencing judge. There, where the defendant had taken amphetamine into work and spiked cups of coffee with it which he gave to two men to drink, the defendant's motivation had been to bring about their dismissals as revenge for workplace bullying which he had suffered from the victims. They suffered physical symptoms including palpitations, racing heart and shaking and were treated in hospital for high heart rates and raised blood pressure. The defendant had then falsely told his employer and the police that he had seen the men taking drugs at work, in the hope of getting them dismissed. A sentence of six months' imprisonment (which was suspended) was upheld by the Court of Appeal upon an Attorney-General's Reference. The court there was referred to an old case, R v Ronald Jones 12 Cr.App.R (S) 233 where the court had suggested that an offence of administering poison could be equated with either a section 20 offence or a serious offence of assault occasioning actual bodily harm. In Harries it was acknowledged that this would lead to a starting point of 18 months' imprisonment if the assault guideline was applied. In Jones the Court of Appeal imposed an 18-month prison sentence, which was partially suspended. 9. Mr Thompson submits that both Jones and Harries were significantly more serious than the present case. He submits that the harm in the present case is not remotely comparable with a section 20 offence of wounding or inflicting grievous bodily harm and would amount to lesser harm on the assault occasioning actual bodily harm guideline. He equates the present case to Callaghan [2001] EWCA Crim 198 where the appellant, like this appellant, was of good character and slipped a prescription-only drug into the wine of a female friend with effects of sedation, drowsiness and confusion. This had rendered the victim unconscious. When she regained consciousness the following morning she found herself in her mother's house next door. On the skin of her abdomen, just below the knicker line, the appellant in that case had drawn with a felt-tip pen the words "in here" alongside an arrow pointing down towards her private parts. The Court of Appeal not only upheld a sentence of six months' imprisonment but stated that "The length of that sentence was just as it should have been". 10. Mr Thompson submits that the learned judge placed much greater reliance on the degree of pre-meditation and the risk of fatality than truly existed. The drugs were not obtained for the purpose of committing the offence and the risk of serious injury for the victim was, he submitted, slight. He submitted that the starting point should have been on a par with Callaghan and that the learned Judge, for example, should have used the Sentencing Council's Guidelines for assault occasioning actual bodily harm, and had he done so the matter would have been categorised at level 2 with a starting point of 26 weeks' imprisonment. 11. In addition, Mr Thompson submits that insufficient credit for plea was given and there was inadequate reduction in the sentence for the significant mitigation that was available to the appellant. Finally, he submits the learned Judge should have given greater consideration to imposing a suspended sentence and failed to address the Guideline on the imposition of custodial and community sentences. This was despite the fact that the sentencing judge's attention had been drawn to that guideline, with specific reliance being placed on the table at page 8 dealing with factors which should be weighed in considering whether it is possible to suspend the sentence. He submitted before the learned judge, and repeats the submissions before us, that upon proper consideration of the factors in that table, they would all be regarded as in favour of suspending the sentence. Thus the appellant does not, he says, present a danger to the public; she has no convictions before this offence or since; appropriate punishment could be achieved without immediate custody; there is no history of non-compliance with court orders; there is a real prospect of rehabilitation as demonstrated by the pre-sentence report; there was strong personal mitigation and immediate custody would have a detrimental effect upon others, particularly the appellant's father who attended the court below in support of her. Mr Thompson reminds us that the court has emphasised on numerous recent occasions that sentencing courts must pay attention to the Imposition Guidelines. 12. We are largely in agreement with the submissions which Mr Thompson has made. In our judgment, for this offence – and we agree with the learned Judge that these cases are all fact-specific – he adopted too high a starting point and a sentence of 20 months' imprisonment before credit for plea was in our view manifestly excessive. Furthermore, we consider that the learned judge failed to give the appellant sufficient credit for recognising almost immediately the seriousness of what she had done, informing her step-mother and providing the blue bottle to the paramedics so that Mr Deacon received the right treatment and was given the optimum chance of recovery, as in fact happened. In our judgment, an appropriate sentence before reduction for plea would have been one of eight months' imprisonment and this should have been reduced to six months after credit for plea. 13. Furthermore, in our judgment the learned Judge should have given more serious consideration to suspending the sentence. As Mr Thompson has submitted, the facts set out in the Imposition Guideline should have been considered in turn, and had they been we take the view that they would almost certainly have led the learned judge seriously to consider suspending the sentence. 14. We therefore substitute for the sentence of 15 months' imprisonment a sentence of six months' imprisonment which we suspend for a period of 12 months. Similarly, we suspend the sentence of one month's imprisonment for possession of Clonazolam, although we note that that sentence has in fact already been served. Thus, in the (in our view) unlikely event that the suspended sentence were to be activated, there would be nothing to be served for the offence of possessing Clonazolam and only a short residual period in relation to the sentence of six months which has not yet been served. 15. In addition, following the recommendation in the pre-sentence report, we attach to the suspended sentence a rehabilitation activity requirement of 20 days. To that extent, this appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

2019_06_12-4621.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1131/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1131

ece6aae33147fa86ca49dfaea3b0c4f82d9e135fb46fc956fd5c178f5e0deea8

[2003] EWCA Crim 686

EWCA_Crim_686

crown_court

No: 2002/0385/Y1 Neutral Citation Number: [2003] EWCA Crim 686 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday 20th February 2003 B E F O R E LORD JUSTICE MANTELL MR JUSTICE JACK MR JUSTICE HEDLEY - - - - - - - R E G I N A -v- DARREN CHRISTIAN - - - - - - - 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 C

No: 2002/0385/Y1 Neutral Citation Number: [2003] EWCA Crim 686 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday 20th February 2003 B E F O R E LORD JUSTICE MANTELL MR JUSTICE JACK MR JUSTICE HEDLEY - - - - - - - R E G I N A -v- DARREN CHRISTIAN - - - - - - - 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 appeared on behalf of the APPELLANT MR D JEREMY appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE MANTELL: This appeal of Darren Christian comes before the court as a result of a Reference by the Criminal Cases Review Commission made under section 9 of the Criminal Appeal Act 1995 . On 15th September 1992 at the Central Criminal Court, Darren Christian was convicted of possessing a shotgun without a firearm certificate. He was sentenced to three years' imprisonment. 2. He appealed and his appeal was dismissed. The matter was referred to the Criminal Cases Review Commission who, having carried out their own investigations, came to the conclusion that the conviction could not be regarded as safe because police officers involved in the search of the premises where the shotgun was alleged to have been found had since been found wanting and indeed considered guilty of corruption. It is not desirable to name names because we are unclear as to whether or not there have been any criminal prosecutions. Suffice it to say that it now appears that some at least of the officers involved in the arrest of the appellant and in the alleged finding of the shotgun had been party to a corrupt practice which involved taking around with them imitation weapons, primarily with a view to planting them on persons who may perhaps have been "shot" in the course of the carrying out of police duties, in order, it is suggested, to justify police actions on those occasions. 3. Given that background, the Crown represented by Mr Jeremy do not attempt to uphold the convictions as safe. Of course it remains a matter for this court and the decision does not ultimately rest with the Crown, but we respect the Crown's position and we happen to agree with it. In our view the conviction cannot be regarded as safe and accordingly the appeal succeeds and the conviction will be quashed. 4. MR DEIN: May I raise one very short matter? There is an application which I am asked to make for a defendant's costs order relating to expenses incurred by the appellant in respect of the former appeal, that is to say representation throughout the early 1990s. My Lord, I do not intend to trouble the court with detail, but I am asked to make the application and to invite your Lordships to say in principal, subject to taxation, that a defendant's costs order would be -- 5. LORD JUSTICE MANTELL: You do not have any figures? 6. MR DEIN: My Lord I have not been given figures today, but details will be supplied for the purpose of taxation so that costs can be granted from central funds once taxed if your Lordships makes the order. 7. LORD JUSTICE MANTELL: Yes, Mr Dein, a defendant's costs order, costs to be taxed. 8. MR DEIN: Thank you very much indeed. I am grateful. 9. LORD JUSTICE MANTELL: You do not oppose that, do you, Mr Jeremy? 10. MR JEREMY: No, my Lord.

2003_02_20-26.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/686/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/686

bf5f7f83d444fd945eec20f8c03877dbfdc2313d2be99b969006846697007d3e

[2014] EWCA Crim 2216

EWCA_Crim_2216

crown_court

No: 201206721/B4 Neutral Citation Number: [2014] EWCA Crim 2216 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 22nd October 2014 B e f o r e : LADY JUSTICE MACUR DBE MR JUSTICE SUPPERSTONE RECORDER OF NOTTINGHAM (HIS HONOUR JUDGE STOKES) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - R E G I N A v SHAKEEL AHMED HAQ - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Internatio

No: 201206721/B4 Neutral Citation Number: [2014] EWCA Crim 2216 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 22nd October 2014 B e f o r e : LADY JUSTICE MACUR DBE MR JUSTICE SUPPERSTONE RECORDER OF NOTTINGHAM (HIS HONOUR JUDGE STOKES) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - R E G I N A v SHAKEEL AHMED HAQ - - - - - - - - - - - - - - - - - - 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 Kelly appeared on behalf of the Appellant Mr N Cartwright appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE MACUR: This is an appeal against conviction with the leave of the Full Court. 2. The issue in the appeal is whether a witness statement, apparently signed by the appellant, which actually had the effect of undermining his alibi should have been excluded pursuant to section 78 of the Police and Criminal Evidence Act 1984, by reason of the manner by which it was obtained and/or its adverse effect upon the fairness of the proceedings. If so, is the conviction unsafe? 3. The facts of the case may be given very briefly. There is no issue that a young man by the name of Amjam Sarwar was kidnapped and blackmailed on 29th May 2009. This fact may be stated by reason of the conviction of three others apart from this appellant namely, Hadait, Hadait and Hafiz, in 2010. This particular appellant was also liable to be tried with those three defendants but at the time of the trial in 2010 was not within the jurisdiction. Subsequently he was arrested on his return from Amsterdam, apparently upon his arrival at Liverpool Airport, on 3rd May 2012. 4. In the proceedings that followed he served a defence statement. His defence statement introduced the defence of alibi and suggested that at the relevant time he, the appellant, was in Morocco. He sought to rely upon his passport in order to prove the same. In fact it could not conclusively prove either that he was or was not in Morocco. Significantly, as I will refer to in due course, he had said in police interview that he had not been present at the scene but had been in Yorkshire or Birmingham at the relevant time. He was obviously cross-examined at some length about his changing accounts both as from interview and the oral evidence that he gave before the jury. 5. The defence statement served was handed to the officer in the case, Detective Constable Hall who, in accordance with his duties of disclosure, researched the previous case papers relating to the three convicted men. In the course of his inspection of those files he came across a witness statement, apparently signed by this appellant, which indicated that he, the appellant, was present with Mohammed Hafiz and had been at the relevant location concerned with the charges of kidnap and blackmail but had not been present when any such offences were said to have taken place and neither was Mohammed Hafiz. That statement was dated September 2009. 6. The statement, once found, provided obvious ammunition for the prosecution. It was obviously disclosed, for in documents prepared by Mr Kelly, who appears on behalf of the appellant, he indicates that when the appellant’s case was listed for mention, prior to trial, he made clear that the statement was in dispute, not at that time as to provenance, strictly speaking, but as to whether or not it was in fact the statement of this appellant. 7. The trial commenced shortly thereafter. It is apparent that at the start of the trial the origins of the statement were still in some doubt. Enquiries were made of Hafiz's former solicitors, Whitworth & Green, and they revealed that the relevant statement had been prepared by a Miss Smith, then employed by the firm as a legal assistant, indicating that the usual course would be for an interview with the maker of the statement to be recorded, a statement to be prepared thereafter and to be submitted for signature. So far as the solicitor was concerned, there was nothing on the solicitor's file to suggest that any other course had been followed. 8. The prosecution therefore sought to admit the same into evidence. Mr Kelly, who appeared for the appellant below, sought to exclude the evidence in an application pursuant to section 78. In doing so, and acting on his then instructions, he was to challenge the validity of the statement and made submissions that the production of the statement could not be investigated because the maker of the statement, that is the legal assistant who had produced the statement had not been produced for the purpose of cross-examination. 9. The appellant's case was firmly that he would not have made such a statement and that in fact although he signed his name at the request of the particular legal assistant, that he did so under peer pressure and that he signed blank pages. The inference was, obviously, that through nefarious means the body of the statement had been completed after the event and in order to ascribe to him assertions that he could not and would not have made. 10. The trial judge in dealing with the application understood that that statement had been found when the disclosure officer was investigating the original trial material. The evidence of Detective Constable Hall, from whom we have heard this morning, confirms his evidence to that effect. A statement prepared by Detective Constable Hall, on 25th October 2012, indicates that in his search of case documents he found the statement, both handwritten and typed, alongside a medical report. He also recalls - this is from his memory of 2 years ago - that there was a memo from the solicitor's firm indicating that there was a medical issue in relation to the defendant Hafiz and also referring to the particular statement apparently made by this appellant. 11. The judge, in considering the application to exclude the evidence, had regard to the statement produced by Whitworth & Green and on that basis considered that it was prima facie a valid statement, in that it was represented by the appellant's signature to be his statement and drew attention to the fact that the statement not only bore the name of the defendant, his correct age, an address at which he had lived but also the fact that there was an attendant document from an inquiry agent, who had attempted to serve a witness summons upon the appellant. 12. The judge went on to conclude: "It seems to me that this statement is relevant, admissible and probative through the diligence of the officer in charge in this case. The prosecution have evidence available which bears on the credibility of the defendant's alibi. I can think of no reason why the jury should not hear about it. What they make of it in light of whatever evidence this defendant chooses to give is a matter for them." 13. Mr Kelly indicates that he is not now instructed to pursue any ground of appeal which suggests that the witness statement with which this appeal is concerned did not emanate at the direction of the appellant. His submissions on this appeal, he correctly concedes, have been significantly altered by the changing circumstances of the matter. He reminds the court that section 78(1) of the Police and Criminal Evidence Act 1984 makes clear that the court must consider the manner in which the evidence was obtained. It follows from his submissions that he invites the court to say that if mala fides is established in the obtaining of the document, then the judge inevitably would have excluded the evidence. 14. We have read the witness statement of Miss Sam Smith , the legal assistant engaged by Whitworth & Green to take a statement from the appellant. We have not considered it necessary that she should be called to speak to that statement and clearly the contents of the statement are capable of belief, would not have been available at the time of the trial and otherwise fulfill the requirements of which we must be satisfied in order to admit fresh evidence pursuant to section 23(2) Criminal Appeal Act 1968. This particular statement makes clear that a solicitor's file in which was inserted a copy of this appellant's statement was left in the court during the trial of Hafiz and others and was left behind at the conclusion of the case. It is apparent from that which Mr Cartwright has told the court that an investigation of papers now produced from the Sheffield archives of CPS material, that the contents of that particular file were undoubtedly collected together with CPS material. 15. We have no basis whatsoever upon which to base any finding that this particular file was deliberately targeted and removed by anyone connected with the Crown Prosecution Service or police officers involved in the case and is more likely to have been left behind by oversight of defence counsel who had been commissioned to look after the file in the absence of the solicitor. 16. Mr Cartwright, on behalf of the prosecution, the respondent, tells us, properly, that he has researched the bundles and cannot identify the documents to which Detective Constable Hall refers, namely the memo or the medical report. 17. This does not necessarily mean that Detective Constable Hall did not see those documents. We do not have to make such a finding, merely to record that there is nothing to suggest other than that this particular statement came into the hands of the prosecution entirely fortuitously. It is quite clear to us that it would not have been referred to in any regard, or have any relevance but for the defence statement, served by the appellant and his assertion of alibi. But for that we can see no reason whatsoever why any investigation of previous case papers would be made some two-and-a-half years after the first trial. 18. In these circumstances, we find no impropriety on behalf of the officer or the Crown Prosecution Service. At its highest, Mr Kelly can therefore only rely upon the fact that it should have become apparent far earlier than it did that this was a privileged document that must be returned and not referred to. 19. Before us today Mr Kelly must concede that he faces difficulty in arguing that this privileged document, and I interpolate not privileged as between this appellant and counsel but between Hafiz and his solicitor, could be admissible in proceedings. He acknowledges that the case of R v Tompkins (1978) 67 Cr App R 181 , makes clear that privilege protecting communication between counsel and client relating to the production of a document in question does not determine its admissibility. In this case however, quite rightly, he goes on to submit that that is not determinative of any application pursuant to section 78 of the 1984 Act to exclude the same. We respectfully agree. 20. We therefore go on to consider the course of the application and whether or not the judicial exercise of discretion can be said to be impugned by what may have been incorrect information before the court. It is clear that this court should be loathe to interfere with the judicial exercise of discretion and Mr Kelly obviously recognises that his task in submitting that the trial judge was perverse, in the legal sense that no reasonable trial judge would have come to the same decision, is a difficult burden that he bears. He therefore must rely upon the manner in which the statement came into the hands of the prosecution and suggests that if the judge had known he would not have permitted its admission into the proceedings. 21. We have considered the circumstances of this case and have already determined, as I have indicated, that any suggestion of impropriety is unfounded on the basis of the evidence of information before us. The nature of privilege does not determine admissibility and the substance of this this particular witness statement, now implicitly conceded to be that of the appellant, was such that must have driven the trial judge to see that fairness required, in the face of the defence statement, that it should be admitted as part of the prosecution evidence. 22. This was not a case of ambush. The prosecution had disclosed the existence of the document prior to trial. It was not a case in which Mr Kelly can argue that he could not have challenged the substance of the statement and in fact no longer would seek to do so. The appellant gave evidence before the court. His assertion that it was not his statement could not be challenged by any contrary evidence. 23. In these circumstances, any suggestion that the judge was perverse in his ruling as to the admissibility and subsequently his directions to the jury cannot be sustained. 24. We have, in any event, considered whether or not but for this statement this particular conviction would be capable of being regarded as unsafe. We come to the firm conclusion that it cannot. Quite apart from the statement there was the evidence of the complainant identifying, by name, this appellant. Other prosecution witnesses spoke of identifying his voice in telephone threats in the course of the blackmail charged. His failure to mention in interview his ultimate alibi that he was in Morocco was rightly subject to a direction to the jury as to the potential inference to be drawn. In any event, none of these matters have been criticised on the appellant's, behalf. Consequently, our firm view is that this conviction is safe. In those circumstances this appeal against conviction must be dismissed.

2014_10_22-3491.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/2216/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/2216

b6cd172f1f50d476d7451d84445db59f81a09afb961070ada4b69be26b1618db

[2006] EWCA Crim 1706

EWCA_Crim_1706

crown_court

No. 2005/06664/A6 Neutral Citation Number: [2006] EWCA Crim 1706 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 23 June 2006 B e f o r e: LORD JUSTICE KEENE MR JUSTICE CRANE and SIR JOHN BLOFELD __________________ R E G I N A - v - PETER JAMES CUNLIFFE __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MR T

No. 2005/06664/A6 Neutral Citation Number: [2006] EWCA Crim 1706 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 23 June 2006 B e f o r e: LORD JUSTICE KEENE MR JUSTICE CRANE and SIR JOHN BLOFELD __________________ R E G I N A - v - PETER JAMES CUNLIFFE __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MR T ASHMOLE appeared on behalf of THE APPLICANT ____________________ J U D G M E N T Friday 23 June 2006 LORD JUSTICE KEENE: I will ask Sir John Blofeld to give the judgment of the court. SIR JOHN BLOFELD: 1. This case has been referred to the full court by the Registrar in order that the court consider, under the provisions of section 11 of the Criminal Appeal Act 1968 , whether to restructure the sentences so as to render them lawful. We grant leave to appeal. We also consider submissions made by counsel on other matters relating to sentence. 2. The appellant, Peter James Cunliffe, was 19 at the time of his pleas of guilty. He is now 20. On 30 August 2005, at Preston Crown Court, he pleaded guilty and was sentenced as follows: for trespass with intent to commit a sexual offence, imprisonment for public protection of 30 months (less 254 days); for sexual assault on a female, imprisonment for public protection of 30 months (less 254 days); for attempted abduction of a child, an extended sentence of six years (comprising four years' imprisonment with an extended period of licence of two years); for taking a child without lawful authority, an extended sentence of six years (comprising four years' imprisonment with an extended period of licence of two years); for sexual assault on a female by penetration, 42 months' imprisonment for public protection (less 254 days); and finally, for attempted rape, seven years' and six months' imprisonment for public protection (less 254 days). In addition, he was required to comply indefinitely with the provisions of section 2 of the Sex Offenders Act 1997 (notification to the police). He was also disqualified from working with children for life. 2. On 8 April 2005 the appellant absconded from a bail hostel. Just after 2.30pm on 10 April he walked through the front door of a house occupied by a woman who was living there with her two children. He went into the living room and said to her, "I am going to shag you". He exposed his penis and started to masturbate himself. He did not leave when he was asked to do so, but she managed to push him out of the house. She was thoroughly disturbed by the incident. 3. On the evening of 20 April a 21 year old woman disembarked from a bus. She was approached from behind by the appellant. Without further ado, he forcibly put his hands between her buttocks, rubbed his fingers between her legs and onto her private parts over her clothing. He talked to her in an unattractive manner and circled around her. He walked away when she did her best to get rid of him. 4. At about 4.10pm the following day the appellant approached a 12 year old girl as she was walking along a woodland path whist on her way home from school. He tried to engage her in conversation a number of times. He told her that he was waiting for a friend. He asked for her name and other details. She refused to talk to him. He then grabbed her upper arm and her clothing. Fortunately, she reacted extremely quickly, jerked her shoulder forwards and ran off towards two dog handlers who were not far away. 5. That incident did not deter the appellant. At about 9pm on the same day a 14 year old girl was walking along a street in Burnley. She had been out with friends and had decided to walk home. She noticed the appellant on the other side of the road walking the other way. She then noticed that he turned round and started to follow her. As she quickened her pace, so did he. She decided to take a short cut through school grounds because she knew the area well. Once in the grounds the appellant ran up from behind her, grabbed hold of her, pushed her to the ground and said, "We'll get this over and done with and then I'll leave you alone and it won't take a minute". He said to her that if she did not stop moving he would kill her. He said, "Do you want me to bang your head against that wall and knock you out?" By that stage she was lying on her back and he was kneeling down. He tried to pull her skirt down. He placed his hand over her mouth. She said that she could not breathe. He said that he did not care. He pulled hard at her knickers and succeeded in removing them. She bit his hand and tried to struggle free. He then punched her severely. He caused her nose to bleed profusely. He then pushed his finger into her eye and got on top of her. She screamed for help, kicked him and tried to free herself. He turned her over, pushed her head into the grass and said, "Don't worry, I'm not going to hurt you". He pulled his pants down, inserted one or more of his fingers into her anus and moved them about. He turned her onto her back, again put his hand over her mouth, grabbed her hair and said, "Do you want me to rip your hair out and slam you against that wall? I'll kill you if I have to". She had enough wits to attempt to use her mobile phone but was unable to get through. The appellant attempted to insert his penis into her vagina, but did not do so. She pleaded with him to stop. She said to him that she was only 7 years old. This at some stage must have got through to him because he got off her and said, "Oh, my God, I'm really sorry. I'm from London. I'm 17 and I don't live round here and I don't know where anything is. I'm really sorry. Hit me". He then went away. It was quite clear that she was wholly distraught. She looked for her underwear, but could not find it. She contacted her parents on the telephone. Fortunately a police car passed and she flagged it down. She described the appellant's penis as being erect throughout the incident after he had removed his own clothes. 6. The victim was described by officers as crying and bleeding from her nose. She was taken to hospital. She had a bruised and swollen nose which was bleeding from both nostrils and a bump on the left side of her forehead. She was given pain killers and head injury advice. Her mother attended the hospital. There is an impact statement from her mother which details both the victim's distress and her mother's distress. It is quite clear that this offence has had a substantial impact upon that unfortunate girl. 7. The appellant was duly arrested. He was interviewed on a number of occasions. He made limited admissions throughout a series of interviews, but at the Crown Court he pleaded guilty to the offences. 8. There was a long pre-sentence report which found that the appellant would have difficulty in exercising control over his behaviour within the community and should be regarded as presenting a high risk of physical harm to females of all ages, but particularly those in adolescent years. He was also seen by a psychiatrist who found significant evidence of abnormal personality. He has displayed a pervasive pattern of disregard for violation of the rights of others since the age of 15, as indicated by other matters for which he had previous findings of guilt and convictions. The psychiatrist found the appellant to have a superficial and plausible manner. His behaviour was manipulative and he blamed the victims of the offences for his actions. The psychiatrist was reluctant to label him as a man with a personality disorder, but his conclusion was that the appellant's abnormal personality traits, his proclivity to substance misuse and its disinhibiting effects, and the concentration of a high number of sexualized offences in a short period of time were all factors that are associated with a high risk of offending. The appellant was incapable of gaining benefit from treatment and any treatment would not alleviate or prevent deterioration of his condition. Those reports were before the trial judge and he took them into account. 9. The four offences (other than the abduction and the attempted abduction) are all "specified" offences under Schedule 15 of the 2003 Act and are also serious specified offences under section 225 of that Act , as the judge so found. The judge acted as though the two offences of abduction were specified offences under Schedule 15 of that Act . He was wrong about that. Although there are abduction offences under that Schedule, there are none under the Child Abduction Act. The full offence was charged under the Child Abduction Act, and the attempt was charged under the Criminal Attempts Act, although it follows the same wording as that of the full Child Abduction Act offence. Consequently the judge was not entitled to pass extended sentences as those offences were not on the Schedule. The judge passed sentences of imprisonment for all offences. As the appellant was under the age of 21 that was an error; he should have passed sentences of detention in a young offender institution. As we have said, this court has power to put that right. 10. Before passing sentence the judge considered and cited R v Lang and Others [2005] EWCA Crim 2864 . He considered sentencing the appellant to a term of life imprisonment, but came to the conclusion that the proper sentence was imprisonment for public protection, bearing in mind that that also is an indeterminate sentence with little, if any, difference to the effect that it would have if he passed a sentence for life imprisonment. 11. Mr Ashmole, who represents the appellant today, does not dispute that the trial judge was right to find that sentences for public protection were necessary. This court wholly agrees. It was inevitable that such sentences should be passed. 12. Counsel makes one submission only. He submits that the started point of fifteen years that the judge selected for the attempted rape was too high. Although he has not taken us through the authorities, he submits that the case law indicates that sentences are usually lower than fifteen years. At paragraph 18 of his advice on appeal against sentence he accepts that an aggravating feature was that there were further serious sexual assaults in the indictment period. That is a factor on which this court places a considerable amount of importance. It is necessary to consider that starting point. 13. We look first at both the aggravating and the mitigating factors. One of the aggravating factors was that the offence of attempted rape is that it occurred at 9pm on an April evening when it would have been dark and it took place in a deserted place. Secondly, the appellant used violence over and above the violence necessary to commit the sexual offence: he punched her, he poked her in the eye and he put his hand over her mouth, almost suffocating her. He also inserted his finger or fingers into her anus. He did not desist of his own accord, but waited until she had told him that she was only 7. It is clear from the fact that he had committed an earlier offence against a 12 year old that day and had been rebuffed, that this was a planned offence in the sense that, having failed with one victim, he actively sought another victim. The impact upon the victim has been severe. The other matters in the indictment are further aggravating features. It is the pattern of behaviour which is specifically referred to in section 229 (2)(b) when the court is required to consider the question of dangerousness. 14. The mitigating factors are the appellant's pleas of guilty to all offences. It is said in the written submissions that he used no weapon (although that is not exactly a mitigating feature). He has no previous convictions for sexual offences, although he has twelve previous convictions for other types of offences. It is also accurate that he did not go on to commit the full offence. 15. The authorities make it clear that a substantial term of imprisonment is always necessary for all offences of rape, and attempted rape particularly where the victim is young, as was the case here: see R v Billam . The authorities normally deal with aggravating features relating to the circumstances of the offence. In this case we have the additional factor of the pattern of offences throughout the indictment period. Despite the fact that the appellant told his last victim that he was 17, he was in fact 18 years and 11 months at the time of these offences. 16. It necessary for this court to look at the totality of his offending period. In cases such as these it is desirable that all the sentences should run concurrently, as was set out by the Vice President in Lang where at paragraph 20 he said: "When offenders are to be sentenced for several offences only some of which are specified, the court which imposes an indeterminate sentence under sections 225 or 226, or an extended sentence under section 227 .... should generally impose a shorter concurrent sentence for the other offences.... It will not normally be appropriate to impose a consecutive extended sentence...." Consequently we look at what the starting point should have been. We consider that for the offence of attempted rape the sentence should have been at least eight years. The aggravating factors directly connected with this offence would make us alter that figure to a figure of twelve years. We then look at the other offences in the indictment period and the totality of the circumstances. We conclude that that is an exercise the trial judge did not do. We have come to the conclusion that that twelve year figure should be raised to a figure of eighteen years. We then consider the mitigating factors. Largely (except for the plea of guilty) there were none that would entitle us to reduce that figure. From the eighteen, we must reduce that figure by one-third because of the appellant's timely pleas of guilty. The Sentencing Council Guidelines make it clear that only in exceptional circumstances can the court take any other course. There are no exceptional circumstances here. Consequently the eighteen year figure is reduced to twelve. We must then set out the minimum term to be served in accordance with section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000 . That reduces that figure to six years. 17. It cannot be stressed too highly that, although the figure is six years, the sentence is an indeterminate sentence. This young man is clearly a danger to the public. We anticipate that he will be in prison for a very long time. 18. We have gone through the same exercise for the other offences. For the trespass with intent to commit a sexual offence and the sexual assault on a female, we consider that the starting point should be six years. We reduce that in each case by two years for pleas of guilty. The minimum specified period should be two years, rather than 30 months. For the sexual assault on a female by penetration, the minimum period should be nine years. Reducing that by three years for the pleas of guilty, the minimum sentence should be three years. For the two abduction offences, the extended sentences must be quashed because there was no power to make them. In their place we impose a sentence of detention in a young offender institution for three years. From all the sentences of detention for public protection the period of 254 days must be deducted because that time has already been served by him in custody. 19. It is important to make it clear that the sentence imposed by this court, as it was in the Crown Court, is not a sentence of a term of years. The appellant will remain in prison until the body supervising his release, advised by experienced professionals, is satisfied that it is safe to release him in accordance with the provisions of the statute. He will be kept in custody for public protection until it is safe to release him, if that point is ever reached. The ancillary sentences remain for life or until they are reviewed in accordance with the statutory directions. This appeal is allowed to the extent indicated in the course of this judgment. ___________________________

2006_06_23-849.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1706/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1706

89ed22bc600e20d20d3a364a85aa274854588ba4f40669872d62848ae79d0224

[2003] EWCA Crim 3452

EWCA_Crim_3452

crown_court

No: 200301137/B1 Neutral Citation Number: [2003] EWCA Crim 3452 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 14th November 2003 B E F O R E: LORD JUSTICE KEENE MR JUSTICE RODERICK EVANS MR JUSTICE COOKE - - - - - - - R E G I N A -v- JOHN M - - - - - - - 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 t

No: 200301137/B1 Neutral Citation Number: [2003] EWCA Crim 3452 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 14th November 2003 B E F O R E: LORD JUSTICE KEENE MR JUSTICE RODERICK EVANS MR JUSTICE COOKE - - - - - - - R E G I N A -v- JOHN M - - - - - - - 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 LEE appeared on behalf of the APPELLANT MR A CAMPBELL appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: The principal issue in this appeal concerns the test to be applied as a matter of law in determining whether an accused is fit to plead to the charge, or charges, against him. 2. On 18th December 2002 at the Central Criminal Court before His Honour Judge Roberts QC this appellant was found fit to plead. On 20th December in that same year and in the same court he was convicted of rape, indecent assault on a female, indecency with a child, and taking indecent photographs of a child. He was subsequently sentenced to a total of eight years' imprisonment. 3. He now appeals against conviction following a certificate of fitness for appeal which was granted by the trial judge on the ground that: "My directions of law to the jury as to what the defendant must be capable of doing if he is to be fit to stand trial may have set the threshold too low." 4. He also applies for leave to appeal against conviction on a further ground to which we shall come. 5. Because of the nature of the issues in this case it is unnecessary to set out the facts of the substantive offences themselves in great detail. It was the Crown's case that the appellant had sexually abused the grand daughter of his partner in various ways between 1998 and 2000 at times when she was aged between eight and ten. It was alleged that the abuse had included his partially inserting his penis into her anus, licking her vagina, inserting his finger into her vagina and putting his penis in her mouth, masturbating to ejaculation in front of her and taking the indecent photographs referred to in the indictment. 6. It was the defence case, when this matter was finally tried, that the offences had not taken place and that the allegations were the result of the complainant's over active imagination. He gave varying explanations for the photographs, including that he had taken them at the complainant's request. 7. The appellant was arrested and interviewed in July 2001 and then released on bail. He was further interviewed and charged in October 2001. The issue of the appellant's fitness to plead was raised by the defence and a jury was sworn to try that issue. For reasons into which we need not go the trial of that issue did not begin until 10th December 2002. 8. It was the defence case that the appellant suffered from a serious impairment to his short term memory, known as anterograde amnesia, which rendered him incapable of following the proceedings and giving evidence in his own defence and therefore unfit to stand trial. It was noted by the judge that it was the appellant's own view that he was fit to stand trial and that he wanted an opportunity to go before a jury. 9. The prosecution's case was that the appellant was fit to stand trial despite his anterograde amnesia. It was submitted by the Crown that when in interview with the police and with psychologists and psychiatrists he had demonstrated a good recollection of events during the relevant period, had remembered various names and details about the complainant and about visits to her grandmother. It was argued that allowances could be made for the appellant's condition by the use of frequent breaks during the trial so that he could then discuss matters with his lawyers. 10. Apart from the interviews with the police the jury heard evidence about the appellant's fitness to plead from a number of witnesses. Those were Tom Brabender, a clerk from his solicitors, who visited him on more than one occasion, three psychiatrists, Dr Rachel Jones, called by the defence, Dr Martin Lock, called by the prosecution, and Dr Ian Cumming, appointed by the court, and two psychologists, Dr Fisher and Dr Drennan, called by the prosecution and the defence respectively. 11. Mr Brabender saw the appellant in November 2001 and said that the appellant appeared to understand the charges and gave explanations for some obscene photographs found in his car, but some of what he had said did not make sense. Mr Brabender was satisfied that he had been provided on that occasion with instructions by the appellant. 12. Dr Jones had visited the appellant first in March 2002. She had carried out some tests. She concluded that he had performed quite well in respect of those tests on orientation, attention, concentration and immediate memory, but he had not performed well on short term memory after three or five minutes. She thought that his short term memory had been affected by brain damage resulting from alcohol abuse. She formed the opinion that he was not fit to stand trial. 13. In June 2002 the Crown's psychiatric witness Dr Lock first saw the appellant. He discussed the appellant's past history with him and his evidence was that he received a much more credible and reasonable account than appeared to have been provided to Dr Jones. Dr Lock also carried out the mini-mental state tests and obtained the same results as Dr Jones, in that the appellant had performed well on everything except short term memory. Dr Lock asked the appellant a lot of questions about the offences he was charged with and noted that the appellant was able to provide a reasonable summary of the case and information that he alleged was the truth. Dr lock considered that the appellant was fit to stand trial. 14. Dr Jones, the defence psychiatrist, visited the appellant again on 19th July. She said to the court that it was obvious that his physical and mental state had improved considerably since her previous visit. She carried out the same test and recorded a score which was not indicative of a cognitive impairment. Her evidence was that on this occasion he was orientated in time, place and person, and his attention and concentration were intact. His remote memory, language and immediate recall were also intact, but his short term memory remained impaired. She noted in her report that she considered him to be capable of understanding the charges, challenging jurors, instructing lawyers and following and commenting on the evidence. She considered that he was fit to stand trial, provided that measures were taken to cater for his memory difficulties, such as the provision of frequent breaks so that matters could be explained to him. She found no evidence to indicate that he was suggestible. That then was what she found in July 2002. 15. A court appointed psychiatrist, Dr Cumming, also examined the appellant in July 2002. He agreed with Dr Jones that the appellant was fit to stand trial, provided arrangements could be made to assist him in the difficulties which he might experience due his impaired memory in so far as following the proceedings and passing comments to his lawyers. 16. However, both Dr Jones and Dr Lock saw the appellant again on 30th September 2002. As a result of that particular visit Dr Jones returned to her earlier view that the appellant was not fit to stand trial. She said that he had been unable to recall having seen her before and had said a number of strange things, such as that he was charged with raping his now 18-year old niece when she was four. 17. Dr Lock said that during his visit to the cells the appellant had recalled that he had previously examined him in prison in order to produce a report for the court. The appellant said that he had already seen a psychologist and explained the tests that he had done. This was true. Dr Lock remained of the opinion that the appellant was fit to stand trial. 18. The two psychologists carried out psychometric tests, one in August and the other in October 2002. The final findings of both psychologists confirmed those of the psychiatrists, namely that the appellant's general intellectual performance and concentration was good, but his short term memory, beyond a couple of minutes, was poor. Both psychologists concluded that the appellant was not fit to stand trial. 19. In the light of the psychometric tests all three psychiatrists reconsidered their opinions. Dr Jones said that they had confirmed her changed view, namely, that the appellant was not fit to stand trial. Dr Cumming said that the results of the tests had caused him to change his opinion and that he now also believed that the appellant was not fit to stand trial. However, Dr Lock did not agree and thought that the impairment of the appellant's short term memory did not render him unfit to stand trial, although, as he previously noted, special steps would be required in order to deal with his memory problems. 20. The judge directed the jury with great care as to the legal test to be applied to this issue. Indeed, he put his directions into typescript after discussing them with counsel and gave the jury copies. He began by telling them that they had to decide whether the defence had persuaded them on a balance of probabilities that the appellant was suffering from a disability which rendered him unfit to stand trial. He directed them that in order to be fit to stand trial at all a defendant must be capable of doing six things. He told them that it followed that it was sufficient for the defence to persuade them on the balance of probabilities that any one of those six things was beyond the appellant's capabilities. Those six things were as follows: (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of the proceedings; (6) giving evidence in his own defence. 21. In respect of each item the judge gave the jury an explanation of what it meant. Thus, when it came to the item "instructing his solicitors and counsel", the judge began by saying this: "This means that the defendant must be able to convey intelligibly to his lawyers the case which he wishes them to advance on his behalf and the matters which he wishes them to put forward in his defence. It involves being able (a) to understand the lawyers' questions, (b) to apply his mind to answering them, and (c) to convey intelligibly to the lawyers the answers which he wishes to give. It is not necessary that his instructions should be plausible or believable or reliable, nor is it necessary that he should be able to see that they are implausible, or unbelievable or unreliable. Many defendants put forward cases and explanations which are implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for." 22. As to item (5) on his list, "following the course of the proceedings", the judge's directions included this passage: "This means that the defendant must be able (a) to understand what is said by the witness and by counsel in their speeches to the jury and (b) to communicate intelligibly to his lawyers any comment which he may wish to make on anything that is said by the witnesses or counsel. Few defendants will be able to remember at the end of a court session all the points that may have occurred to them about what has been said during that session. It is, therefore, quite normal for the defendant to be provided with pencil and paper so that he can jot down notes and pass them to his lawyers either as and when he writes them, or at the end of the session. (Lawyers normally prefer not to be bombarded with too many notes while they are trying to concentrate on the evidence). There is also no reason why the defendant's solicitor's representative should not be permitted to sit beside him in court to help with the note taking process." 23. A little later under the same heading he said this: "It is not necessary that the defendant's comments on the evidence and counsels' speeches should be valid or helpful to his lawyers or helpful to his case. It often happens that a defendant fails to see what is or is not a good point to make in his defence. The important thing is that he should be able to make whatever comments he wishes." 24. As to item (6), "giving evidence if he wishes in his own defence", the directions included the following: "This means that the defendant must be able (a) to understand the questions he is asked in the witness box, (b) to apply his mind to answering them, and (c) to convey intelligibly to the jury the answers which he wishes to give. It is not necessary that his answers should be plausible or believable or reliable. Nor is it necessary that he should be able to see that they are implausible or unbelievable or unreliable. Many defendants and other witnesses give evidence which is either in whole or in parts implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for. Nor is it necessary that the defendant should be able to remember all or any of the matters which give rise to the charges against him. He is entitled to say that he has no recollection of those events, or indeed of anything that happened during the relevant period." 25. All the psychiatric witnesses in the case agreed that the appellant was capable of understanding the charges against him, of exercising the right to challenge jurors and of instructing his lawyers. They were divided on the other three items. 26. In due course the jury found the appellant to be fit to plead and to stand trial. The appellant's case on this aspect of the appeal is that the judge misdirected the jury by setting the test too low with the result that it was too easily met. Mr Lee, who appears on behalf of the appellant, submits that the authorities demonstrate that a defendant must be able to comprehend the proceedings for himself. He argues that the state of the evidence was such that the directions to the jury needed to be put in more emphatic terms. The overwhelming weight of the evidence was in favour of the defendant and even Dr Lock was somewhat tentative as to the short term memory of this man. Indeed, Mr Lee goes so far as to contend that the verdict was perverse. On the other hand, he has not been able to point to any part of the directions which were given, and to which we have referred, which was, in his submission, inadequate or inaccurate as a matter of law. 27. In addition it is said, at least in the skeleton argument submitted, that the first two of the six items should not have been included, that is to say understanding the charges and deciding whether or not to plead guilty. That has not been elaborated upon orally today and for our part we do not understand this last point for two reasons. First, because to include additional tests, even if unnecessary, can scarcely lower the standard of the test to be met when the judge had said that a failure to be able to do any one of the six things would suffice to render the appellant unfit to stand trial. Secondly, because both those two items objected to are encompassed in one of the matters which it is well established have to be considered, namely, whether the accused can plead to the indictment. That conveniently brings us to the authorities. 28. The original formulation of the appropriate test is that set out in Pritchard (1836) 7 and P 303 where in the case of a deaf mute it was said at page 304: "There are three points to be inquired into -- First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence -- to know that he might challenge any of you to whom he may object -- and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. Upon this issue, therefore, if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind. It is not enough, that he may have a general capacity of communicating on ordinary matters." 29. That passage from the address to the jury by Alderson, B in Pritchard has been endorsed subsequently in a number of authorities. In Podola [1960] 1 QB 325 that passage was expressly approved by the Court of Criminal Appeal presided over by the Lord Chief Justice, Lord Parker. In that case it was held that a loss of memory would not necessarily render an accused unfit to plead if he was able to do the various things described in Pritchard . 30. In Robertson (1968) 52 Cr App R 690 the Pritchard test was said to be one which had been confirmed and followed "over and over again". This Court there held that the mere fact that a defendant may not be capable of acting in his best interests during the trial is not sufficient to warrant a finding of disability and that a jury should not be directed that the issue is whether he is able "properly" to instruct counsel, or to give "proper" evidence. Again, this Court in Berry (1978) 66 Cr App R 156 , presided over by Geoffrey Lane LJ, as he then was, followed Pritchard and Robertson . The Court emphasised that merely because a defendant was highly abnormal did not mean that he was incapable of doing those things set out in Pritchard . 31. Those authorities clearly establish the law on this topic in this jurisdiction. When we consider the judge's directions in the present case in the light of those authorities we can find no deficiency in them. Indeed, this Court regards them as admirable directions. They do not set the test of fitness to plead at too low a level. 32. The issue of unfitness to plead is essentially one for the jury: see the Criminal Procedure (Insanity) Act 1964 section 4(5) . Whatever view this Court might have taken, given the available evidence, had it been the jury is nothing to the point, once there was evidence to go to the jury. We do not accept that the jury's verdict here was perverse. There was evidence that the appellant was fit to stand trial, namely, that of Dr Lock. There was no significant disagreement between Dr Lock and the other expert witnesses as to the impairment of this man's short term memory. Where they differed was as to his fitness or unfitness to stand trial and on some of the specific elaborations of that test set out by the judge in his directions to the jury. But ultimately the question of fitness or unfitness to stand trial is a matter for the jury rather than for the psychiatrists, even though there has to be psychiatric evidence for the jury to arrive at a finding of unfitness to plead. We can find nothing in this ground of appeal to cast doubt upon the safety of the ultimate conviction, or upon the jury's finding of unfitness to plead. 33. The other matter which arises is one on which the appellant seeks leave to appeal. It is contended that the judge should not have allowed the transcripts of the interviews by the police with the appellant to go to the jury which was determining this issue of fitness to plead. Objection was taken at trial to their admissibility on the basis that they were not relevant to the issue since they related to a time over a year earlier when the appellant's mental health had not or might not have deteriorated to the extent which it had by the date of trial. Moreover, it was contended that the interviews were more prejudicial than probative and so should be excluded under section 78 of the Police and Criminal Evidence Act 1984 (" PACE "). 34. The judge rejected these arguments. He ruled that the interviews did have a relevance to the issue, particularly because they could assist on the question which had been raised of the accused's suggestibility and he took the view that it would suffice if the jury were warned not to assume that his performance at the time of those interviews necessarily indicated how he might perform at trial. In due course, indeed, in summing-up the judge gave the jury such a warning. He acknowledged the risk of some prejudice, but he concluded that that could be guarded against by appropriate directions to the jury. He decided that the probative value of the interviews was not outweighed by the prejudice which they would cause. 35. On behalf of the appellant Mr Lee now seeks leave to challenge that ruling. He disputes the relevance of the interviews, arguing that they could not have been probative of the appellant's mental state in December 2002 when that issue arose to be determined, particularly because there was evidence that his mental state was slowly deteriorating over time. It is submitted that, even though the interviews contained a number of lucid answers by the appellant, they were irrelevant. 36. Further, it is also submitted that given the nature of the allegations which were spelt out in the interviews, allegations made of course by the complainant in this matter, the jury might have failed to focus solely on the true issue of the appellant's fitness to plead. Mr Lee describes the interviews as a prejudicial distraction because of their contents. 37. We deal, first, with the issue of relevance. It seems to this Court that the transcripts of what the appellant had said in 2001 had some relevance to the issue before the jury. It was the only first-hand detailed description available to them of how the appellant answered or dealt with questions put to him, which was potentially of value to them on this issue. They did not after all have the advantage of hearing from the appellant in the witness box. Of course, they had to bear in mind that they were concerned with his mental state in December 2002, not in 2001 at the time when the interviews were conducted. But it is not right to say that the appellant's mental state was slowly deteriorating since those interviews took place. The evidence of all three psychiatrists tended to show that his mental state had in fact improved, if anything, by June and July of 2002, certainly as compared to what Dr Jones had found in March of that year. The reality seems to have been that the appellant's mental state may have fluctuated somewhat over time. 38. Certainly it would have been more valuable in those circumstances to have had interview material in question and answer form available shortly before the date when this issue was tried, but we do not accept that the interviews from 2001 were without relevance or probative value. Moreover, both Dr Jones and Dr Lock had made use of them and had to some extent relied on the interview transcripts in making their own assessments. 39. Mr Campbell, on behalf of the Crown, tells us that he cross-examined Dr Jones about the interviews and the appellant's apparent lucidity as revealed in them and did so in some detail. It was after that that the jury asked to see the interviews. We also accept that the interviews showed that the appellant's long term memory was reasonably good so that he could remember details of the events giving rise to the charges. This tended to confirm, therefore, the finding of the psychiatrists that, if anything, it was in respect of his short term memory where there were problems. We conclude therefore that the interview transcripts were relevant to the issue which the jury had to try. 40. If that is right, then what remains is the judge's exercise of his discretion under section 78 of PACE . That exercise of discretion is one with which this Court will normally only interfere if it is perverse: see Quinn [1995] 1 Cr App R 480. It is certainly true that the interview transcripts contained material prejudicial to the appellant, but that presupposes that the jury was not prepared to follow the judge's careful directions as to how they should approach the issue before them, namely, fitness to plead. We have already emphasised the careful and detailed way in which the judge directed them on that issue. The jury, in any event, were bound to hear about things said in interview because the psychiatrists' reports dealt with what had been said by him in the course of those interviews by the police. 41. The judge here approached the balancing exercise required under section 78 of PACE in a proper manner, and, whether this Court would have arrived at the same result or not, it cannot, in our view, be successfully contended that that result fell outside the limits of the decisions properly open to the trial judge in the circumstances of this case. We do not find that his exercise of discretion was perverse. In those circumstances we reject the application for leave to appeal on this further ground. 42. It follows that the appeal against conviction must be dismissed.

2003_11_14-136.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3452/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/3452

df424d35f6708386e7ef918f8bb01f009203ee1260f2be269ec33bcfc3360b07

[2009] EWCA Crim 733

EWCA_Crim_733

supreme_court

Neutral Citation Number: [2009] EWCA Crim 733 Case No: 2008 02391/A1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM STAFFORD CROWN COURT HHJ Glen T20070144 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/04/2009 Before : LORD JUSTICE THOMAS THE HON. MR JUSTICE BLAKE and THE HOM. MR JUSTICE BURNETT - - - - - - - - - - - - - - - - - - - - - Between : Robert Lwellyn Hicks Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 733 Case No: 2008 02391/A1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM STAFFORD CROWN COURT HHJ Glen T20070144 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/04/2009 Before : LORD JUSTICE THOMAS THE HON. MR JUSTICE BLAKE and THE HOM. MR JUSTICE BURNETT - - - - - - - - - - - - - - - - - - - - - Between : Robert Lwellyn Hicks Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms J. Josephs (instructed by Millerchip Murray Solicitors) for the Appellant Mr. S. Rippon (instructed by CPS ) for the Respondent Hearing dates : 18 th February 2009 - - - - - - - - - - - - - - - - - - - - - Judgment The Hon Mr. Justice Blake : 1. On 8 th May 2007 at the Crown Court at Stafford this applicant pleaded guilty to 14 offences relating to indecent photographs of children. On 22 nd June 2007 HHJ Glen sentenced him as follows: on 12 counts of making indecent photographs of children he was sentenced to a term of imprisonment for public protection with a specified minimum term of six months. For two counts of having indecent photographs of children he was sentenced to an extended sentence of five years, made up of a custodial term of one year’s imprisonment and an extension period of four years concurrent. 2. The matter comes before this court by reason of directions made by the court on the 16 th October 2008 when the applicant’s own grounds by way of challenge to his sentence were rejected, but the question was reserved for consideration as to whether the sentence of imprisonment for public protection could stand in the light of the decision of this court in R v Terrell [2007] EWCA Crim 3079 reported at [2008] 2 All ER 1065 and [2008] Criminal Law Review 320. 3. The applicant is now 54 years of age having been born in April 1954. The sentence that is the subject of this application is the third occasion that he has been before the courts. On the 4 th July 2003 at Stafford Crown Court for 18 offences of making indecent photographs or pseudo photographs of children between the 11 th September 1998 and 14 th November 2002 and one count of possession of an indecent photograph or pseudo photograph of a child on the 14 th November 2002 he was sentenced to nine months imprisonment concurrent on each offence with an extended licence period of 24 months and related orders connected with a sex offenders notice and forfeiture and destruction of the materials and the computer on which they were contained. On the 7 th February 2005 on four counts of making indecent photographs and 11 counts of possessing them he was sentenced a total of 15 months imprisonment and a 24 month period of extended licence. Those offences were committed between the 11 th November 2003 and the 3 rd June 2004, that is to say the offending had begun almost as soon as he was released from his first sentence imposed at Stafford Crown Court. The applicant was released from his second sentence of imprisonment in November 2005. On the 22 nd January 2006 he was seen in a computer store, PC World where he purchased an external hard drive in the store. An alert member of staff who happened to know the applicant and knew that he was not supposed to own a computer obtained a copy of the receipt and informed her manager of what she had seen. The authorities were contacted and on the 22 nd January 2006 police officers attended at the applicant’s home address. A computer was seen in the applicant’s bedroom displaying images of young girls. The applicant was arrested, his premises searched and a further lap top computer and removable hard drive with a quantity of DVD’s, floppy discs and CD’s was also recovered from a downstairs room. 4. Analysis of the equipment revealed a total of 1139 still images of children that were indecent of which 1133 were at level one, one at level two, one at level three and four at level four. There were 70 indecent moving images of which 69 were at level one and one was at level two. The applicant was in breach of his licence conditions by retaining a computer and arranging for the installation of broadband connection and downloading indecent images of children since his last sentence. Moreover, children’s clothing was recovered from a downstairs room. It was uncertain when that clothing had come into the room and the judge recognised that it may have been left over from his previous offending in which case he had not disposed of it in the two months that he had been released on licence. 5. The offence of making an indecent photograph under section 1 of the Protection of Children Act 1978 as amended by the Sexual Offences Act 2003 is punishable by up to 10 years imprisonment. It is therefore a specified sexual offence that is a serious offence within the meaning of 224 of the Criminal Justice Act 2003 . The court was accordingly required to consider whether it needed to impose a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003 . It therefore had to consider whether it was of the opinion that “there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences” ( Section 225(1) (b)). 6. In considering that question under the terms of the Criminal Justice Act 2003 before amendment by the Criminal Justice and Immigration Act 2008 the court had to approach that question by applying the adverse presumption of risk in section 229(3) and considering whether it would be unreasonable to conclude that there is such a risk. 7. The learned judge had before him the undoubted fact of persistent offending within a short period of time on release from a previous sentence for an identical offence and rapid breach of the terms of the licence attached to that release. He concluded, as in these circumstances he was bound to, that there was a substantial risk of this applicant committing further offences that were specified sexual offences. The learned judge also had a pre-sentence report and a report from a clinical psychologist Dr Hull. The conclusion of the psychologist’s report was in these terms: “with regard to the risk of progression to contact offending Mr Hicks past history and his attitude to his offending does suggest that he presents a risk of progressing to contact offending. He has shown himself to have a persistent sexual arousal to images of children, and he has reported a degree of identification of children stemming from his own abuse. These are both risk factors for contact offending. However, he has not reported that he sees the abuse of children to be in any way justified or beneficial to them and there is no evidence that he has sought out children for the purpose of abuse or has begun to groom them for this purpose. Hence the risk of contact offending while present is unlikely to be high or immediate. It is more likely that contact offending remains an action to which he may progress in the medium to long term if his issues are not addressed.” Although the psychologist had seen a number of the background papers in the case and material relating to his previous term of imprisonment, it appears he had not seen the pre-sentence report when making that assessment. The pre-sentence report gives details of the offences for which he was sentenced on the second occasion shortly after his release from his first sentence of imprisonment on the 14 th November 2003. On the second occasion he was found to have a total of 271 indecent images on his computer. Some of those were images that he had taken himself of young girls and had doctored. He had advertised a fake photography business on the internet and lured unsuspecting teenage girls to pose for him in skimpy outfits under the pretence of creating a modelling portfolio. Images he had doctored were faked to depict semen smeared on the faces of the girls concerned. It was therefore pointed out in the pre-sentence report that he had in the past become involved in actual contact with children. Other than the details in the pre-sentence report little else was available to the judge about those offences. 8. The details of the conduct of the applicant in respect of the second group of offences are potentially of the utmost concern and highly relevant to the assessment of what future risk he may pose to a section of the public. At the time of the hearing before the sentencing judge and before us, however there was a paucity of information about these matters apart from what was obtained in the pre-sentence report. In particular it was not known: i. What the age of the girls were who attended in response to his advertisement. ii. What the images were that he had taken of them before they were doctored. iii. What he did with the images after they had been doctored, whether circulated on the internet or brought to the attention of the girl concerned. He has never been charged with an offence of grooming girls for the purpose of sexual offences contrary to s.15 Sexual Offences Act 2002 or any form of sexual assault. 9. The judge’s sentencing remarks began by recognising that if he were to impose a determinate sentence it would have been in the range of six to twelve months. He then considered cases where sentences of IPP had been upheld for similar offending. He then referred to the case of Howell [2007] Criminal Law Review 395 and said: “the judge at first instance in that case… acknowledged as I do that making indecent photographs is not in itself a crime that involves direct personal contact with children but observed that people who looked at images of this kind were watching real children and the process involved the exploitation of real children for the purposes of sexual gratification. Some of the markets in the material existed because there were those who wished to examine it and derive satisfaction from doing so. From what I read in (Dr Hull’s) report you plainly derived such satisfaction and are aroused by this sort of material. In the case of Howell the sentencing judge concluded that the appellant presented a significant risk of substantial harm to children based on the pattern of misconduct in that case. The Court of Appeal found he was fully entitled to reach the conclusion that he did and the Appellant was properly regarded as someone who fell within the meaning of dangerousness. I was very concerned today when I read the report of Dr Hull. Some of the contents are worrying. He says that you show a tendency to minimise the consequences of your offending and to downplay risk you may present in future, which has persisted despite your attendance at the sex offenders’ treatment programme. That, he says, suggests you are still adopting a strategy of minimising rather than confronting your own difficulties in this area. If you were to be released and allowed access to computer equipment you must be regarded as being of moderate to high risk of continuing to seek out indecent images. Your past history and your attitude to your offending does suggest you present a risk of progressing to contact offending. You have shown yourself to have a persistent sexual arousal to images of children and you have reported and agree identification with children stemming from your own abuse. I should say that the doctor’s view is that contact offending while the risk is present is unlikely to be high or immediate. I regard you as presenting a risk of contact offences and I regard it as a significant risk. People like you encourage those who perpetrate child abuse to operate and corrupt children. Children suffer prolonged physical and emotional and psychological emotional abuse from this sort of behaviour in providing entertainment for people like you, something you appear blindly oblivious to.” He concluded that he had no doubt that the higher level of serious harm specified in the Criminal Justice Act 2003 was present. 10. Following the sentence imposed upon him the applicant has remained in prison. We understand that he has been refused release on licence by the parole board. He has thus served some 18 months imprisonment, three times the minimum term identified by the judge. We are also conscious that if the applicant were to be sentenced again for the sentences for which he was sentenced in June 2007 then having regard to the tariff and range of custodial terms available for possessing or making indecent images of children he might not receive a specified term of 2 years or more and thus would no longer be eligible for a sentence of imprisonment for public protection under the Criminal Justice Act 2003 as amended by the 2008 Act . 11. Six months after this sentence was imposed upon this applicant this court delivered its judgment in the case of Terrell where it considered in a reserved judgement the nature of the harm occasioned to members of the public by the offence of possessing or making images by downloading them from the internet. It first observed at paragraph [23] that: “The provisions of the CJA must be interpreted purposefully and with the statutory consequences in mind if they are not to be applied far more intensively than parliament intended. The serious consequences signal the degree of risk and gravity of harm which the offenders specified re-offending must occasion. The seriousness of the harm required by the CJA is emphasised by the words “death or serious personal injury”. The latter phrase is deliberately coloured by the associated word death and stands in contrast with the language in the Sexual Offences Act and is on the serious harm occasioned by that offenders re-offending which the Criminal Justice Act requires attention to be focused.” At paragraph [26] it noted: “the serious harm thus relied on here is the harm to children through the perpetuation of the market or distribution networks for indecent images. This puts children at risk of being forced to participate in the activities leading to such images or causes psychological harm to a child who realises either at the time or later that images of him or her are being used as object of perverted sexual gratification.” It then concluded: “27. In all these circumstances the re-offending which is at risk would make a direct but small contribution to the market or distribution of such indecent images. That is turn would make an indirect but small contribution to the risk that indecent images of children would be taken. A child groomed or made to participate in sexual acts for those purposes may suffer serious harm of one sort or another depending upon the activity. A child who becomes aware that he or she is being photographed for sexual gratification of an adult who may not even be known to them may suffer serious psychological harm. 28. In our judgment it cannot reasonably be said in a context of these particular statutory provisions that there is a significant risk of this applicants re-offending occasioning harm to a child or children whether through perpetuating the market or through further indecent images being taken or through a child becoming aware of the indecent purposes to which photographs might be put. The link between the offending act of downloading these indecent images and the possible harm which might be done to children is too remote to satisfy the requirement that it be this appellant’s re-offending which causes the serious harm. Worse, there would be an indirect and small contribution to a harm which might or might not occur depending on whether further photographs were taken in part as a result of the appellant’s contribution to the market or depending on whether a child found out about the uses to which they were put as a result. The imprisonment for public protection provisions of the CJA do not apply in the circumstances here where simply as a matter of generalisation a small, uncertain and indirect contribution to harm may be made by a repeat of this offender’s offending. No significant risk of serious harm of the requisite gravity occasioned by a repetition of the offending in this case by this offender can reasonably be said to exist.” 12. In our judgment, those observations apply with equal force to the offences to which this applicant pleaded guilty and for which he was sentenced in June 2007 and appear to have applied to the circumstances of his first offences. We are bound to apply this reasoning to the present appeal. The court in Terrell made it quite plain that serious harm of the level required to justify imprisonment for public protection could be made out where an appellant risked progressing to physical contact offences or becoming a photographer or a commissioner of indecent images or playing a more significant role in a distribution network. In the case of Terrell itself some photographs were found on the offender’s computer of images taken of children on a public beach. They were not indecent. The court noted “there is no suggestion here however, the appellant has any contact with children who he might seek to photograph or commission others to photograph himself for sharing or using for a means of gaining access to a network”. 13. The court was equally alert to the risk of serious harm that might occur where a family member abuses the trust of a child to take indecent photographs and the child becomes aware that that trust has become abused and indecent images are being circulated or distributed with the consequences that serious psychological harm is caused. 14. The present case imposes a difficult question about whether the threshold for a sentence of imprisonment for public protection was met in this case. The circumstance of the second offence demonstrate that this offender had in some way moved on to contact with children by setting up the photo-studio and soliciting the attention of young girls, although had not apparently groomed them for indecency or had not assaulted them and had not appeared to distribute images of them on the internet. 15. The learned judge in his sentencing remarks placed particular emphasis upon the report of the psychologist, although that report did not comment upon the conduct in the second group of offences, and in terms it could do no more than indicate that those addicted to indecent photographs of children might well progress to contact offending. 16. If the only risk in this case was of repetition of downloading indecent images from the internet for personal observation by this appellant without onward circulation or abuse of trust then his contribution to the general market in indecency could not be said to “occasion” any serious psychological harm that might occur to children whose images this appellant was looking at. 17. However, if this applicant were to seek to lure young children to his premises in order to photograph them, make those images obscene by modification and if that process had become known to such a child or the child was assaulted indecently or otherwise groomed for indecency then there was a real risk of serious harm being caused by this applicants future re-offending. 18. When the matter came before us on the 18 th February 2009, we were most concerned to find out more about the circumstances of the second offence and any other information about this appellant since the sentence of IPP was passed. The case summary has now been provided to us. The information supplied causes us real anxiety as it appears: i. On release on licence on 11 th November 2003 he refused to sign his licence agreement indicating that he did not agree with some of the conditions attached to his release. ii. A short period after release on licence he set up and advertised his business called “Pro Model studios” on internet sites. A number of teenage girls replied to his site and this led to photographs being taken and supplied to the girls in question for free. iii. Three contacts with young girls were investigated by the police. One involved a 13 year old girl who was photographed by the appellant at her home. Her mother was aware of the photographic session and had indicated that the girl was not going to wear the inappropriate underwear and scanty clothing that the appellant had wanted her to. The appellant sent the photographs but appeared to want to continue communication and contact with the girl in question. He misrepresented his age as being younger than it really was. iv. Two other young women of 17 years of age had responded to the advert and had photos taken free of charge by the appellant. One had received the images back and the other had not. v. When the appellant’s home was searched in addition to the doctored photos, boxes of scanty teenage clothing were found in the premises. vi. The doctored photos related to the 13 year old and one of the 17 year olds. The mother in the former case and the subject of the photos in the latter were shown the doctored photos by the police and are understandably angry and disgusted by what they were shown. 19. We accept the submissions made on behalf of the Crown that in the past this offender had gone beyond what the appellant in Terrell had done. His repeat offending so soon after release on licence demonstrates his addiction to downloading and looking at these images, his disregard for the terms of his licence conditions and his failure to address the nature of his offending. Clearly there is a risk that he could progress to contact offences of a kind that are capable of creating serious harm. 20. However, on the information now available to us we cannot conclude that in the past he had in fact committed contact offences as opposed to offences of possession or making images. The images of the 13 year old were taken at the subject’s home with the knowledge of the mother, albeit in ignorance of his past. None of the images arising from the photographic sessions were indecent. There has been no charge of sexual grooming or assault. The doctored images have not been circulated on the internet for use by others. Disgust at the images is not the same as serious psychological injury. 21. This offender’s conduct has not got worse in the short time that he has been at liberty since the second group of offences. The nature of the images that he had collected since his release was overwhelmingly at level one and there were no level five images. There was no evidence of attempted contact with children or of circulation of images to other offenders interested in such images. 22. In our judgment and applying the words of Lord Justice Rose in R v Laing and Ors [2005] EWCA Crim Div 2864 reported [2006] 2 Cr App Reports (S)3 at [17.4] “repetitive, violent or sexual offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future. There may, in such cases, be some risk of future victims being more adversely affected than past victims but this of itself does not give rise to significant risk of serious harm.” 23. It is not enough that there is a possibility of future offending that might occasion serious harm. The risk of such harm being occasioned by future offending must be significant. That requires some evidential basis from which it can be assessed that either serious harm caused in the past will be repeated, or that the offender will move on to more serious offences that give rise to a significant risk of serious harm. 24. We are deeply troubled by what this offender did on the second occasion of these offences, and the potential for progression that conduct indicates. However, we conclude that the information available about the past was not such as to indicate that he had caused serious harm to members of the public by that offending, and the circumstance of the offences for which he was being sentenced by this judge did not disclose any element that could be said to give rise to a significant risk of serious harm. 25. On that basis, by the narrowest of margins, we have concluded that the necessary factual foundation for a sentence of imprisonment for public protection was not made out, for reasons given below we reach this conclusion taking into account the terms of a sexual offences prohibition order we intend to impose. In our judgment, the learned judge was combining the real likelihood of further downloading offences, the generic harm that he recognised could be caused to children by such offending, and the psychologist’s assessment of factors that show the potential progression to contact offending. The learned judge was not indicating that he had already caused such harm by contact offending and can be presumed or assessed as likely to repeat that harm or progress to it by new levels of offending. 26. In the case of Terrell itself this court accepted that it maybe in making these difficult assessments that the terms of a sexual offences prevention order can be taken into account in assessing whether the risk in the future of committing the kind of offence from which serious harm could occur is significant. At paragraph [32] it indicated : “if apt and effective restrictions could be imposed through a SOPO e.g. use of a computer internet access possibly contact with individuals or children which would address the degree of risk and the seriousness of harm, the statutory criteria might not be satisfied… the same effect would be true of other penalties or orders.” An indeterminate sentence is not required by the 2003 Act where other available measures can contribute to the conclusion that the criteria are not met. 27. We are conscious that the stringent terms of his licence were readily and repeatedly violated by this offender. It so happens that he has never been subject to a sexual offences prevention order and we have considered with the assistance of counsel whether a stringent order in draconian terms could be made in this case. Doubtless, now that a minimum specified term of 2 years is required before an IPP can be made under the amended statutory provisions future courts may be examining with care the role that a stringent SOPO can play in securing protection for the public. 28. In our judgment this offender should not be permitted unsupervised contact with children under 16 or access to equipment capable of downloading indecent images or interfacing with internet chat rooms to which children below the age of 16 may be contributing and indeed should not be permitted to take photographs of anybody that will enable him to store his own images upon the computer and turn them into indecent ones. We fully appreciate that the terms of such an order cannot prevent a determined offender from committing further offences. But combined with the experience of the term of indefinite imprisonment to which he has already been subject and the potential penalties that are likely to be visited in the future for a breach of the terms of a SOPO we conclude that they will make a material contribution to deterrence. 29. Although, we have concluded that a sentence of imprisonment for public protection for the present offences cannot be upheld because there was insufficient information from which an assessment of significant risk of future harm by the future commission of specified offences could be sustained, the risk of future offending is a substantial one. The potential danger that this applicant presents to young people in general is a real one and certainly the somewhat different test under Section 104 of the Sexual Offences Act 2003 is satisfied in this case. 30. We therefore propose to grant permission to allow, allow the appeal to the extent of quashing the sentence of imprisonment for public protection and substitute for it a determinate sentence of 12 months less the days spent on remand but impose forthwith the terms of a stringent SOPO set out in a schedule to this judgment that will apply indefinitely to this offender from the date of his release which will be from immediate effect. 31. We direct that a copy of this judgment and the terms of the SOPO be served on the Chief Officer of Police of the place where this applicant will reside. He is subject to life long notification under the sexual offenders register, and therefore he must provide his police force with his place of residence. By the terms of paragraph 13 of the SOPO that we propose to impose he is obliged not to refuse the police access to his premises in the event that they choose to make a spot visit to detect whether he has obtained any equipment that would breach the terms of the order. In making this condition we have considered the recent guidance of the Court of Appeal in the case of R v Edward Thompson [2009] EWCA Crim 3258 The Court concluded that such a requirement is an onerous one that should not be routinely imposed. It concluded at [16] however that it did not fall outside the statutory requirement of prohibiting acts rather than imposing mandatory obligations. It considered the question of proportionality and whilst at [24] it set aside such a term, it did not exclude the making of such a provision generally and for the reasons given above, we conclude that this is a case of such seriousness that such a term is both necessary and proportionate. 32. We certainly expect that this offender will be regularly and effectively monitored. If evidence of a breach of these conditions is found it will enable him to be prosecuted for doing things that would otherwise be lawful. He should be under no illusion that the penalties for breach of this order are likely to be substantial. His persistent disregard hitherto for the terms of his licence cannot be tolerated. But for the reasons we have given this appeal is allowed. Schedule: Terms of the Sexual Offences Prohibition Order made pursuant to s.104 Sexual offences Act 2003 : Robert Hicks is prohibited from: 1. Being in the company of any person under the age of 16 years unless that person is supervised by an adult over the age of 21, and with the consent of that person’s parent or guardian given in the full knowledge of the appellant’s sexual offending history . 2. Living in the same household as any person under the age of 16. 3. Entering any park, swimming pool, recreational area, school or other premises where children under the age of 16 are likely to be present for recreational purposes. 4. Undertaking any activity (whether paid, voluntary or recreational) which is by its nature likely to bring him into unsupervised contact with a person under the age of 16 years, without the written approval of the Chief Officer of Police of the area in which he lives. 5. Seeking out with a view to speaking to or communicating directly or indirectly with any person under the age of 16 save with the consent of that person’s parent or guardian given in the full knowledge of the appellant’s sexual offending history . 6. Owning or having personal possession of any piece of equipment or device that is capable of connecting to the internet. 7. Owning or having personal possession of any piece of equipment or device capable of taking, making or storing images or photographs, or any piece of equipment or device or software capable of altering images or photographs. 8. Owning more than one SIM card or having more than one mobile telephone number. 9. Registering a SIM card or mobile phone number other than in his correct name and at his current residential address. 10. Using a device of the nature described in condition 6 (above) save at premises approved by the Chief Officer of Police of the area in which he resides. 11. Accessing any site or material on the internet relating to persons under the age or 16 or advertised or marketed as suitable for such persons, accessing any internet chat room or accessing any site or material containing explicit sexual material. 12. Downloading or otherwise making or collecting images of children under 16. 13. Changing his address without notifying the Chief Constable or Chief Office of Police of the area in which he lives. 13. Refusing entry to any premises owned, occupied or controlled by the appellant to police officers who require entry to monitor compliance with the terms of this order. This order is to remain in force indefinitely or until further order.

2009_04_21-1902.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/733/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/733

474e7409d29cb4a495a4f2593358b639a68b0069fe569c66771815d7d8b8639f

[2005] EWCA Crim 2320

EWCA_Crim_2320

crown_court

No: 05/2989/A9 Neutral Citation Number: [2005] EWCA Crim 2320 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 9 August 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE HUGHES THE COMMON SERJEANT OF LONDON HIS HONOUR JUDGE BARKER QC - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 55 OF 2005 (JEFFREY LEE) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal W

No: 05/2989/A9 Neutral Citation Number: [2005] EWCA Crim 2320 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 9 August 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE HUGHES THE COMMON SERJEANT OF LONDON HIS HONOUR JUDGE BARKER QC - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 55 OF 2005 (JEFFREY LEE) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS SARAH WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL MR BARRY GRENNAN appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: This offender is now 18 years of age, 17 at the time that he committed the offence, having been born on 15th December 1986. On 31st March 2005 he pleaded guilty to one count of wounding with intent. The matter was adjourned for the preparation of pre-sentence and psychologists' reports. When the matter came back before the Crown Court on 28th April 2005 His Honour Judge Lyon sentenced the offender to a community rehabilitation order for three years with a condition that the offender should attend an anger management course called CALM. A community punishment order for 80 hours was imposed and a curfew order for a four-month period. The curfew was to operate between 9 pm and 7 am. The Attorney General seeks leave to refer that sentence to this court pursuant to the provisions of section 36 of the Criminal Justice Act 1988 ; and we give leave. 2. The circumstances of the offence are as follows. The victim was a friend of the offender; and on the night in question the two of them had gone out together and with the victim's brother intending originally to go to a golf driving range. The brother, however, was wanting first to play football and so dropped the victim and the offender off at a public house to wait for him to return. The victim and the offender had a number of drinks at two public houses. Eventually, when the victim's brother returned, it was too late to go to the golf driving range and the victim and the offender then went off themselves, the victim firstly to a takeaway for something to eat. He then rejoined the offender, who was at the time outside the home of another mutual friend. The victim went up to the offender and jokingly pushed him and called him a "dickhead". This was intended simply in jest and was not intended in any hostile way. However, the offender completely lost his temper. He attacked the victim and clamped his teeth on to the victim's right ear so severely that the ear was eventually torn off. When that happened, the victim tried to push the offender away. The offender then bit the index finger of the victim's right hand so hard that subsequently it required substantial stitching. Unhappily it was not possible to replace the ear, despite attempts by the plastic surgeons to do so. The victim therefore faces reconstructive surgery, if that can achieve anything for him, over a significant period. He is now clearly and will always remain to some extent disfigured. 3. It was a terrible thing that the offender had done and he himself subsequently recognised it. He was at the time living with foster parents. He told his foster father when he returned home that night that he had done a terrible thing. He kept saying, "What's wrong with me? There's something wrong." The foster father took him back to the scene, saw the police and told them who had done it. The offender then disappeared, but he surrendered himself after a short time. He was interviewed and gave his account of how the incident occurred. He accepted that he had drunk five pints of lager and two shots of vodka during the evening and that he had been drunk. He expressed clear remorse for what he had done. 4. It was in those circumstances that the matter came before the court for plea and was, not surprisingly, put back for reports. 5. The pre-sentence report told a sorry tale of a seriously disturbed background. Clearly for a significant proportion of this young man's life he had lived in an atmosphere of violence. His mother had had which he was living with her seven either partners or husbands. He was treated with violence by a significant number of them. He would escape into the streets, where he would roam without any support and was, not surprisingly, ultimately taken into care. Eventually he was placed with the foster parents, Mr and Mrs Jeffries. 6. The psychiatric report and the clinical psychologist's report which were before the judge made it plain that that background had seriously damaged this young man. He was subject to attacks of anger, which were clearly related to his feelings of rejection and the violence which he had suffered. 7. His position was not helped by the fact that when he committed this offence he was subject to a supervision order which had been imposed in September 2003 for an offence of inflicting grievous bodily harm. That would appear to have occurred at a time when he was with the Jeffries and they had found him very difficult to deal with. Subsequent to the making of the supervision order, he had been provided with his own accommodation, but he had found that very difficult to cope with. He then returned to the Jeffries and was living with the Jeffries when this offence with which we are concerned occurred. The evidence provided by both the foster parents made it plain that they had seen a considerable change in his behaviour in the period leading up to this offence. They were concerned about his drinking, but in other respects he appeared to have been anxious to make for himself a sensible future. It was in those circumstances that the pre-sentence report in particular suggested that there was a real prospect that this young man could benefit from further help beyond a mere supervision order which had clearly been insufficient to address his needs. It suggested the package of support which the judge ultimately imposed. That was fully supported by the psychiatrist and by the psychologist. It was in those circumstances that the sentencing judge took what the judge appreciated was an exceptional course in deciding that it was possible to take a further chance with this young man in order to see whether or not he could recovered effectively for society from the mess that his upbringing had created. 8. There is no doubt, as Miss Whitehouse has submitted on behalf of the Attorney General, that this was a case which would otherwise have cried out for a substantial sentence of detention. One would not have been surprised had that sentence been somewhere in the region of four to five years. But it seems to us that there must always be room, even in cases such as this, for a judge, particularly an experienced judge like His Honour Judge Lyon, to be entitled to take the view that there is material before him which justifies the conclusion that the particular case justifies a different course. On the material before this judge, we consider that he was entitled to do so. Clearly it was accordingly a lenient sentence, but there was a justification for it here which, as a result, means that we do not consider that it would be appropriate to interfere with it. 9. There is however an unhappy postscript: unfortunately, the offender has not taken advantage of the sentence that was imposed by the judge. An addendum to the reports that were provided to the trial judge makes it plain that breach proceedings either have been or are about to be taken which will result in this young man being brought back before Judge Lyon for sentence. That is, as we say, a sad ending to the story, but that does not, it seems to us, entitle us to conclude that the original order made by His Honour Judge Lyon is one with which this court could properly interfere. Accordingly the application is refused.

2005_08_09-579.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2320/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2320

c1cf371b3db1415a86c92938abca5963c9dab7ba67e3306b73ce137a33a2d258

[2009] EWCA Crim 380

EWCA_Crim_380

crown_court

Neutral Citation Number: [2009] EWCA Crim 380 Case No: 200805151 A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 20th February 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE LLOYD JONES MR JUSTICE CRANSTON - - - - - - - - - - - - - - - R E G I N A v JOSEPH BENJAMIN PULLEN - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street L

Neutral Citation Number: [2009] EWCA Crim 380 Case No: 200805151 A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 20th February 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE LLOYD JONES MR JUSTICE CRANSTON - - - - - - - - - - - - - - - R E G I N A v JOSEPH BENJAMIN PULLEN - - - - - - - - - - - - - - - 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 Taylor appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: Mr Justice Lloyd Jones will give the judgment. 2. MR JUSTICE LLOYD JONES: On 11th August 2008 at the Crown Court at Kingston upon Thames, the applicant pleaded guilty and on 15th September 2008, he was sentenced by His Honour Judge Samuels QC as follows: Count 1 for destroying property and being reckless as to whether life was endangered, imprisonment for public protection; Count 2 for common assault, four month imprisonment to be concurrent; Count 3 for dangerous driving, 15 months imprisonment to be concurrent. The total sentence was one of imprisonment for public protection. The period of 30 months, less the 105 days spent in custody on remand was specified under section 82 A of the Powers and Criminal Courts Sentencing Act 2000. He was also disqualified from driving for five years with a direction that thereafter he take an extended retest. 3. He now renews his application for leave to appeal against sentence following refusal by the single judge. He has been represented before us today by Mr Taylor of counsel acting pro bono and we are grateful to him for his submissions. 4. On 31st May 2008, the applicant went to see his girlfriend, who lived in New Malden and was employed as a nanny. She had been away with her employer as part of her job. This appeared to have made him jealous and angry and after she opened the door, he pushed his way past her and snatched her mobile phone from her before going back outside. She went after him in order to retrieve her phone, whereupon he slapped her on the cheek, causing pain and reddening. That gave rise to Count 2. 5. He then told her that he was going to her employer's home to cause trouble which would mean she would lose her job. He then drove off in his Land Rover Freelander. She followed him on her bicycle and he tried to hit her with his vehicle before he blocked the road, which caused an argument with another driver. Whilst that was happening, she was able to cycle away. 6. The incident was reported to the police and officers spent the remainder of the day looking for him. That evening he was seen to drive past the woman's home twice. At 11.40 pm, the applicant was again seen to drive past her home and on this occasion, the officers decided to stop him. They illuminated the lights on their car and indicated to him to stop. He pulled over and the police car stopped behind him. The officers alighted and approached the applicant's Freelander. As they did so, they heard him revving the engine and he then reversed at speed towards the police car, causing the officers to dive out of the way to avoid injury. He reversed into the police car, causing it to move back between five and ten metres and the front end to concertina. He then shouted, "Come on, if you want to make something of it" before he drove off. The officers summoned assistance. 7. Two other officers were driving a marked police car and were in the area. They commenced a search and as they drove round the roundabout, the applicant deliberately rammed the passenger side of their vehicle at speed. He did not stop but drove off at speed. As a result, one of the officers sustained minor injuries to his arm. That gave rise to Count 1. 8. The officers were able to give chase, in company with other police vehicles. During the ensuing chase, the applicant drove with complete disregard for the speed limit, traffic lights and other road users and on at least three occasions deliberately reversed his vehicle towards chasing police vehicles. 9. The chase took place along Kingston Road where he drove at 60 m.p.h in a 40 m.p.h per speed limit. In Ruxley Lane he drove through a red light, causing another vehicle to break and swerve to avoid a collision. He then started to reverse towards the chasing police car at speed, causing a police car to swerve out of the way to avoid being hit. He got within about a foot of the vehicle before driving off again towards the Ewell bypass, again driving in excess of the speed limit through red lights and causing other vehicles to stop or swerve out of his path. 10. Shortly after he had gone through a junction, he reversed his vehicle towards the police car causing the police car to have to reverse back through the junction in order to avoid being hit. Officers were fearful of the danger that they would have hit other road users or pedestrians by reversing. 11. He continued along the Ewell bypass, still driving in excess of the speed limit and through red lights, into a residential area around Tattenham Corner, where he reached speeds in excess of 80 m.p.h. At about this time he turned off the lights on his vehicle and turned onto Epsom Downs racecourse. He did so by driving into a car park and then smashing through a fence. By this time he was pursued by about three other police vehicles one of which he managed to ram. Whilst on the racecourse, he drove his vehicle in effectively ever decreasing circles in an attempt to ram the police vehicles that were following him by getting behind them. He still had his lights off at this time and he managed to hit at least one vehicle. 12. The police received an order to stop actively pursuing him but even after they had stopped pursuing him, he still tried to drive at them and ram them, and on one occasion drove deliberately and at speed towards the front of one of the police vehicles, still with his lights off, before switching to full beam as he got closer to the police vehicle, so that the driver of the vehicle was dazzled. The officers in that vehicle again feared that they would be hit, but managed to get out of the way. He then burst over a small embankment back on to the public roads, still driving with his lights off. 13. Eventually, his vehicle was brought to a halt when a stinger was laid across the road. He got out of his vehicle and ran off on foot but he was detained, arrested and taken to the police station. 14. In interview, he flatly denied assaulting his girlfriend and made no comment to all the other questions he was asked about his subsequent driving. However, he did say that he accepted that he had reacted stupidly and behaved like a fool. 15. The applicant was born in February 1965, so he was 43 years of age at the time of this incident. His previous convictions include six previous convictions for criminal damage, five for common assault, four for assault occasioning actual bodily harm, four for assault on the police, three for threatening behaviour, one for inflicting grievous bodily harm and one for an affray. 16. It is necessary to say something about two of those previous convictions. In February 2007 he was convicted of criminal damage and affray. He was sentenced to four years imprisonment for criminal damage with two years imprisonment concurrent for the affray. On appeal the sentence for criminal damage was varied by this Court to one of 45 months imprisonment to take account of a sentence for contempt of court which meant that he had, in effect, been sentenced twice for the same conduct. 17. These offences are particularly pertinent to the issues before us today. Immediately prior to those offences, Mr Pullen had lived with the victim. She had reported allegations of assault and threats to kill to the police. The applicant was arrested at the home that they shared as a result of these allegations. He was bailed on the condition that he stayed away from that address. One evening a month later, the complainant went out for the evening leaving her stepmother and one of her own children babysitting the younger children. At 10.45 pm, the stepmother heard a crash at the front of the house. Mr Pullen was found in the front room having gained entry through a window which he had broken. He commented that the house was his and that he was going to smash it to the ground and that he had come prepared. He called a taxi and removed the stepmother and the children from the property before starting to demolish the house. Mr Pullen, thereafter, continued in a two hour rampage of destruction, using the tools that he had brought with him for the purpose. Upon the arrival of the police, Mr Pullen continued smashing windows and other part of the house. 18. The occupants of the adjoining semi-detached property were evacuated. The Tactical Support Group arrived in company with an ambulance and the Fire Brigade. The Tactical Support Group finally forced their way into the property. The electricity was cut off and the place was in darkness. Mr Pullen then barricaded himself in the loft and threw down on the officers below television sets, furniture and a gas cylinder. There was a smell of gas and water was pouring down the walls. Mr Pullen admitted afterwards that had gone totally berserk. He smashed through onto the roof where he caused further damage to the property with a shovel and a hammer in his possession. 19. On that occasion, two psychiatric reports were prepared. They described him as suffering from severe depression, as a result of the breakdown in his relationship. That, they said, was the main factor relating to the above offences, coupled with provocation and enormous anger. 20. Mr Justice Rougier giving the judgment of this Court on his appeal against sentence in relation to those offences described him as having gone totally berserk. He described him as somebody who, in his view, was totally self centred and vindictive with no capacity whatever for controlling his temper in the face of opposition or when confronted with wrongs real or imagined. 21. The initial Pre-Sentence Report prepared for the sentencing hearing, in respect of the offences with which we are concerned today, recommended a suspended sentence order with requirements of supervision, two programmes and treatment for depression. 22. However, it later became apparent that the author of that report had not been aware of the details of the offences for which he was sentenced in 1997, to which I have just referred, or of the Court of Appeal judgment. As a result she was invited by Judge Samuels to review her report. She did so. In the addendum report, which she then produced, the author, Miss Douglas, concluded that she agreed with His Honour Judge Samuels that Mr Pullen did present a serious risk of harm to others, namely to females with whom he may commence further relationships and to members of the public in confrontational circumstances or in attempting to resist arrest. In those circumstances she said that she was unable to propose a community option as the court had already made clear that a custodial sentence for public protection was warranted. 23. In sentencing this applicant Judge Samuels observed that he would receive the appropriate credit for his pleas but he could not receive extensive credit as the facts spoke for themselves. His record clearly demonstrated that he had an anger management problem and that when he was frustrated he lost all self control. Until he satisfactorily addressed those characteristics, he posed a significant risk to members of the public of serious harm occasioned by his committing further specified offences. He had committed at least four previous specified offences. 24. The judge observed that the probation officer, who had not been aware of the details of the offences for which he was sentenced in 1997 or of the Court of Appeal judgment, had reviewed her report and now concluded that he did present a serious risk of harm to females with whom he might commence a relationship and to members of the public in confrontational situations. He continued: "I am thus satisfied that this is a case where the law obliges me to impose a sentence of imprisonment for public protection, not only for the protection of any partner with whom you might cohabit but police officers and members of the public foreseeably likely to be harmed by your reckless behaviour when you lose all self control. I add that this incident arose when, as far as I can see, this was the fourth victim of domestic violence who your behaviour has affected in this way." 25. The proposed grounds of appeal which are advanced by Mr Taylor before us today are, first, that the judge erred in concluding that only imprisonment for public protection was appropriate having found that the applicant was dangerous and having failed to consider imposing an extended sentence or other lawful sentence. Secondly, he submits that the judge erred in considering that the applicant's record showed that he posed a significant risk of serious harm. His previous offences were repetitive offending at a relatively low level, none of which resulted in serious harm. This, combined with a complete lack of previous convictions for serious offences, demonstrated that the judge's assessment was wrong. Thirdly, he submits that the judge placed undue emphasis on the assessment of the probation officer who had mistakenly thought the judge had already decided the applicant was dangerous. 26. We are totally unable to accept these submissions. The sentencing remarks do suggest that the finding of dangerousness must result in a term of imprisonment for public protection. Under the Criminal Justice Act 2003 , as amended, the judge was not obliged to impose a term of imprisonment for public protection, an extended sentence was an option that was open to him. However, we consider that in this case a sentence of imprisonment for public protection was the only appropriate sentence. This man presents a clear danger to members of the public of serious harm occasioned by him of further specified offences. He has a tendency to use violence against woman, he has shown a total inability to control his temper, when thwarted, and a total inability to learn from experience. 27. The second report, the addendum report, does appear to assume that the sentencing judge had already reached a conclusion on dangerousness. However, in that report, Miss Douglas, having reconsidered the matter, does come to the conclusion that he does present a serious risk of harm to others. The judge's sentencing remarks rely on the conclusion of Miss Douglas. The judge was entitled to rely on that. In any event, he was entitled to come to his own conclusion. There was ample material here to support that conclusion. 28. We are in entire agreement with the single judge that the submission made in writing that the damage caused on this occasion was, "an unfortunate and unintentional by-product of the driving and attempts to evade the police rather than a deliberate attempt to destroy property" is, in the circumstances which I have outlined, simply untenable. 29. In our judgment, the proposed grounds of appeal are unarguable. We refuse leave to appeal against sentence. 30. Finally, we note that the record sheet in this case requires to be amended to show that the offence of which the applicant was convicted on Count 1 was, in fact, destroying property being reckless as to whether life was endanger.

2009_02_20-1835.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/380/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/380

8897a98ed41904510bd88a4b5a5392ff718e1c62d51e0840843d4d91d1fd9328

[2022] EWCA Crim 79

EWCA_Crim_79

crown_court

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. [2022] EWCA Crim 79 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202101741/A4 & 202101878/A4 Royal Courts of Justice Strand London WC2A 2LL Tuesday 25 January 2022 Before: LADY JUSTICE CARR DBE MR JUSTICE WALL HER HONOUR JUDGE DHIR QC (Sitting as a Judge of the CACD) REGINA V DENNIS BOWIE ALICE McELHINNEY __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MR R JENKINS appeared on behalf of the Appellant Bowie MISS N DARDASHTI appeared on behalf of the Appellant McElhinney _________ J U D G M E N T LADY JUSTICE CARR: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with the provisions of the Act . Introduction 1. We have before us two appeals against sentence: an appeal by Dennis Bowie ("Bowie"), now 49, and Alice McElhinney ("McElhinney"), now 34. Both appellants, of previous good character, were adult volunteer members of the Sussex Army Cadet Corps, Bexhill Detachment. Bowie was at one point a detachment commander and McElhinney was a sergeant. Both appellants pleaded guilty to multiple sexual offences involving a then 14-year-old female cadet, whom we shall called "V". 2. For the very purpose of preventing the type of offending in question, one on one contact between adults and cadets in the Corps was strictly forbidden. Adults were forbidden from corresponding directly. The only contact which was permitted was via on open forum Facebook page. Adults were forbidden from touching cadets unless to do so was a necessary part of training or for safety reasons, and even then only in the presence of others. 3. Despite what were the clearest of rules, during the course of 2018 the appellants groomed V, plying her with alcohol and sending her sexual messages. They progressed to actual sexual activity with V, involving kissing her and groping her breasts and bottom over her clothing. The appellants would send messages to each other about these activities demonstrating their general sexual interest in female cadets under their command. 4. Bowie was sentenced on 28 May 2021 by Her Honour Judge Waddicor, sitting in the Crown Court at Lewes, to an overall sentence of five years and two months' imprisonment made up as follows: i) a single count of sexual communication with a child, contrary to section 15 A(1) of the Sexual Offences Act 2003 , 13 months’ imprisonment (count 5); ii) two counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 , seven months' imprisonment (count 7) and three years and three months' imprisonment (count 8); iii) three counts of making indecent photographs of a child, contrary to section 1(1) (a) of the Protection of Children Act 1978 , 10 months' imprisonment (count 10), five months' imprisonment (count 11) and one month's imprisonment (count 12). The sentence on count 8 was ordered to run consecutively to the sentence on count 5, to which the sentence on count 7 was to run concurrently. The sentence on count 10, to which the sentences on counts 11 and 12 were ordered to run concurrently, was ordered to run consecutively to the sentences on counts 5 and 8. 5. McElhinney was sentenced on the same day by the same court to an overall sentence of three years and nine months' imprisonment made up as follows: i) a single count of sexual communication with a child, contrary to section 15 A(1) of the Sexual Offences Act 2003 , nine months’ imprisonment (count 2); ii) two counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 , six months’ imprisonment (count 3) and count 4, three years’ imprisonment (count 4). Although the judge did not say so in terms, the sentence on count 4 must have been ordered to run consecutively to the sentence on count 2, with the sentence on count 3 running concurrently. The facts 6. On 17 November 2018 police were called to McElhinney's workplace following a visit by V's older sister, she having discovered messages between V and McElhinney on V's telephone. The police seized McElhinney's telephone. McElhinney commented to officers at the time that they would find some messages but they were just banter and that "it looks worse than it is". 7. Investigations revealed messages between the appellants between February and November 2018 demonstrating their sexual interest in cadets and suggestive of previous sexual activity involving alcohol with them. V told police that Bowie had bought her alcohol and that this had led to McElhinney kissing her. She also said that when Bowie found out that McElhinney had kissed her, he took her into another classroom and himself hugged and kissed her twice. 8. On around 9 November 2018, McElhinney had contacted V reprimanding her for having spoken to another cadet and telling her to be careful because if people found out what had been going on McElhinney could be thrown out of the cadets or arrested. 9. On Remembrance Day 2018, V and the other cadets were given alcohol. They then returned to the Bexhill detachment. V said that whilst there, McElhinney kissed her and held her. V at this stage was under the influence of alcohol. It happened once or twice more. She described being touched by McElhinney on the waist and on her face at the time of the kissing. McElhinney, she said, would often message V and say to her that she had been drinking and the sexuality of her messages would increase. McElhinney would invite V to come to cadets early to help her set up. On one occasion V did so and McElhinney kissed her again, also touching her breasts and her bottom. 10. V told police that Bowie had taken her into a classroom at that cadets and kissed her twice whilst holding onto her waist, lower back and bottom area. She pulled away from him and said that she had not wanted it to happen again. Bowie had told her he was jealous of her relationship with McElhinney. V said that Bowie had touched her on at least six occasions, all in October and November 2018, and mostly on the range at army cadets. The touching had involved Bowie touching V's bottom and groping and squeezing her breasts. 11. Police seized Bowie's telephone and discovered a number of indecent images, along with the messages we have already referred to between him and V of a sexual nature. There were four images at Category A, nine at Category B and six at Category C. 12. V has suffered significant trauma as a result of these events. Amongst other things she commenced self-harming and attempted to take her life on several occasions. She has also felt guilty. Grounds of appeal 13. For Bowie, Mr Jenkins raises a single ground of appeal, namely that the sentence imposed on count 5 should not have been ordered to be served consecutively to the multi-incident count 8. His simple point is that a sentence term of 39 months, whilst justified on the multi-incident count 8 itself, fully took account of all aggravating features, including the messaging the subject of count 5. When that is understood, combined with the mitigation available to Bowie, the overall sentence imposed, because of the consecutive nature of the sentence on count 5, was simply manifestly excessive. 14. In similar vein, Miss Dardashti for McElhinney argues that the sentence on count 4 should have been imposed concurrently with the sentence imposed on count 2. Again, the four-year term taken by the judge on the multi-incident count 4 was sufficient to take account of the overall criminality of McElhinney. A consecutive sentence of nine months’ imprisonment n count 2 was not necessary to reflect the overall gravity of the criminality involved. Discussion and analysis 15. The principle of totality comprises two elements. First, all courts when sentencing for more than a single offence should pass a total sentence which reflects all of the offending behaviour before it and which is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Thus concurrent sentences will ordinarily be longer than a single sentence for a single offence. Secondly, it is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour together with the factors personal to the offender as a whole. 16. There is no hard and fast rule governing whether sentences should be structured as concurrent or consecutive in their components. The Sentencing Council Guideline on Totality confirms that the overriding principle is that the overall sentence be just and proportionate. The Guideline goes on to state by way of general approach that concurrent sentences will ordinarily be appropriate where, amongst other things, there is a series of offences of the same or a similar kind, especially when committed against the same person. It also states that consecutive sentences will ordinarily be appropriate where offences are of the same or similar kind, but where the overall criminality will not sufficiently be reflected by concurrent sentences. 17. In both of these cases the messaging and the sexual activity could be said to be part of a series of offences of a similar kind committed against the same person, given their sexual nature. However, we are unsympathetic to these appeals. True it is that the offending in counts 5 and 8 for Bowie and counts 2 and 4 for McElhinney involved the same victim, but that is not determinative. It is clearly open to a judge when sentencing for sexual crimes involving a single victim to impose consecutive sentences, provided that the overall sentence is not manifestly excessive: see for example R v AD [2013] EWCA Crim 1017 . The messaging here was part of the grooming behaviour and planning, but it was a separate kind of activity and there is no indication in the judge's careful sentencing remarks of any impermissible double-counting in the custodial terms arrived at by her on count 8 for Bowie and count 4 for McElhinney. Those terms were fully justified without taking into account any of the messaging communications. 18. Even proceeding in the appellants' favour on the basis that the sentences should have been concurrent, the judge was clearly considering in the case of each appellant what was a just and proportionate overall sentence. In our judgment the final sentences reached in relation to each appellant were precisely that. The judge was entitled to take the view that the appellants' overall criminality would not sufficiently be reflected by concurrent sentences. Putting it another way, she may well have increased her sentences on count 8 for Bowie and count 4 for McElhinney had she taken the decision to pass concurrent sentences on the communication offences. She stated in terms when dealing with McElhinney that the total sentence being passed was the least sentence that she could impose to justify the gravity of the criminality. 19. The judge took the appellants' relevant mitigation into account, including McElhinney's fragile mental state. However this was very grave, repeat offending, involving what the judge rightly described as a "massive breach of trust", perpetrated over a period of months, involving significant age disparity, planning, joint activity with both appellants acting in concert, the use of alcohol, with significant long-term damage being caused to V. Further, McElhinney tried to prevent V from disclosing what had happened. The appellants had deleted incriminating telephone messages (although the police were still able to recover them) and the background context which the judge was entitled to take into account was a highly troubling general sexual interest in female cadets. There must always be an element of deterrence in sentencing those who choose ostensibly to look after children and then use their positions to perpetrate sexual abuse. 20. Put simply, whilst the overall resulting sentences could be said to be severe, they were not manifestly excessive. For these reasons both appeals will be dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2022_01_25-5262.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/79/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/79

d14a8f5a21869d1237baa235576bf9e9c66ab878085b5c3d6dac05048b7f8d91

[2018] EWCA Crim 1384

EWCA_Crim_1384

crown_court

Neutral Citation Number: [2018] EWCA Crim 1384 Case No. 2017/01346/C1 IN THE COURT MARTIAL APPEAL COURT CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 12 th June 2018 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVIISON ( Lady Justice Hallett DBE ) MR JUSTICE GOSS and MRS JUSTICE MOULDER DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - NEIL CHRISTOPHER GUNN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by

Neutral Citation Number: [2018] EWCA Crim 1384 Case No. 2017/01346/C1 IN THE COURT MARTIAL APPEAL COURT CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 12 th June 2018 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVIISON ( Lady Justice Hallett DBE ) MR JUSTICE GOSS and MRS JUSTICE MOULDER DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - NEIL CHRISTOPHER GUNN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as Epiq 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Non-Counsel Application Mr D Edwards appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) LADY JUSTICE HALLETT: 1. This is a renewal of Mr Gunn’s application for leave to appeal against his conviction for battery by a Court Martial Board. The first ground advanced relates to the constitution of the Board. Mr Gunn serves in the RAF yet he was tried by an Army Board. We are troubled by the interplay between the Queen's Regulations for the RAF as to the constitution of the Board and the provisions of the Armed Forces Act. The Regulations suggest that the Board that tried Mr Gunn should have been differently constituted, including at least one representative from his service. We appreciate that the Regulations do not have the force of primary legislation but it is not clear to us from what we have heard this morning what force they do have. We should say that we have seen the transcript of the hearing at which the trial date was fixed and note that the defence agreed to an Army Board. However, Mr Gunn's then lawyer does not seem to have addressed the issue of the effect of the Queen's Regulations during the hearing and we could not establish satisfactorily this morning what he advised Mr Gunn as to the ir effect. 2. As far as the other grounds are concerned, we are not as yet persuaded that they arguable but it may be that a fresh representative could put them in better order and so we shall not adjudicate upon them. One matter that caused us concern was Mr Gunn's reference this morning to being told by the Judge Advocate and by his lawyer that no reference could be made to the Bastion incident (about which he wishes to call fresh evidence) and which he suggests could have established a motive for the complainant to lie. Accordingly, the other grounds may be advanced if, and only if, Mr Gunn’s fresh representative considers they are properly arguable. 3. We will give leave on the ground relating to the constitution of the Board. We will give Mr Gunn a representation order for a fresh advocate.

2018_06_12-4324.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1384/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1384

75ee7d34c38c529e623c536db07ac8e2b6d080c5fd56aba27ecfb6b2700d44c1

[2023] EWCA Crim 315

EWCA_Crim_315

crown_court

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202201617/B1 [2023] EWCA CRIM 315 Royal Courts of Justice Strand London WC2A 2LL Wednesday 1 March 2023 Before: LADY JUSTICE SIMLER DBE MR JUSTICE GOOSE HER HONOUR JUDGE DHIR KC (Sitting as a Judge of the CACD) REX V GARY CHRISTOPHER PIGGOTT __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T LADY JUSTICE SIMLER: Introduction 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 likely to lead members of the public to identify that person as a victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 7 April 2022, following a trial in the Crown Court at Worcester before HHJ Cartwright and a jury, the applicant, Gary Piggott, was convicted of two counts of assault of a child under 13 by penetration (those were counts 1 and 2), three counts of sexual assault of a child under 13 and one count of causing a child under 13 to engage in sexual activity. The applicant was sentenced to concurrent sentences on each count with concurrent special custodial sentences of nine and a half years on counts 1 and 2, comprising terms of eight and a half years and an extension period of one year. 3. He was represented at trial by solicitors, Thomas Horton LLP, and counsel, Mr Naill Skinner, and now renews his applications for an extension of time of 19 days in which to seek leave to appeal against conviction and for leave following refusal by the single judge. He relies, in relation to the extension of time, on difficulties in adding his solicitor's telephone number to his contact list while at HMP Hewell; on the fact that his solicitors were, in his view, "very unhelpful" in providing him with assistance; and on the fact that he was moved in the course of that period to another prison. An application for leave to appeal against sentence was also refused by the single judge but that application has not been renewed. The Facts 4. The case concerned alleged sexual offending against a 12-year-old boy (to whom we shall refer as "C1") by the applicant at C1's home address on the nights of 29 and 30 May 2020. In short, having been invited to stay at a friend's house on the evening of 29 May 2020, the applicant entered C1's bedroom on numerous occasions and committed a series of sexual assaults on him. 5. The victim gave an ABE video recorded interview on 31 May 2020. In that interview he said that on the evening of 29 May 2020 he was in his bedroom which he shared with his younger brother. During the course of the evening the applicant entered the bedroom on a number of occasions. He said that the applicant had touched his bottom and inserted his finger into his anus on two separate occasions. The applicant touched his penis over his clothing and on one occasion got onto the bed, again touching his penis before pulling his trousers down and touching his penis skin to skin. He also said that the applicant put his penis into the applicant's mouth and that he had sucked it on two separate occasions and also that he kissed him on the lips. At one point he said that the applicant told him: "Don't tell anyone. Promise me". 6. On 31 May 2020 penile swabs were taken from C1 and examined for traces of DNA. At trial, an admission was made in relation to the DNA evidence in the following terms: "The summary of the forensic scientist’s findings is as follows: No saliva/DNA attributable to Gary Piggott was detected within the result obtained from the cellular fraction of [C1’s] penile swabs. This may be because Gary Piggott did not touch or suck [C1’s] penis. However, it is also possible that he did, but without the transfer of detectable levels of Gary Piggott’s DNA onto [C1’s] penis, or that any that may have been deposited has subsequently been removed from [C1’s] penis by actions such as washing or wiping. Therefore, overall in my view the scientific findings do not assist in addressing whether or not Gary Piggott touched/sucked [C1’s] penis, as alleged." 7. In his Defence case statement the applicant denied all counts on the indictment. He said that on the relevant date he attended a party and thereafter went to C1's mother address at her invitation. He stayed there for a while socialising and drinking. He was not drunk. She invited him to stay the night, which he did, sleeping on the sofa in the lounge and then leaving the following morning at around 5.30 am because he was unable to sleep comfortably. He said that during the night, at approximately 3.00 am, C1 came into the lounge. He was wearing pants and did not say anything. The applicant ushered him back to his bedroom, put a blanket over him and left him in his bedroom. The applicant denied that he had touched C1 inappropriately in any way. At trial the applicant gave evidence in his own defence and maintained those denials. 8. The judge gave a full good character direction to the jury in relation to the applicant. The jury were also told that the fact that the applicant had given evidence in his defence was a positive feature of the case and that they should take it into account when considering their verdicts. The Application for leave to appeal against conviction 9. The applicant's grounds of appeal against conviction are as follows: (i) grounds 1, 2 and 4 concern the information provided to the jury regarding the DNA evidence, which is said to have been misleading because the time and date of the swabs being taken was incorrect and an incorrect date was given in the summing-up. Further, the fact that there was no positive DNA evidence in the case, despite the copious samples taken, was an answer to the case. Had the crime been committed there would have been evidence of it. The fact that C1’s DNA was not found on the applicant’s own person was vital evidence but was not presented to the jury. Compounding this point, in interviews C1 stated that he ejaculated so there should have been DNA evidence matching his account. (ii) Ground 3 contends that the jury should have heard character evidence that the applicant baby-sat for other people and that he was a loving uncle with five nieces. In other words, his representation was inadequate because of the absence of character witness statements. (iii) Ground 5 is in summary a challenge to the fact that C1's mother did not report the allegations to the police. (iv) Ground 6 is that the victim incorrectly identified the applicant as his mother's boyfriend's brother. The applicant contends that his admissions that he took C1 back up to bed and co-operated with the police are both indicative of his innocence. The applicant also comments that C1 thought the attack might have been a dream. (v) Ground 7 is that there were inconsistencies between the original complaint made by C1's friend’s mother and C1's two interviews. In the original complaint he said that the applicant had an erection, but that was not mentioned by C1 in his ABE interview. (vi) Ground 8 is that during the trial C1 was represented as being autistic but this was never proved and that therefore misled the jury. (vii) Ground 9 is that C1 did not like his mother's boyfriend, and this may explain the allegation against the applicant. (viii) Ground 10 is that the police led C1 in his interview, inappropriately influencing his answers to questions. 10. In view of the criticisms made of trial counsel and solicitors the applicant was invited to and waived privilege. Detailed responses were provided by both. In his response, dated 8 July 2022, counsel refuted criticisms made of him by the applicant. We do not record all points made by him, but significantly, he dealt with the allegations relating to the DNA evidence. He explained that the DNA evidence was presented to the jury by way of pre-agreed facts and the summary of the forensic scientist's findings to which we have already referred. Counsel says that he submitted to the jury that the findings in fact supported the applicant's assertions that no sexual activity had taken place. However, he had also explained to the applicant in conference prior to the trial, and during the trial, that the absence of any DNA results did not mean that C1 was lying. Rather, it was just another feature of the case. Moreover, so far as the dating error is concerned, it was an error in the applicant's favour. He also explains that the jury were told that the applicant was a working man of good character and popular within his community. They were not told about baby-sitting because counsel was not aware of this and nor were his solicitors. In any event, counsel questioned whether this would have made any difference. The case was about what C1 said that the applicant had done to him on one occasion and there was no suggestion that the applicant had behaved inappropriately on any other occasion towards any other children. 11. So far as character witnesses are concerned, during the pre-trial conference on 1 April 2022, counsel says that the applicant told him there were no defence witnesses and that he did not think it necessary to call any character witnesses. He was well aware that the judge would give a full good character direction and that is indeed what happened. Consequently, no defence witnesses were required to attend trial and no statements were taken from anyone. The applicant agreed that the case was essentially one person's word against another. 12. So far as inconsistencies in C1's accounts are concerned, they were highlighted to the jury. All interviews were edited where appropriate and agreed with the applicant. Counsel has expressed his surprise at concerns raised by the applicant about the representation he received at trial because, during the course of the trial, the applicant and all others involved had agreed that the trial could not have gone any better. 13. The response from solicitors is dated 12 July 2022 and is to similar effect regarding the conduct of the trial and refuting criticisms made about the representation received. Solicitors also set out a chronology of their contact with the applicant and his family, making clear that there was no lack of communication with either the applicant or his family. 14. We have also been provided with and read the Respondent's Notice in this case, together with the applicant's comments on that document received on 12 September 2022. 15. Having read and considered all the material available in this case, we have concluded that there is no arguable merit in any of the proposed grounds of appeal and there is no arguable basis for concluding that any of the convictions are unsafe. We cannot improve on the reasons given by the single judge, who said the following: "1. Grounds 1, 2 and 4 (DNA evidence): You suggest that the information regarding DNA samples was not given to the jury correctly. It was: your barrister agreed 'admissions' with the prosecution which accurately reflected the DNA evidence, save for one error about the date on which the swabs were taken (on the Saturday evening rather than sometime on the Sunday) which the judge identified. However, the judge explained that this did not prejudice you: in fact, this operated to your advantage, because the absence of any DNA on the samples would have been more significant if the samples had been taken closer to the alleged crime. Crucially, the admissions explain that the DNA evidence was neutral or inconclusive. Your barrister advised you, correctly, that the absence of DNA evidence did not mean that the complainant was lying it was just one aspect of the evidence. However your barrister argued to the jury that they supported your case that no sexual activity had taken place. The judge carefully directed the jury that they should not speculate about this evidence as they were not experts. 2. Ground 3 (character evidence): You had plenty of opportunity to provide your legal team with the names of potential defence witnesses and your barrister says in terms that you said that there were none, accepting that it was the complainant's word against yours. He was not aware of any evidence of you babysitting. In any event, evidence that you had, for example, babysat for other children would be unlikely to have significantly influenced the jury, given the clear evidence that you had sexually abused this particular child. The judge also ensured that the jury was given a full direction about your good character. The jury was told that you were a SJ working man and popular with members of your community. 3. Grounds 5, 6, 7, 8, 9 and 10 (the complainant). You note that the complainant had said he had been alone a lot leading up to the date of the allegation and had said he had been unable to tell if he felt hungry, thirsty and sad. You also refer to the fact that he does not get on with his mother's boyfriend and matters of that nature. However these have little or no relevance to the nature of the complaints he made against you. The fact that he has autism was not relevant to the key issues for the jury to decide. He was asked few if any leading questions. He said the room was lit from the television. The complainant may have been incorrect when he said that you were his mother's boyfriend's brother, but again this is not significant. No other adults were said to be in the house other than you and the complainant's mother when the offences occurred. He was asked by the police whether he thought what he had described was a dream and he said "no". He also made this clear in his answers in cross-examination. Generally, the inconsistencies in the complainant's account were highlighted to the jury. It is correct that the initial complaint did not come from the complainant's mother but this was not a case of any delay in the reporting." 16. Ultimately, this was a case involving a stark conflict in the evidence. One person was not telling the truth. The jury heard all the evidence and concluded that person was the applicant. Their verdicts were unarguably safe. The applicant was professionally represented by an experienced defence team. The team has responded comprehensively to the criticisms made of them and we are satisfied that the conduct of this trial was not arguably inadequate. Indeed, it is of note that after seven and a half hours' deliberation the jury returned majority verdicts in this case indicating that two members of that jury were not satisfied by the Crown's case. 17. In the result, the application is refused for all these reasons. Since no purpose would therefore be served in extending time, it is unnecessary to consider that 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: rcj@epiqglobal.co.uk

2023_03_01-5595.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/315/data.xml

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88aeb7d0451ee94f4ac0c93e8b4dd06f530da559593863a209156ea20e4f112e

[2007] EWCA Crim 3485

EWCA_Crim_3485

crown_court

No: 200704453 C5 Neutral Citation Number: [2007] EWCA Crim 3485 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 10th October 2007 B e f o r e: LADY JUSTICE HALLETT MR JUSTICE GRIGSON HER HONOUR JUDGE GODDARD QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v NOEL WEAVER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWa

No: 200704453 C5 Neutral Citation Number: [2007] EWCA Crim 3485 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 10th October 2007 B e f o r e: LADY JUSTICE HALLETT MR JUSTICE GRIGSON HER HONOUR JUDGE GODDARD QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v NOEL WEAVER - - - - - - - - - - - - - - - - - - - - - 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 Sharman appeared on behalf of the Applicant Mr O Garrett appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE HALLETT: On 11 December 2006, the respondent used an electric stun gun during an assault in a public house. The gun is said to have resembled a torch but electrodes were exposed. This enabled it to be used as a stun gun by discharging electricity into the body on contact. It is accepted that the stun gun is a prohibited weapon for the purposes of section 5(1)(b) of the Firearms Act 1968 . However, a prosecution expert in his report upon it has described it as a "non-lethal self-defence weapon". It is not a barrelled weapon. 2. The respondent appeared before HHJ Webb at the Wolverhampton Crown Court charged on an indictment containing two counts: possession of a disguised firearm, contrary to section 5 (1A)(a) of the Firearms Act 1968 and a second count of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 . Another count was added alleging possession of a prohibited weapon, contrary to section 5(1)(b) of the Firearms Act 1968 . 3. The respondent pleaded guilty to the counts alleging possession of a prohibited weapon (the new count 2) with a maximum penalty of ten years, and assault occasioning actual bodily harm (the new count 3), which has a maximum penalty of five years. This, however, did not satisfy the prosecution. They sought a trial on count 1: possession of a disguised firearm. The reason is straightforward: possession of a prohibited weapon, contrary to section 5(1)(b) of the Firearms Act, has been expressly excluded from the minimum sentence provisions of section 51(a) of the Firearms Act 1968 . Possession of a disguised firearm contrary to section 5 (1A)(a), however, is expressly included within the minimum sentence regime. Unless, on conviction, the judge found exceptional circumstances, the respondent would be liable for an offence of possessing a disguised firearm to a minimum sentence of five years' imprisonment. 4. However, the question of whether or not a minimum sentence of five years is appropriate on the facts of this case is not the issue before us. The question for us is whether an electric stun gun is capable of being a firearm for the purposes of section 5 (1A)(a) of the Firearms Act. 5. On 21 August 2007, the judge ruled it is not a firearm for those purposes. If that ruling is confirmed, the prosecution would be forced to offer no evidence on count 1 on the indictment. The trial has been adjourned pending this hearing and the respondent's co-accused released on bail. The respondent himself is in custody. 6. Mr Garrett, who appeared before us for the Crown but not below, in his well-crafted and thorough submissions took us through the Firearms Act 1968 , as it was originally drafted. He helpfully divided the weapons covered by the Act into three categories: those exempt from any certification requirement; firearms requiring certification (see section 1 and now section 2); lastly, firearms which are designated as prohibited weapons. 7. Prohibited weapons may only constitute a small proportion of the firearms, as defined by the Act, but Mr Garrett insisted it is clear, from any reading of the Act, that all prohibited weapons are defined as firearms for its purposes. 8. Section 5 , he reminded us, which sets out weapons subject to general prohibition, provided for just two categories. Subsection 1(a) referred to fully automatic firearms. These, Mr Garrett observed, would be lethal barrelled weapons from which any shot, bullet or missile can be discharged. The second category, dealt with in subsection (1)(b), includes "any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing...". This subsection has remained unchanged by subsequent amendment to the Act despite a whole series of them. 9. In Flack v Baldry [1988] 1 WLR 397 the House of Lords found that an electrical stun gun is a prohibited weapon for the purposes of subsection (1)(b). Electrical stun guns may be neither barrelled nor lethal but are prohibited weapons. 10. Mr Garratt also drew to our attention to subsection (1)(c). That, however, is linked to subsection (1)(b) and does not provide a separate category. It covers ammunition linked to prohibited weapons in subsection (b). 11. We turn to the section which creates the offence of possession of a disguised weapon namely section 5 (1A) (a) of the Act. Where relevant it reads:: "A person commits an offence if, without the authority of the [Secretary of State], he has in his possession, or purchases or acquires, or manufactures, sells or transfers- (a) any firearm which is so designed [as another object]." 12. For the definition of a firearm in the Firearms Act 1968 , we must resort to section 57(1), upon which most of the argument before us has focused. It provides: "In this Act, the expression 'firearm' means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes - (a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and (b) any component part of such a lethal or prohibited weapon ..." 13. Mr Garrett submits that the words "and includes any prohibited weapon, whether it is such a lethal weapon as aforesaid or not" make it clear that a prohibited weapon within the meaning of section 5(1)(b) of the Firearms Act is a firearm for all purposes within the Act, whether barrelled or whether lethal or not. He informed the court that despite the considerable amendments, to which we have made reference, the definition section within section 57(1) has remained the same. He argues that the words of the statute are clear, both in section 57 and in the amended section 5 . Had Parliament intended a definition other than that contained in section 57 to apply to the amended section 5 , in his submission it would have been simple to qualify the type and nature of the firearm, to which the subsection was to apply, so as to exclude prohibited weapons. 14. Without wishing to embarrass Mr Sharman, who has appeared on behalf of the respondent both here and below, at one stage of the proceedings it seemed to us he virtually conceded the force of the applicant's submissions. However, he did his duty to his lay client and he attempted to support the judge's ruling. 15. Before the judge he relied upon a number of factors. First of all, he suggested that the use of the word "any" which precedes the words “prohibited weapon” in section 57(1)(a) provided the court with a discretion to say whether or not a particular prohibited weapon was also a firearm. The judge did not accept this argument. Mr Sharman wisely did not pursue it with any great enthusiasm before us. In our view, it is simply a non-runner. 16. Mr Sharman's second point found rather greater favour with the judge. He argued that on the prosecution's interpretation of section 57(1) the words, "means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged" would be otiose, because all prohibited weapons would be firearms. 17. The judge's ruling focussed on the presence of the words "lethal" and “barrelled” in the introductory words of the section and the presence of the word “lethal” in subsection (a) but the absence of the word "barrelled". He interpreted "any prohibited weapon, whether it is such a lethal weapon as aforesaid or not" as referring to any non-lethal but barrelled weapon, which is also a prohibited weapon. He accepted Mr Sharman's argument that the essential features of a firearm were that it was barrelled and that it was capable of discharging shot, bullet or other missile. He was impressed by the argument that to find any other interpretation might mean that a simple object, such as a water pistol, could become a firearm for the purposes of the Act, yet an air pistol, which is potentially more dangerous to life and limb than a water pistol, would not be covered. The judge was concerned, for example, that somebody found in possession of a CS gas cannister would not find themselves facing the minimum sentence provisions. 18. We should say that given the potential consequences of a conviction under section 5 (1A)(a) of the Firearms Act 1968 , on the facts of this case, we are sympathetic to the approach adopted by the judge. However, we are driven to the conclusion that he was wrong to rule in the way that he did, for the reasons given so ably by Mr Garrett. The existence of the minimum sentencing provisions given the ordinary rules of statutory interpretation, in our judgment, do not justify giving a qualified or restricted meaning to the word "firearm" in section 5 (1A)(a). Had that been what Parliament intended, they would have said so. Parliament provided in section 57 of the Act a definition of a firearm. It is a definition for all purposes within the Act. It may be at odds with the everyday use of the word "firearm", but that is Parliament's privilege. We note, for example, that within section 57(1)(b) "any component part of such a lethal or prohibited weapon" also becomes a “firearm”. A component part does not necessarily have a barrel. A component part is not necessarily capable of firing a missile. Yet, for the purposes of the Act, it is defined as a firearm. 19. We also note the use of the words "such a lethal or prohibited weapon" in subsection (57)(1)(b). It is absolutely plain to our mind that a distinction has been drawn between "such a lethal" and "prohibited weapon". Therefore, the words "such a lethal" must refer back to the words in the first three lines of section 57(1) and accordingly any component part of "such a lethal" means “any component part of a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged”. 20. Similarly, following the same reasoning in subsection (a), the words "any prohibited weapon whether it is such a lethal weapon as aforesaid or not" must be taken to mean "any prohibited weapon, whether it is such a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged, as aforesaid or not." The use of the words "such" and "as aforesaid" in our view quite plainly indicate that the phrase relates back to the words "lethal barrelled weapon of any description from which any shot bullet or other missile can be discharged can be discharged". The words “lethal weapon” are shorthand for what appears in the first three lines of the section. 21. That means that we would adopt the interpretation put upon section 57(1) by Mr Garrett. It also means we accept his argument that the word "any" in this context is synonymous with “all”. We do not agree with the submission that on this analysis the definition section is otiose. As Mr Garrett argued, the effect is that all prohibited weapons are firearms, but not all firearms are prohibited weapons. Prohibited weapons form but a small proportion of the firearms covered by the Act. It is necessary, therefore, to have a definition of firearms which covers the vast majority. Thus, we are forced to conclude, despite Mr Sharman’s best efforts, that the Crown Prosecution Service must have their leave to appeal and the appeal must be allowed. 22. In our view the judge's ruling should have been that a stun gun disguised as a torch is capable of being a firearm within the meaning of the Act. We accordingly reverse the ruling of the learned judge. The proceedings will have to be resumed in the Crown Court because, on any view, there is the trial of the co-accused and there is the matter of the sentencing of the respondent. However, Mr Garrett has kindly obtained instructions from the Crown Prosecution Service to the effect that if we made any comment about the wisdom of pursuing the respondent in relation to count 1, the Crown Prosecution Service would abide by what we say. For our part, given the pleas of guilty that the respondent has entered to counts 2 and 3, and given the powers available to the sentencing judge, it would not be right, in these particular circumstances, for the trial on count 1 to proceed. Accordingly we are pleased to learn that the Crown Prosecution Service will be allowing the matter to lie upon the file. 23. For those reasons, leave to appeal is given and the appeal is allowed. 24. LADY JUSTICE HALLETT: I do not think we need reporting restrictions do we, Mr Garrett and Mr Sharman, certainly in relation to this respondent? It does not affect the co-accused, does it? 25. MR GARRETT: I do not see how it could affect the co-accused. It is a straightforward factual issue in her case. 26. LADY JUSTICE HALLETT: Very well, we do not need reporting restrictions. I should have said that I hope we did justice to the arguments in the time available.

2007_10_10-1235.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3485/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3485

2aa9b0b47736871fe91a13fcddc698e3a7dab5b336a579b451ee67fccc3e051f

[2021] EWCA Crim 445

EWCA_Crim_445

crown_court

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation No. [2021] EWCA Crim 445 CASE NO 202002679/A1 Royal Courts of Justice Strand London WC2A 2LL Wednesday 17 March 2021 Before: LORD JUSTICE MALES MR JUSTICE JEREMY BAKER RECORDER OF DERBY (HER HONOUR JUDGE SHANT QC) (Sitting as a Judge of the CACD) REGINA V ROBERT NORMAN LAWRENCE HOWARTH __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MR T ACWORTH appeared on behalf of the Appellant. _________ A P P R O V E D J U D G M E N T MR JUSTICE JEREMY BAKER: 1. On 24 September 2020 in the Crown Court at Salisbury, Robert Howarth pleaded guilty to three offences of making indecent images of children, contrary to section 1(1)(a) of the Protection of Children Act 1978, as a result of which he was fined the sum of £1,000 and made the subject of a community order for 2 years with a rehabilitation activity requirement for 40 days. In addition he was ordered to pay £500 towards the costs of his prosecution and a surcharge in the sum of £90. An order was made for the forfeiture and destruction of a number of his electronic items and he was made the subject of a sexual harm prevention order pursuant to section 103A of the Sexual Offences Act 2003 without duration of time. 2. Robert Howarth appeals against sentence with the permission of the single judge, limited to one aspect of his sentence, namely the unlimited duration of the sexual harm prevention order. Offences 3. On 17 July 2019, Wiltshire police visited the appellant's home, where he was arrested and a number of his computer devices were seized. In subsequent interviews the appellant admitted using a website known as 'Chatstep' and stated that he may have used such items such as "perv", "extreme" and "pop" although the appellant did not accept that those items demonstrated that he had a sexual interest in children. The appellant stated that he had never knowingly accessed indecent images of children, although when he had been looking at adult pornography such images would "pop up" on the screen. 4. The devices taken by the police were subsequently analysed and it was ascertained that the appellant had used "TOR" to access the dark web. As well as indecent images of children there was evidence of discussions regarding the sexual abuse of children and the appellant indicating "teen schoolies" as a preference when asking what pornography he wanted to access. In total the police investigation found that the appellant had accessed child pornography over a period of about 4 years between 2015 and 2019 and uncovered 49 category A indecent images of children, 49 category B indecent images of children and 183 category C indecent images of children. The appellant was further interviewed by the police on 9 January 2020 and made "no comment" to questions asked by the police. The appellant 5. The appellant had no previous convictions and a pre-sentence report revealed that he had been accessing sexual pornography over the Internet for a number of years. The appellant claimed that his real interest was confined to adult sexual material and that the images relating to children popped up accidentally on his screen when he used the dark web. He denied that he had any sexual interest in children and had in any event commenced a course of therapy in relation to his use of online pornography. 6. The appellant is a married man with one adult daughter and two young grandchildren. He had retired after a lifetime's career in scientific research and has since suffered from some physical ill-health. The author of the report considered the appellant to pose a medium risk of similar offending which would be assisted by a rehabilitation activity requirement and a sexual harm prevention order directed to his use of the Internet. Sentencing remarks 7. In his sentencing remarks the Recorder stated that the appellant was 65 years of age and was of previous good character. The appellant had pleaded guilty to the offences for which he stood to be sentenced and disclosed that he would not be passing an immediate custodial sentence in relation to them. A repeat of the appellant's behaviour however would almost certainly result in a custodial sentence. 8. The Recorder had considered the Sexual Offences Guidelines, the Imposition of Community and Custodial Sentences Guidelines, the Totality Guidelines, the Covid-19 Guidelines, and the Guilty Plea Guidelines. He stated that his starting point for the most serious offence would have been 1 year's imprisonment. There was a serious aggravating factor of the age of some of the children in the schedule of the images that the Recorder had seen and the fact that the offending had occurred over a sustained period of time, although the offending appeared to be spasmodic. 9. Bearing in mind the appellant's good character, his age, his guilty pleas and the submissions that had been made on his behalf along with the constructive proposal in the pre-sentence report, the Recorder took the view that immediate custody was avoidable in this case, notwithstanding the appellant's minimisation of his offending during the course of his interview with the probation officer. The sentence was therefore a 2-year community order on each count concurrent. There would be up to 40 days' rehabilitation activity requirement which the appellant would have to attend. The punitive element of the offending would be a fine of £1,000 and the appellant would be ordered to pay £500 towards the costs of the prosecution. 10. In so far as the sexual harm prevention order was concerned the Recorder made that for an indefinite period of time in the following terms: "1. Using any device capable of accessing the internet unless: a. he notifies the police or his offender manager that he possesses the item within three days of its acquisition; b. it has the capacity to retain and display the history of internet use and is at all times set to do so; c. he makes the device available on request for inspection by a police officer or offender manager; but this prohibition shall not apply to a computer at a Job Centre Plus, public library, educational establishment or other such place or a computer at his place of work or which is provided to him by his employer for the remote working, provided that, in relation to a computer at his place [of] work or which is provided to him for remote working, he notifies the police or his offender manager within three days of commencing use of such a computer and provides them with all his usernames and passwords. 2. Deleting his history of internet use (beyond the item's manufacturer's default settings). 3. Possessing any device capable of storing digital images unless he makes it available on request for inspection by a police officer. 4. Disposing of any device capable of accessing the internet or storing digital images without the prior approval of the police or his offender manager." Grounds of appeal and response 11. On behalf of the appellant, Mr Acworth makes no complaint about any aspect of the orders imposed upon the appellant, save for the unlimited duration of the sexual harm prevention order which he submits is unjustified in this case, given the nature and extent of the appellant's offending, coupled with his lack of previous convictions. He submits that the appropriate duration of order, in the present case, should be one of 5 years. 12. On behalf of the respondent, Mr Onslow, in his respondent's notice agrees, that the unlimited duration of the sexual harm prevention order was unjustified, but submits that , the appropriate duration of the order in this case should be one of 7 years. Discussion 13. At the date of the sentencing exercise in this case the statutory test as to whether and to what extent a sexual harm prevention order should be imposed was that set out in section 103A(2)(b) of the Sexual Offences Act 2003 (now mirrored in section 346 of the Sentencing Act 2020), namely: "…the court is satisfied that it is necessary to make a sexual harm prevention order for the purpose of (i) protecting the public or any particular public members of from sexual harm from the defendant or (ii) protecting children or vulnerable adults generally or any particular children or vulnerable adults from sexual harm from the defendant outside the United Kingdom." 14. As was made clear by this Court in R v Smith [2011] EWCA Crim 1772 , in relation to the predecessor legislation concerning the analogous sexual offences prevention orders, the statutory test of necessity required the court to focus on the twin issues of necessity and proportionality when deciding whether and, if so, in what terms such an order should be made in a particular case. 15. More recently, this guidance has been reiterated in relation to sexual harm prevention orders by this Court in R v McLellan [2017] EWCA Crim 1464 , where Gross LJ at [25] made observations as to the correlation between the duration of sexual harm prevention orders and the notification requirements under section 80 of the Sexual Offences Act 2003: "i) First, there is no requirement of principle that the duration of a SHPO should not exceed the duration of the applicable notification requirements. As explained in Smith, at [17], it all depends on the circumstances. ii) Secondly (so far as here relevant), a SHPO may be made when the Court is satisfied that it is necessary for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant: s.103A (1) and (2)(b)(i) of the 2003 Act. As with any sentence, a SHPO should not be made for longer than is necessary. iii) A SHPO should not be made for an indefinite period (rather than a fixed period) unless the Court is satisfied of the need to do so. An indefinite SHPO should not be made without careful consideration or as a default option. Ordinarily, as a matter of good practice, a Court should explain, however briefly, the justification for making an indefinite SHPO, though there are cases where that justification will be obvious. iv) All concerned should be alert to the fact – as this case highlights – that the effect of a SHPO of longer duration than the statutory notification requirements has the effect of extending the operation of those notification requirements; an indefinite SHPO will result in indefinite notification requirements: s.103G(1) of the 2003 Act. Notification requirements have real, practical, consequences for those subject to them; inadvertent extension is to be avoided." 16. It is regrettable, as Mr Acworth concedes, that this case has had to come before this Court, rather than being dealt with appropriately in the Crown Court. Firstly, although it would appear that there was good notice and discussion concerning the extent to which it was necessary and proportionate to make a sexual harm prevention order in this case, there appears to have been no such focus on its duration. Secondly, to the extent that the Recorder considered this issue, he did not provide any reasons which sought to justify the making of an indefinite order in this case. Thirdly, once it was appreciated that such an order had been made, this does not appear to have been the subject of submissions to the Recorder, either at the hearing or subsequently at a slip rule hearing pursuant to section 155(1) of the Powers of Criminal Courts (Sentencing) Act 2000. 17. In these circumstances, we have had to consider this issue for ourselves. Firstly, we should say that despite the appellant's lack of previous convictions, we are satisfied that given the nature and extent of the offending in this case, coupled with the contents of the pre-sentence report, such an order relating to the appellant's use of the Internet was necessary. Secondly, that the terms of the order were both necessary and proportionate. 18. However, in relation to the issue of the duration of the order, we do not consider that the imposition of an indefinite order is either necessary or proportionate. In this regard, had it not been for the imposition of the indefinite nature of the sexual harm prevention order, the duration of the notification period under section 82(1) of the Sexual Offences Act 2003 would have been one of 5 years, which, by reason of section 103C(2)(a) would also have been the minimum duration of his sexual harm prevention order. 19. In the present case, we have considered whether this is anything which necessitates the duration of a sexual harm prevention order in this case being required to be of a longer period than the minimum duration provided for under section 103C(2)(a). In this regard, we note that the appellant's use of the Internet to view child pornography extended over a significant period of time, namely 4 years, and involved the use of TOR to access the dark web. Moreover, although it is to his credit that he had commenced a course of therapy, he continued to minimise his association with child pornography to the author of the pre-sentence report. 20. In these circumstances, we consider that it is both necessary and proportionate for the duration of the sexual harm prevention order in this case to be one of 7 years which will also be the duration of the period which he will be subject to the notification requirements by virtue of section 103G(2)(a) of the Sexual Offences Act 2003 (now mirrored by section 352(2)(a) of the Sentencing Act 2020). 21. There is one further matter which has been brought to our attention by the Registrar, namely the amount of the surcharge in this case. The surcharge of £90 was based on the imposition of the community order whereas if the surcharge had been based on the financial penalty of £1,000 it would have been a surcharge in the sum of £100. 22. This Court has determined in R v Abbott [2020] EWCA Crim 516 , that where more than one type of disposal is imposed at the Crown Court, the amount of the surcharge payable is the higher of the amounts due on the making of each such disposal. 23. In these circumstances, we have also considered the effect of section 11(3) of the Criminal Appeal Act 1968 which precludes this Court increasing any aspect of the sentencing exercise unless, taking the case as a whole, the appellant would not be dealt with more severely than he was in the court below. We are satisfied that having very substantially reduced the duration of the sexual harm prevention order, increasing the surcharge by the sum of £10 to £100, would not fall foul of that prohibition. 24. Therefore this appeal is allowed to the extent that the sexual harm prevention order will be reduced in its duration to one of 7 years but that the surcharge will be increased to £100. To that extent this appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2021_03_17-5136.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/445/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/445

8b778fcd54637d07ea7641e4a965b5af107b4ff1ce95bec10beb0cba5e6fbd8c

[2007] EWCA Crim 1165

EWCA_Crim_1165

supreme_court

Neutral Citation Number: [2007] EWCA Crim 1165 Case No: 200503336 C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT NOTTINGHAM Judge Pert Q.C. Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/05/2007 Before: LORD JUSTICE SCOTT BAKER MR JUSTICE ROYCE and HER HONOUR JUDGE GODDARD Q.C. - - - - - - - - - - - - - - - - - - - - - Between: John Dawes Ryan Smith Arthur Dawes Rebecca Bridge Appellants - and - The Queen Respondent - - - - - -

Neutral Citation Number: [2007] EWCA Crim 1165 Case No: 200503336 C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT NOTTINGHAM Judge Pert Q.C. Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/05/2007 Before: LORD JUSTICE SCOTT BAKER MR JUSTICE ROYCE and HER HONOUR JUDGE GODDARD Q.C. - - - - - - - - - - - - - - - - - - - - - Between: John Dawes Ryan Smith Arthur Dawes Rebecca Bridge Appellants - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Roderick Johnson Q.C. and Dominic D’Souza for John Dawes Martin Hurst for Ryan Smith Gregory Bull Q.C. for Arthur Dawes Mark Harries for Rebecca Bridge Paul Mann Q.C. for the Respondent Hearing dates: 2/3 April 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Scott Baker : 1. The four appellants were convicted on 11 May 2005 of various drug related offences following a ten week trial before Judge Pert Q.C. and a jury in the Crown Court at Nottingham. John Dawes is 37 and is the son of Arthur Dawes aged 60. Rebecca Bridge aged 24 is Arthur Dawes partner. The remaining appellant, who is unrelated to the others, is Ryan Smith. 2. John Dawes and Ryan Smith, were each convicted of two conspiracies, one to supply class A drugs (diamorphine) and one to supply class B drugs (amphetamine). They were also convicted of a third conspiracy, namely to launder money. Arthur Dawes and Rebecca Bridge were likewise convicted of that third conspiracy. The sentences were as follows. John Dawes 24 years for the class A conspiracy with concurrent sentences of 12 and 10 years for the class B conspiracy and the money laundering conspiracy. Ryan Smith was sentenced to 14 years for the class A conspiracy with concurrent sentences of 8 and 5 years for the other conspiracies. Arthur Dawes received 8 years and Rebecca Bridge 4 years for the money laundering conspiracy. 3. Each of the appellants appeals against conviction by leave of the single judge. John Dawes, Ryan Smith and Arthur Dawes also appeal against sentence by leave of the single judge. Bridge’s appeal against sentence was heard and dismissed by the Full Court on the 31 July 2006. 4. The prosecutions arose out of a major police operation that began in 2001 and ended with the arrest of the appellants in September 2003. The indictment covered the period September 1997 to September 2003. In summary, John Dawes was said to be a key and dominant figure in an organisation involved in trade in heroin and amphetamine. Ryan Smith was said to be his trusted lieutenant. Arthur Dawes and Rebecca Bridge assisted in laundering the proceeds by allowing their home to be used to store money and take part in deliveries. Bridge was said to have acted as bookkeeper for the operation. Ledgers in her handwriting seized from their home showed receipts and outgoings. 5. The Crown’s case against the appellants can be summarised under a number of headings. Participants in the operation 6. Unusually, there were no less than four witnesses who had been participants in the operation who gave evidence for the Crown. These were Richard Carrington, Marc Simpson, Lee Blackmore and Kristian Barsby. Carrington 7. Carrington worked for the Dawes family from 2000 until late 2001 or early 2002. He was a courier for John Dawes brother Robert, who was not a defendant at the trial but whom the Crown claimed had gone abroad and was heavily involved in the operation. Carrington was also involved with John Dawes and saw him operating an electric money counting machine at his house at Copperfields putting money into bundles of £1,000. In 2000 or 2001 he had gone to the Colwick unit that was used for making ecstasy tablets and ‘cutting’ cocaine and amphetamine. He went there mainly to pick up drugs or help move them. Drugs were put in John Dawes Shogun under a spare wheel in the rear of the vehicle. John Dawes claimed to have sold the Shogun in 1999. Carrington never saw Arthur Dawes dealing with drugs but saw him move them around. In cross-examination he agreed he had only seen Arthur Dawes once and that he had not mentioned it in his witness statements. 8. Carrington further said he had taken drugs to Rugby and Manchester and money to Holland and Spain for Robert and John Dawes, flying from Heathrow, East Midlands and Gatwick. The money was in shoes or the false lining of suit cases. Carrington had previous convictions and his credibility was vigorously attacked. He denied transposing people who had worked for Robert Dawes and saying they worked for John Dawes. Simpson 9. Marc Simpson likewise had a criminal record. When he was released from prison in January 2002 he met John Dawes and moved into Arthur Dawes’ house. In March 2002 he and a friend of his called Shane Smith agreed to sell heroin for John Dawes and that anything above £750 per ounce would be profit. A meeting took place at which John Dawes, Gary Hardy, Garth Blower and Shane Smith were present. John Dawes said Simpson could sell in Sutton and Blower in Kirkby-in-Ashfield. Simpson obtained names from Dawes. He always took the money to John Dawes, usually at his house but once at a public house. On two occasions he picked up 10 kilos of amphetamine and John Dawes told him where to drop them. On one occasion John Dawes hit him in the face with a cosh and on other occasions he assaulted him by hitting him with bats or punching him. When he was released from prison in 2003 he heard Dawes had been arrested and decided to make a witness statement. He retracted his statement but later retracted his retraction. Blackmore 10. Lee Blackmore was released from prison in June 2000 and began selling heroin for himself. Then he worked for a short period for Paul Day before John Dawes told him he would have to work for him. Simpson came over a week later and told him Dawes had sent him. John Dawes never sold him drugs directly. Simpson brought him 7 ounces a week which he divided into half gram bags. He paid Simpson. He collected heroin with Simpson from Matlock on eight or ten occasions. After a while Barsby replaced Simpson and supplied Blackmore. A lot of the time Barsby was with Ryan Smith. He passed money to Barsby either in the car or house in the presence of Ryan Smith. John Dawes came to Blackmore’s house looking for Simpson and told Blackmore to “pull his finger out.” 11. Blackmore said Barsby became stressed after a load of heroin went missing. Ryan Smith came to collect the money that he, Blackmore owed. He was stressed by debt and could not stop, although he wanted to. He stopped after Barsby went missing. The police approached him and said Barsby had come in and admitted everything. Asked if the police wanted him to give evidence against John Dawes, he said he had been given an opportunity to come clean and change his life. Barsby 12. Kristian Barsby’s evidence implicated John Dawes and Ryan Smith in Counts 1 and 2. He said that John Dawes was at the top of the chain. Ryan Smith was his assistant and gave instructions to Barsby. Smith was involved in runs to collect heroin and amphetamine. Barsby himself collected the money and gave it to Smith for him to give to John Dawes. Smith and Barsby split the profits on each ounce. Barsby’s first witness statement had not implicated Smith and we shall return to this in due course. 13. Barsby was 24 years old at the time of the trial. He had “knocked about” with Ryan Smith and had been friendly with him for three years. He lived in the same road as John Dawes and got to know him through Ryan Smith. Eventually he visited Dawes on a daily basis either alone or with Smith. He said that he began to work for Dawes. Smith had owed Dawes money and was paying it back in instalments. Dawes provided him with a car for several hundred pounds which he had paid back. He described Dawes as having wedges of money wrapped in rubber bands in £1,000 blocks. The main amounts were in £20 notes. Eventually Barsby owed £1,300 for a car and a scooter. He had to pay interest and agreed that £50 per week was about right. He also said that Dawes bought mobile phones for him and Ryan Smith to use. This was denied by Dawes. He said that he ended up working for John Dawes through Ryan Smith to settle his debt. The work involved him carrying heroin and amphetamine from one place to another. Smith had not been present when Dawes told him that the work involved drugs. 14. His first job had been to pick up a kilo of heroin from a Tesco car park near Newark Way in Nottingham and deliver it. He delivered it to a public house. John Dawes would use the word “one” to describe a kilo. He said he could not remember any code words used during mobile phone conversations although his statement referred to a number of code terms. He also said that drugs were buried and that this idea came from Dawes. Neither, Dawes nor Ryan Smith used drugs. Initially Ryan Smith had accompanied Barsby but eventually Smith just acted as his director. 15. Barsby took heroin to Lee Blackmore to divide it into ounces. He thought he supplied two or three people daily and collected heroin from the Tesco car park perhaps once a month. His share of the profit was £75 per ounce. Ryan Smith also received £75. He said he also collected amphetamine from the same place in Nottingham, the smallest quantity being 2 to 4 kilos and the largest 20 kilos. He delivered it to the same public house and also to Matlock. He gave money to John Dawes rather than Ryan Smith on more than one occasion. In Copperfields the money was kept in a jar or drawer and John Dawes made notes on a piece of paper using a gate system of four horizontal lines and a vertical line to denote five. Barsby said he had £3,000 to £4,000 in his possession at one time from drugs. 16. He said Dawes asked him to take money to Amsterdam. He was given the money by Ryan Smith en route to East Midlands Airport on 15 July 2002. Janet Yemm was also there. He thought there was about £20,000. He put the money in the sleeves of his coat and trainers. Smith paid for all the flights. The Customs and Excise stopped him and had taken about £2,000 from him but did not search him and he went back with the bulk of the money. He had lied when questioned by Customs and Excise. 17. Barsby also said that he went to Kirkby to make a delivery and dealt with Garth Blower. He delivered heroin and testers. He delivered amphetamine to Paul Hardy, a relative of Gary Hardy. His take was a few cars and the paying off of a loan. Barsby said that he told people he was going to stop. He said word had got back to John Dawes because stashes of heroin began to go missing. Dawes told Barsby that he had to pay everything back, at least £10,000. Barsby said he was afraid of being beaten or worse. Barsby denied that he had gone to Ryan Smith’s girlfriend Emily when the second stash went missing. He agreed Smith had provided him with a car the day before he went to the police but said that this was to pick up drugs and nothing more. Asked about a mobile phone he said it contained names of the persons he dealt to. The phone also contained a number for “J” and the text: “Am I getting some cash today?” That was on the same phone on which John Dawes called DC Phillips in October 2002. The October 2002 phone call is the subject of a specific ground of appeal to which we shall return shortly. 18. Barsby knew Robert Dawes was involved in drug dealing and said that he was in charge and lived in Spain. He denied the suggestion that he had described a true situation but had substituted the name of John Dawes for someone else. He could not explain why his statements made no mention of Ryan Smith being Dawes right hand man. He agreed that he had made £30,000 over six months for supplying heroin and that this was aggravated by the supply of amphetamine, and that he could expect a lengthy custodial sentence. He could not account for references to Ryan Smith and himself replacing Shane Smith in the chain of supply appearing only in his later statements. 19. Barsby’s father gave evidence that he saw Ryan Smith with two rolls of money that must have contained over £2,000. Financial evidence 20. It was the Crown’s case against John Dawes that he and his wife Helen, who faced a separate trial, could not have enjoyed the lifestyle they did on the available income. Prior to 1 September 1997 they had lived at 10 Pepper Street in Sutton-in-Ashfield. Helen Dawes had claimed housing benefit from that address since 1991. Between October 1989 and June 1995 John Dawes claimed housing and council tax benefit at that address. From July 1995 to July 1999 he claimed income support from 51 Jepson Road, Sutton in Ashfield. Revenue and National Insurance records showed him working for three months in 1999 and earning just under £2,000. In September 1997 he won the same amount in the National Lottery. From June 1995 to October 1999 Helen Dawes claimed income support. She had worked as a barmaid since April 2002. 21. Between November 1998 and October 1999 they purchased 10 Pepper Street under the right to buy scheme for £15,000. In his evidence John Dawes said that he had managed to raise £18,000, £12,000 of which came from the sale of a caravan in September 1999. £10,000 came from Neil Dallison. 22. On 12 July 2000 they purchased Copperfields in Tudor Street, Sutton in Ashfield for about £38,000 from John Roebuck, an uncle by marriage. They also carried out a lot of work on the property. In addition John Dawes rented an apartment in Spain for 11 months in 2001. 23. Searches by the police of Pepper Street in 2001 and Copperfields in 2003 revealed a stack of envelopes but there was little in the way of business records. John Dawes said in interview that he did not keep records. The only records before the jury covered a period of about 5 weeks in 2003. 24. At the time of their arrest they had four credit cards, seven store card accounts and five bank accounts. Between 1997 and 2003 they deposited £171,590 into these accounts. Over the same period they withdrew £167,000 and made purchases on the credit cards totalling £94,000. 25. James Davies had been selling a caravan site that he owned in Ingoldmells in late 2002 for £130,000. John Dawes had been interested in purchasing it and wanted Davies to consider taking a bungalow in Ingoldmells in part exchange. The only bungalow in Ingoldmells referred to in the evidence was 5, Central Avenue, the address of Rebecca Bridge. 26. When he was arrested in May 2003 John Dawes was found to be in possession of £14,000 in cash that he had received from Gary Hardy. He declined to explain to the police why the money had been transferred to him. In an interview in September he told the police that it was a loan and that its purpose was to purchase a caravan but declined to state where the money had come from. The interviewing officer told him that he believed the money came from the proceeds of sale of class A drugs and asked him to account for it but he declined to do so. 27. A number of vehicles were also found at the Copperfields address. In evidence the appellant said that most, if not all, belong to other people. 28. Arthur Dawes had been living at 59 Taylor Crescent, Sutton in Ashfield. He received income support at that address between November 1998 and January 1999. Between 16 September 1997 and the date of his arrest he was in receipt of incapacity benefit. Records showed only one period of employment in 2000 for which he earned about £1,000. 29. Rebecca Bridge had not worked during the period specified in the indictment and was in receipt of income support for long periods. Colwick 30. On 1 June 2001 the police raided the Colwick unit (to which, as we have mentioned, Carrington referred in his evidence) and recovered £1½ million worth of heroin paracetamol, cannabis and amphetamine. They arrested Jonathan Guest and Martin Smith. Smith’s phone numbers appeared in Guest’s phone book as did a number for J.D. – 856574. John Dawes was present in court at the trial of Martin Smith in October 2002. Butler and Guest were said by Barsby to be employees of John Dawes. Butler was arrested on 10 June near Jepson Road and found to be in possession of one kilo of heroin. Butler also had a map that he had obtained from Guest in prison which showed the location of underground stashes of heroin in Sutton Woods. He was also in possession of a document that appeared to be list of code words. On a separate piece of paper he had a list of telephone numbers including Sara Dawes, Helen Dawes, “Eddie” (Arthur Dawes was known as Eddie) and “Jade” with the number 455143, the last number called before the police seized the phone. East Midlands Airport – 15 July 2002 31. We have referred already to Barsby’s evidence that John Dawes asked him to take money to Amsterdam. Customs officers stopped Barsby, Smith and Janet Yemm at East Midlands Airport on 15 July 2002. Smith had £3,000 on him, which he said he might need to buy a car. Barsby first said he was travelling alone to Amsterdam and was unsure for how long. Then he said he was travelling with Smith. He had £1,000 but no bags. He denied travelling with Yemm. He knew her, but it was a coincidence they were on the same flight. Yemm said she was going to Amsterdam to buy property. She said she had £800 on her but when searched there was £18,000 in her bag which she said was savings. £14,000 of the money had been made into bundles at the National Westminster Bank, Sutton-in-Ashfield on 15, 16 and 17 January 2002. John Dawes had drawn £20,000 from his joint bank account on 18 January 2002. Barsby, Smith and Yemm had consecutively numbered flight tickets. No proceedings were taken at the time against Barsby, Smith or Yemm but the money was confiscated. Observation evidence 2002 32. On 16 August 2002 DC Wallis saw Ryan Smith driving a vehicle in which Barsby was passenger. On 19 August 2002 DC Wallis saw Smith driving a red Sierra registered to Paul Bower. The following day he was seen driving the same Sierra with John Dawes in the front seat and Barsby in the rear. On 1 September 2002 DC Wallis spoke to Barsby in the garden at Copperfields. The Sierra was parked outside. Ryan Smith arrived on a yellow Suzuki. John Dawes arrived on a brown Suzuki and sped off, being away a few minutes before returning. On 10 September 2002 DC Wallis saw John Dawes, Ryan Smith and Barsby outside Copperfields. On 16 September 2002 Barsby was seen driving a Renault. A few minutes later the vehicle was parked outside Copperfields. The Gary Hardy £14,000 33. On 23 May 2003 the police saw Gary Hardy driving a black Porsche. The Crown’s case was that it paused at a junction, long enough to give the impression that it was waiting there, before pulling round the corner. The police then saw John Dawes at the passenger door. He got into the vehicle. Police saw body movement in the vehicle as if something was being handed over and decided to search them. John Dawes was on the pavement with a carrier bag and the Porsche drove off. Dawes then got into a vehicle that was driven by Paul Bower. The carrier bag contained £14,000. The officers asked what had been exchanged and Dawes replied that he had just got £14,000 from Gary. This is the £14,000 that we have referred to in paragraph 26. Newport Pagnell 34. A diary entry for 7 June 2003 contained the entry “100,000 smoke”. At 5.30 p.m. On that day Arthur Dawes drove his VW Passat to the M1 services at Newport Pagnell. There was a woman in the vehicle. The Crown alleged that this was Rebecca Bridge, but she was not identified at an identification parade held 18 months later. Just under £100,000 was transferred to a London Taxi Cab which was followed and stopped on the M1. The Passat arrived back at Skegness at 7.48 pm. Arthur Dawes and Rebecca Bridge were in the vehicle. In the boot was shopping in Morrison’s supermarket bags. The telephone conversation between John Dawes and DC Phillips 35. D.C. Phillips was appointed as a liaison officer for John Dawes after the murder of a man called David Draycott, because some people believed that he might have had some involvement. John Dawes had DC Phillips’ mobile telephone number. DC Phillip’s evidence was that John Dawes phoned him at 7.30 pm on 23 June 2003 because he could not locate his son Paul Dawes who had been taken into police custody and then been placed in care. There had been an earlier incident on 12 June when Paul Dawes had ended up practically naked in Mansfield. During the conversation John Dawes asked DC Phillips when he was due to retire and offered him work saying they were always on the look out for lads like him, cops coming up to retirement. DC Phillips was also told that with the information that he could provide he would “shoot up the promotion ladder in their organisation.” DC Phillips said that he made a note of the conversation on his home computer within minutes and did not accept that he might have misunderstood it. John Dawes was not shown the note at interview because the only copy was on his home computer and DC Phillips was on holiday. Items found at 5 Central Avenue 36. At 5 Central Avenue, the address of Rebecca Bridge, the police found two bank note counting machines. A Dutch mobile phone was also found in a bedside cabinet. In the utility room was a holdall with two maps one of Barcelona and one of Santander with hotels marked in rings. In a sideboard cupboard in the living room was a 2003 diary. There were entries “in” and “out” for the period from February to 12 June and references to names, places and flights. Also in the cupboard were a number of handwritten lists containing apparent references to names and places. Some pages appeared to contain material relating to named individuals including “Eddie”. 37. Also in the lounge were a large number of receipts for mobile phone cards, 10 phone chargers and a number of other items. Amongst the items in Rebecca Bridge’s handbag was a book containing a number of phone numbers in a mixture of Rebecca Bridge’s and Arthur Dawes’ handwriting. 38. Inside the sideboard was a tray under which was a piece of wood containing a false bottom. Inside was a phonebook; the first entry was written in Arthur Dawes’ handwriting. The other entries were written by Rebecca Bridge, according to Arthur Dawes on his instructions the numbers having come from Tony Handley. The names correlated with those in the diary and other documents relating to the “ins” and “outs.” One number ending in 192 appeared next to J. A vodaphone top up card ending in 150 had frequent contact with the 192 number in April 2003. In his evidence Arthur Dawes said that he possibly used the 150 number but subsequently said that he did not recognise the number. At one stage it was suggested to John Dawes on behalf of Arthur Dawes that calls made between the 192 and the 150 phones on 2 April were between John Dawes and Arthur Dawes whereas John Dawes’ evidence was that the phone was in the possession of Paul Bower on that date. From a shed in the garden was retrieved an envelope containing further documents with names, again said by Arthur Dawes to have come from Handley. The Crown’s case was that the J who appeared against the 192 number in the records was John Dawes and that he was also J referred to in the “ins” and “outs” entries in the other documentation. It was suggested that the 192 phone could be linked to him by correlating usage of the phone, the site location, the times calls were made and calls between it and the 150 number on 2 April, a day on which Paul Dawes arrived in the United Kingdom at Luton Airport. 39. There was no dispute that John Dawes had taxed a Range Rover at the vehicle licensing centre on the morning of 4 April 2003. At 10.07 he was observed using a mobile phone in the same vehicle. The Crown’s case was that the cell site analysis of the calls revealed the movements of the 192 phone which, when correlated with police observations of John Dawes showed that he was the person using the 192 phone. John Dawes did not dispute possession of the 192 phone between 7 and 20 April. Various calls between the 192 and 681 phones prior to 19 April were dealt with by way of admissions. On 19 April there were repeated calls between the two phones and John Dawes accepted he was using the 192 phone to call Ryan Smith on the 681 phone. He also said Ryan Smith sold that phone to Shane Smith but he did not know the date on which it changed hands. 40. On 29 April 2003 Steven Hutchinson crashed a car containing 2 kilos of heroin. Also in the car was the 681 phone. In its memory against the 192 phone was the name ‘Don’. On 28 and 29 April there had been 28 calls between 192 and 681 up until the moment of Hutchinson’s arrest and seizure of the phone. Much has been made on this appeal to linking of ‘Don’ to the 192 phone, the argument being that this indicates ‘J’ in the ledger entries is not to be read as referring to John Dawes. We shall return to this when we come to deal with the appeal of John Dawes. Bank notes 41. The Crown alleged that bank notes seized from East Midlands Airport, Newport Pagnell and Central Avenue, Skegness were contaminated with a degree of heroin not seen in notes in general circulation. The defence claimed there was inadequate evidence to establish this and the point seems to have been regarded as of little relevance by the judge. Flights 42. The Crown produced a schedule showing a number of flights from January 2000 by some of the appellants and other named individuals. The Crown’s case was that the schedule was important both for showing the costs incurred and the purpose behind the flights. Interviews 43. Ryan Smith declined to answer any questions. John Dawes denied any dealings with drugs or other drug dealers or laundering the proceeds of drugs. He also denied sending large amounts of cash abroad. He denied giving over £22,000 to Ryan Smith to take to Amsterdam via East Midlands Airport. He declined to talk about his relationship with Ryan Smith and a number of others. He gave his occupation as builder and said he did double glazing, patios and conservatories earning an average about a £1,000 to £1,500 per week. He declined to say where he worked but indicated that he could produce those for whom he worked as witnesses. He declined to provide a list of customers. He said he was paid by cash or cheque. The latter were paid into bank accounts. He wrote what people owed him on the back of a calendar. He named four businesses that he ran. He said that the £14,000 that was in his possession in May 2003 (the Gary Hardy £14,000) belonged to him. He declined to acknowledge that Gary Hardy was the person who had given it to him, or the purpose apart from implying that it was to do with his business Apex Construction. He said it had been intended to pay a multi-national company but declined to state the purpose. Subsequently he said it was to pay for a caravan. The interviewing officer told John Dawes that he believed the £14,000 was the proceeds of dealing in class A drugs and invited him to account for it but he declined to do so. He said he had little to do with Arthur Dawes and that Arthur Dawes was not involved in any of his ventures. He travelled abroad because he liked to have as many holidays as possible. He denied knowing where his brother Robert Dawes lived and did not know if he lived in Spain. Initially he denied knowing anyone called Marc Simpson. He also initially declined to answer questions about the £20,000 seized at East Midlands Airport but later said it had nothing to do with him. He denied giving Smith, Barsby or Yemm money to take out of the country. He declined to answer questions about money owed to him by Barsby and denied that Barsby had worked for him in any capacity. Later he said that Barsby was a liar and owed him £2,000 and a Vauxhall Nova. He denied sending him to Liverpool to collect a vehicle. 44. Arthur Dawes declined to answer most of the questions but did say that the £10,000 hidden at 5 Central Avenue belonged to him and was being kept for a rainy day. He had received some insurance money following the death of his wife in the early 1990’s and had a few endowment policies. His only income was weekly benefit of £85. Since he had a bank account containing £6,000 he was asked to explain the need to keep £10,000 in cash on the premises. He said it was more convenient. It represented savings from when he was in work. However, he had finished work in 1997 and none of the notes had been printed and were in circulation at that time. He also said that the handwriting in the ledgers and the diary found at his home had nothing to do with him. He had a home at 59 Taylor Crescent, in Sutton paid for by the council. His partner, Rebecca Bridge rented the address at 5 Central Avenue. He declined to answer any questions about the observations at Newport Pagnell, and various other matters, including the role of Tony Handley who later became central to his defence. 45. Rebecca Bridge said that Arthur Dawes had bought the money counters that the police found. She denied storing property at her home for anyone else or that the money counters had been used since they had been at her home. Arthur Dawes had told her to hide the £10,000. She declined to comment on whether any of the handwriting in the ledgers was hers. She did not know any of the persons named in the book. The records of telephone numbers belonged to Arthur Dawes although she accepted that they contained her handwriting also. She declined to answer questions about Newport Pagnell although she confirmed that Arthur Dawes had once driven a silver VW Passat. She said that she had nothing to do with either John Dawes or Robert Dawes. Defence evidence 46. At the trial neither Ryan Smith nor Rebecca Bridge gave evidence. John Dawes did give evidence. His previous convictions, which were not drug related, went in because he had attacked the character of prosecution witnesses. 47. His evidence was that he did not get on well with his brother and did not know what he did for a living in Spain. He did agree to do some work for him. He believed he had been “tarred with what his brother had done.” His brother had threatened to shoot both the appellant himself and his wife. He also said he did not get on with his father and had had nothing to do with Rebecca Bridge. He accepted that he knew a lot of people who were drug dealers. He denied being aware of Richard Carrington and had never seen him before. Carrington could never have visited Copperfields because it was not habitable until Christmas 2001. 48. He said that Marc Simpson was a friend of Shane Smith. He had given him some old clothes and agreed to let him stay at Arthur Dawes house. They had fallen out and Simpson kept out of his way. He denied ever going to the house of either Blackmore or his girlfriend. His only contact with Blackmore had been as a babysitter for him and he had not seen him for a long time. He agreed that he had gone to Derby with Ryan Smith and Barsby to collect a vehicle. He further agreed that Barsby visited his home with Ryan Smith but could not remember him visiting alone. He said that the money seized at East Midlands’ Airport on 15 July 2002 had gone from his account to Sarah Dawes. He agreed that he had told the police in interview he owed the money to Rob. He did not tell the police he gave it to Sarah because they did not ask. He said that the money received from Gary Hardy on 23 May 2003 was a loan in order to help secure more work with Apex Windows using the argument that the earnings could be used to pay the loan back. 49. He did not recall the conversation with DC Phillips in which he offered him employment. It might have been the offer of a job in a building firm although he did not know if DC Phillips had any particular skill in the building trade. 50. In respect of the 192 number he said that he had bought the phone from Bower but said that Bower had had the phone on 2 April and had collected Paul Dawes from Luton. He did not accept the suggestion made on behalf of Arthur Dawes that calls between the 192 and 150 numbers on 2 April had been between himself and Arthur Dawes. He had sold the 192 phone to Hutchinson before 29 April. 51. He accepted that he had made many flights abroad but explained them as cigarette trips, setting up his apartment or holidays. 52. Arthur Dawes gave evidence that he too had previous convictions that were not drug related. He bought and sold cars and caravans and had smuggled cigarettes. He did not think that Robert Dawes was involved in drugs. He believed his reason for leaving England in June 2001 was that he had had trouble with some people in Middlesbrough. He had visited him several times in Spain where he was obviously a successful businessman. He had two bars and a business supplying bars and restaurants. He sought to distance himself from the money counting machines that were found at his address. He agreed that he had been at Newport Pagnell but said that the woman accompanying him was someone whom Tony Handley had asked him to meet in a lay by at Northampton and to drive to Newport Pagnell. He was to receive £500. He returned to Skegness where he picked up Rebecca Bridge who had been doing some shopping. He agreed that he had changed his defence well into the trial. He had intended to deny being at Newport Pagnell and having anything to do with the ledgers or the phones that had anything to do with criminal activity and that he had not bothered to look at the ledgers. The appeal of John Dawes 53. The main thrust of John Dawes’ appeal against conviction was that his case at trial was that he was not responsible for any drug distribution or dealing. The four accomplices who had given evidence had substituted his name for others. He had been targeted in error. The police had shut their eyes to the truth. He was not the “J” referred to in the ledgers, albeit Arthur Dawes referred to him as “J” and this was how he was known in the family. At the trial he was unable to suggest another candidate for “J” in the ledgers but this would have not been the case had the Crown fulfilled its disclosure obligations. He was hamstrung to explain “J” in the ledgers and make a case that the 192 phone was not in his possession on 29 April 2003. 54. The fundamental difficulty for John Dawes seems to us to be this. Mr Roderick Johnson Q.C., who appeared for John Dawes before us but did not appear at the trial, submitted that “J” in the ledger was the vital evidence against his client apart from the evidence of the four accomplices. But the defence statement never took the point that he was not “J”. Disclosure cannot be viewed as simply a one way process. The defence cannot justifiably complain about inadequate disclosure if at the same time they are not open in making clear what matters are really in issue. We have seen no evidence whatever of any deliberate misleading on the part of the prosecution in relation to disclosure and consequently if, and in so far as, there has been any failure of disclosure, it is of no assistance to the contention that the accomplices were manipulated into implicating John Dawes, as to which there is in any event no evidence. 55. The one area of prosecution disclosure that we think may have been deficient relates to primary disclosure. It is one thing not to name others involved in the conspiracy on the indictment, but another not to disclose their existence. We think this may apply to events of 29 April 2003. The fact, however, that others may have been involved or interlinked in the drug dealing, does not of itself begin to exculpate John Dawes unless the diary entries related to a “J” that was not him. In our view such a contention was fanciful and never a realistic defence argument. Nothing we have heard or seen on this appeal suggests that such a contention would ever have been realistically viable. 56. As we have mentioned, when on 29 April 2003 Steven Hutchinson crashed the car containing 2 kilos of heroin and the 681 phone, the phone contained within its memory against the 192 phone the name “Don.” On 28 and 29 April there had been 28 calls between 192 and 681 up to the moment of Hutchinson’s arrest and seizure of the phone. The position as we understand it is this. The information now available enables the defence to argue that the Hutchinson transaction was orchestrated from the seller end by Sean Judge and Judge’s associate J Quinn (“Don”). “J” could be J Quinn cooperating with Sean Judge and this, so it is said, could have been the key to unravelling the whole case. However, on John Dawes’ evidence, he admits possession of the 192 phone earlier in the month. 57. Whilst it is true that on the basis of all the material we now have there is a somewhat complex factual jungle as regards telephones and individuals the events of 29 April were but a single incident in a case involving many events over a long period of time. Any evidence relating to “J”, however viewed, has no direct bearing on the evidence of the four accomplices each of whom implicated John Dawes in the conspiracies. The Crown accepts that they are open to some criticism about disclosure but the plain fact is that overall the evidence against John Dawes was overwhelming, whoever supplied the drugs to Hutchinson. Even supposing the jury could not be sure the 192 phone was being used by John Dawes rather than Quinn on 29 April, Quinn was using it as Don (because that was the reference to it on the 681 phone). The significant point is that this aspect of the case has no direct relevance to the evidence of the accomplices which is in no way undermined. 58. Finally, any criticism of the Crown’s disclosure has to be considered against the fact that the Crown in reality knew nothing of John Dawes case until his evidence in chief. 59. Although Mr Johnson did not expand in oral argument on any of the other grounds of appeal he did not abandon any of them. He helpfully submitted that they were adequately covered in the original counsel’s grounds of appeal. The first point was that the judge should not have admitted the evidence of the disputed conversation between John Dawes and DC Phillips on the ground that there was a breach of Code C of the Police and Criminal Evidence Act 1984 in that the contents of the conversation should have been put John Dawes at the first reasonable opportunity. Further, he should have been cautioned and given an opportunity in a taped interview to give his account of what had been said. We reject both of these contentions. The evidence in our view was of sufficiently probative value to warrant its admission and there was no unfairness to Dawes in admitting it. 60. Next it is said that the judge summed up the case on the evidence of finances in a way that was inconsistent with how the case was put by the Crown. True, the Crown was unable to point to sums in the possession of John Dawes that were consistent with conspiracies on the scale alleged. But his lifestyle was completely inconsistent with such income as was identifiable as coming from non-drug related sources. Further, the Crown’s case was that most of the money was being laundered and moved around the country and smuggled abroad to the likes of Robert Dawes and others. His apparent indebtedness to the bank and credit card companies did not prevent him from acquiring expensive motor bikes, personalised number plates, maintaining a villa in Spain and living there on and off for significant periods of time as well as making other trips abroad when he claimed to be working as hard as he could at home to keep his head above water as a builder. We do not think there was anything inconsistent with the Crown’s case in the way in which the judge summed up. 61. Finally, as to the overall fairness of the summing up, whilst other judges might have summed up the case differently, we have been provided with a transcript of leading counsel, Mr Whitehouse Q.C.’s closing speech which was of disproportionate length lasting from late on the morning of 4 May until mid-morning on 6 May. It was necessary for the judge to put many of counsel’s submissions in their proper context and so that the jury could focus on the real issues in the case. There was in truth a very strong case against John Dawes and we are not persuaded that his conviction is unsafe. When dealing with the appeal of Ryan Smith we explore in some detail the judge’s failure to give a warning about the accomplice evidence. The evidence against John Dawes was of 4 accomplices not one and overall the case against him was much stronger than against Smith. Consequently any failure to give an accomplice warning does not threaten the safety of John Dawes’ conviction. The appeal of Ryan Smith 62. Ryan Smith’s main ground of appeal is that the judge failed to direct the jury appropriately as to their approach to the evidence of Barsby. Mr Hurst, who has appeared for Smith, submits that without the evidence of Barsby there was insufficient evidence to leave to the jury on the two drug conspiracy counts. The only other evidence against him related to the cash smuggling through East Midlands Airport (which went to the money laundering conspiracy) and marginal evidence of his involvement given by Blackmore. Ryan Smith did not give evidence. 63. At the beginning of his summing up the judge referred to the defence contention that the four witnesses Carrington, Simpson, Blackmore and Barsby might have interests of their own to serve in giving evidence. He said at p10A: “If the prosecution in this case is right, John Dawes is a senior figure in what we might call an organised crime gang or syndicate and is somebody that people are genuinely afraid of. Ryan Smith is his trusted assistant, Arthur Dawes and Rebecca Bridge are the bookkeepers and either are the bag carriers or organise the bag carriers for vast amounts of cash. Membership of such an organisation, you may think, is limited to people who are trusted. If that were the true position, it would be extraordinarily difficult for the police to prove what is going on. You know that this police operation ran from 2001 until the arrests in September 2003. The police could maintain observations and they did – and you have heard the evidence of observation, I shall remind you of it in due course – but that is nothing like as good as having a first hand account from inside the organisation. It would probably be impossible to infiltrate an undercover police officer into such an organisation, so it would only be natural for the police to welcome somebody from inside who was prepared to talk. The sort of person who is recruited to such an organisation may well have a number of criminal convictions. Such a person, by being involved in the organisation, is almost certain to have committed further serious criminal offences. If he tells the police what has been going on, he will expose his own wrong doing. What causes such a person to speak to the police may vary: it may be fear, as Barsby claims, it may be conscience, it may be persuasion by police officers. When such a witness does go to the police, he may have a variety of motives, one of which may be to get a lesser sentence for the serious offences that he himself has committed. Of course, there is nothing wrong in police officers seeking to reassure someone who is contemplating breaking ranks and giving evidence for the prosecution. There is nothing wrong, indeed it is their duty, for police officers to offer such people in appropriate situations the opportunity of the witness protection programme with a new life, a new identity in a different area and assistance in setting up that new life. The suggestion has been made in this case that police officers have gone beyond that and have misbehaved in handling those witnesses, either in enticing them to give evidence or in rewarding them whilst they were under police protection. First, you have got to consider the realities of life under a witness protection programme. You have heard about sums of cash. We know that, in large measure, it is for the settlement of hotel bills for either the witnesses or police officers or both. How attractive does a life like that sound to you? Secondly, the purpose of this trial is to try these defendants, not the police officers. We are not here to regulate their conduct or to punish them for any transgressions. You have to look at the evidence given by each of these witnesses. It has been suggested that police officers have manoeuvred these four witnesses into giving the accounts they have given. You have to consider whether there is any evidence that gives support to such a suggestion.” And then at 12G: “You have to look to see whether there is any evidence at all that satisfies you that these witnesses have been manoeuvred into the position they have adopted.” The judge then concluded at 14H: “So what matters so far as these four witnesses are concerned is this. You must look at the evidence of each of them separately. If you were to conclude that any part of the evidence given by the one you are then considering was so tainted, either by police malpractice or by an expectation on the part of the witness of leniency, that the evidence itself is incapable of belief, then you must disregard that evidence.” 64. It was not argued by the Crown that there was a case against Ryan Smith absent the evidence to Barsby. 65. Mr Hurst submits that the jury should have been warned that there was a special need for caution in accepting the evidence of Barsby against Ryan Smith and that it was dangerous to act on his evidence alone. We were referred to R v Makanjuola [1995] 1WLR 1348, 1351D. It is true that the Lord Chief Justice in Makanjuola made it clear that there is no longer any requirement on the judge to give a warning about corroboration. It is in the judge’s discretion to decide whether any direction is necessary on the particular facts of the case. Our attention was also drawn to the observations of Longmore L.J. in R v Hunter and others [2002] EWCA (Crim) 2693 at para 28 where he said: “When, however, an accomplice gives evidence for the Crown, it will in our view, usually be necessary to give a specific warning about the care with which the jury should approach his evidence.” 66. Mr Hurst’s argument is that it was unreasonable in the Wednesbury sense for the judge not to have given a warning in the present case. Nowhere, he submits, was there a hint of warning or caution in the summing up. If anything the passage we have read suggests the judge was explaining to the jury why they could accept the evidence of Barsby; it was the reverse of a warning. 67. The judge came to deal with Barsby’s evidence at p83 onwards. It is necessary to look at the history of Barsby’s witness statements. 68. Barbsy was the first of the four accomplices to go to the police. He did so on 26 November 2002. He spoke to the police for an hour, but unfortunately the notes of his conversation have been lost. He made witness statements on 27/11/2002, 29/11/2002, 1/12/2002, 3/1/2003, 13/3/2003 and 9/11/2003. In his first witness statement he gave a detailed account of his involvement in drug supply and mentioned Smith many times, but said nothing about Smith being involved in a conspiracy to supply drugs. In his second statement he gave further information about the conspiracies to supply drugs but did not implicate Smith. In his third statement he mentioned that he had ridden as a pillion passenger on John Dawes motor cycle driven by Smith when they went to collect some amphetamine. He went on to give a lot of other detail about the activities of others in conspiracies to supply drugs but did not include Smith. In his fourth statement Smith was again mentioned but not implicated in any drug conspiracy. 69. Finally, several months later in March 2003, when he had been under police protection for some 3½ months, he said the following which the judge recited to the jury at 102B: “I have mentioned on page 2 of my initial statement Ryan Smith. Ryan Smith was the person who initially had all of the directives from John Dawes. Whenever Ryan was involved in the movement of controlled drugs, it was with the full knowledge and awareness of what he was doing. The business was being controlled from John Dawes through a youth called Shane Smith. Shane Smith had had enough of being involved in running drugs around for John Dawes and backed out. It was at this point that John Dawes became more and more, friendly with Ryan Smith and myself.” 70. We have seen the further statement of Barsby made on 9 November 2003 in which there is limited reference to Smith, the only matter of any possible significance at all being that Barsby was given a phone and SIM card by John Dawes when Barsby was in a car with Smith in Kirkby-in-Ashfield. Dawes said it had been used for “work” which Barsby took to mean drug dealing. Barsby did not however refer to this in his evidence and was not cross-examined about it. It does not, therefore, advance the Crown’s case against Smith. 71. When Barsby came to give evidence he was not given a prior opportunity to remind himself of what he had said in his witness statements. This, it is said on Smith’s behalf, was surprising bearing in mind the prosecution had been specifically asked that he should be shown them. Be that as it may, he gave a very different and much more detailed account of Smith’s involvement in the drug conspiracies than he had given in any of his witness statements. On the other hand his evidence about John Dawes remained broadly consistent. 72. The evidence he gave against Smith can be summarised as follows: • Smith introduced him to Dawes. • He worked for Dawes through Smith. • He had moved both heroin and amphetamine from point to point. • The first time he had done so he had been alone, then he and Smith had done the runs together on perhaps 5 or 7 occasions and later on he had done them alone. • If alone, he would be directed by Smith or John Dawes, mostly by Dawes telling Smith and Smith telling him. • Having collected a kilo of heroin he and Blackmore would cut it into ounces and he would distribute those ounces to retailers. • He would collect the money from retailers and give it to Smith for John Dawes or to Dawes directly. • He would make £150 per ounce which he would split with Smith, each making £75 profit. • Essentially Smith was involved from first to last and was his conduit for money and instructions to and from John Dawes. They shared the work and the profits. Smith was John Dawes’ right hand man. 73. Barbsy was cross-examined and his original statement was put to him on a virtually line by line basis. He could not account for the differences but accepted he had gone to the police immediately after he stopped dealing when the events were fresh in his mind. He said he went to the police as a matter of conscience and he had gone intending to tell the whole truth. 74. The judge suggested in summing up at 84D that Barsby had given two versions and raised the possibility that the police were so concentrating their inquiries on John Dawes that Smith was left out when he should have been included. Then he said: “Or did the witness statement originally taken by the police accurately set out the position and has Kristian Barsby now distorted the balance by implicating Ryan Smith more than he actually was involved? You have to judge whether the differences – and he agrees that there are differences – are explicable in that or any other acceptable way or do they indicate that he has deliberately lied or is otherwise unreliable.” 75. The basis for the judge’s suggestion was no more than that when cross-examined Barsby agreed that when he went to the police they were interested in John Dawes. Neither he nor the police proffered it as an explanation for the omission of Smith’s alleged criminal activity from Barsby’s witness statements. 76. Smith neither answered questions in interview nor gave evidence at the trial. His defence was that Barsby was lying about his role in the drug conspiracies and the other evidence in the case went at most to involvement in money laundering. Some evidence was read in the form of admissions and witness statements to the effect that he was a dealer in cars, scrap and telephones at the time of his alleged involvement in the offences. The judge gave the jury appropriate directions about Smith’s failure to answer questions in interview and to give evidence and pointed out he had put a positive case about the trip to East Midlands Airport on which the adverse inference might bite. He also mentioned that it was not in issue that he was a dealer in cars, scrap metal and telephones. But he did not remind the jury that his defence, albeit not advanced in evidence, was that Barsby’s evidence was untrue, albeit this must have been obvious to the jury. 77. The prosecution’s response is that albeit the judge did not expressly tell the jury to approach Barsby’s evidence with caution, the warning was there nonetheless, given the detail in which the judge dealt with his cross-examination. Following retirement the jury sent a note asking whether there were any statements or interview summaries by Ryan Smith. The judge told them, correctly that there were not. The prosecution submit it was open to the defence at that point as well as at the conclusion of the summing up to invite the judge to give an explicit warning about Barsby’s evidence. But that was not done and nor was any request made for such a direction in submissions before the summing up. We have a transcript of the discussion on various points to be covered in the summing up but the treatment of Barsby and indeed the other accomplices is not among them. We find this surprising. Be that as it may, the inescapable facts are that Barsby materially changed his evidence in court from his earlier witness statements greatly increasing Smith’s role and reducing his own. He had yet to be sentenced. The judge passed a sentence of 30 months imprisonment reducing by 75% from 10 years the sentence that he would have passed. This was further reduced on appeal. 78. We think the judge should have given a warning. As Lord Taylor of Gosforth L.J. said in Makanjuola at 1351D where a witness has been shown to be unreliable the judge 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. Of course, as Lord Taylor made clear each case depends on its own particular facts. In the present case Barbsy gave no viable explanation for why he did not implicate Smith in his earlier statements but implicated him extensively in his evidence. Bearing in mind that there was, absent Barbsy, no case against Smith on counts 1 and 2 we cannot be satisfied of the safety of his conviction on those counts and his appeal must be allowed. 79. As to the money laundering conspiracy, Smith’s only argument is that the summing up was generally unfair. There was clear evidence to implicate Smith in the East Midlands incident which Smith did not refute by evidence of his own. Whilst it is true that the summing up was somewhat slanted against Smith, this was primarily in relation to Barbsy’s evidence and we are satisfied his conviction for the money laundering conspiracy is safe. Arthur Dawes 80. Arthur Dawes was tried only on count 3, conspiracy to launder money, on which he was convicted. His first ground of appeal relates to the summing up. The argument of Mr Gregory Bull Q.C., who has appeared for him before us as he did in the court below, is that the judge provided insufficient reference to the case of each defendant and that as the defences were, to an extent intertwined, deficiencies in relation to the summing up of one defendant’s case had a ‘knock on’ effect on the others. It is necessary to focus primarily however for present purposes on Arthur Dawes. At the very beginning of his summing up the judge said: “You may think that it is now clear that Rebecca Bridge and Arthur Dawes were keeping the books for the UK end of a multimillion pound trade in illegal drugs, principally heroin because of the huge sums of money involved. The prosecution have asserted that and no one really has sought to persuade you otherwise. The Crown say that Rebecca Bridge knew what she was doing and Arthur Dawes knew both what she was doing and what he was doing.” 81. Mr Bull submits that it was never conceded this appellant knew the books were kept for a multimillion pound trade in drugs. His case was that the books were kept on behalf of Anthony Handley whom the appellant thought was involved in cigarette smuggling. The prosecution had to prove that the books were the books of the conspiracy and related directly to the supply of drugs. The judge’s comment, so it is submitted, could have led the jury to conclude without any further consideration that the prosecution’s case was correct. 82. It is pointed out by the Crown that the judge’s observation reflected the tacit admission of Arthur Dawes at the end of his case. Discussion with counsel prior to the summing up clarifies the position. As the judge pointed out the real question was, who knew what? Arthur Dawes case was that he believed the entries related to Handley’s cigarette smuggling. The judge’s comment might have been better phrased, but it seems to us the jury, having only recently being addressed by Mr Bull, can have been in no doubt what the defence case was. 83. It is important to look at how Arthur Dawes defence proceeded. When interviewed he mostly declined to answer questions albeit he did accept the £10,000 found at 5 Central Avenue was his. In particular he declined to answer questions about the observations at Newport Pagnell. 84. In his defence statement Arthur Dawes denied conspiring with anyone to launder the proceeds of drug trafficking or any other criminal activity . Likewise he denied that the money counting machines related to laundering the proceeds of drug trafficking or any other criminal activity . Further, he denied presence at Newport Pagnell service station when any money was handed over. The defence he put forward when he gave evidence was entirely new and had not been foreshadowed by anything he had said before. 85. The key aspects of the case against Arthur Dawes were the events at Newport Pagnell service station on 7 June 2003 and the ledger entries. Observations were undertaken in the parking area on the Northbound side of the M.1. This was based on information received by the police. A black London taxi arrived and the driver walked towards the services. Then a Passat drove in. Its driver was, as he eventually admitted at the trial, Arthur Dawes. He had a female passenger who, although never identified, was said by the Crown to be Rebecca Bridge. This Arthur Davies denied. A Tesco’s cool bag was taken from the boot and handed to the taxi driver who returned to his car and drove away. The taxi was stopped and the Tesco cool bag recovered. It contained two J.D Sports bags containing just under £100,000. 86. The Passat was not stopped but was seen later the same evening being driven by Arthur Dawes with Rebecca Bridge as the passenger. A number of shopping bags were seen which had not been seen in the car at Newport Pagnell. 87. Arthur Dawes changed his instructions during the trial accepting he was present at Newport Pagnell and that he handed over a bag containing money. He was with a woman, whom he did not name, but it was not Rebecca Bridge. He was handing over the money on behalf of Tony Handley, a recently convicted drug dealer in Birmingham. He said in evidence he had looked after the ledger for Handley for a short period and suspected Handley was involved in a cigarette smuggling operation. He never knew or suspected Handley was involved in drugs. Handley had contacted him and asked him to collect a woman. They drove to Newport Pagnell and handed over the bag of money. He did not think it was drug money but the proceeds of cigarette smuggling. 88. It was also Arthur Dawes evidence that there was reference in the ledgers to ‘Tony’ to whom large sums of money appeared to be going. He maintained this must be Handley. 89. It was suggested in cross-examination that Handley had recently been convicted and his name had appeared in the media; it was a convenient hook on which to hang his defence. Arthur Dawes’ response was he feared retaliation and he could only safely tell the true story now that Handley was safely locked up. 90. The judge in summing up to the jury told them there was one of two possibilities either he was telling the truth about Tony Handley and felt constrained to keep quiet about it until he was safely out of the way or he had taken advantage of a recent newspaper story as a useful hook on which to hang his new defence. We do not think that in the circumstances the judge was obliged to go further “to give adequate weight to the defence case.” In truth the last minute defence advanced by Arthur Dawes was no more than fanciful. Furthermore the judge did remind the jury about Arthur Dawes’ evidence on other aspects of the case at p132 and onwards of his summing up. 91. The other ground of appeal advanced on behalf of Arthur Dawes was that: “The prosecution failed to provide any notice in relation to applications for public interest immunity and failed to disclose any information or evidence concerning a linked Dutch police investigation into the criminal activities of Robert Dawes and Anthony Handley.” 92. The Crown’s response is that no notice of any public interest immunity application was served on the defence because none was made. We repeat what we said earlier in relation to John Dawes. The ambit of disclosure to be given by the court is partly circumscribed by the defence as disclosed by the defence. In this case Tony Handley was only introduced into the defence in the course of the trial. But even had he been introduced earlier we do not think there was any information or material available to the prosecution they should have but failed to disclose. We are satisfied that Arthur Dawes’ conviction is safe. Rebecca Bridge 93. Rebecca Bridge said little and did not give evidence. No freestanding ground of appeal is advanced on her behalf but she adopts and endorses the grounds advanced by the others. In particular John and Arthur Dawes. She submits that if John Dawes’ conviction is unsafe it has a “knock on” effect. Further she submits that if Arthur’s conviction is unsafe hers cannot stand. The Crown agree that her case stands or fails with Arthur Dawes. 94. The critical question in her case was her state of mind when she compiled the documents. We agree that if Arthur’s appeal against conviction succeeds her conviction cannot stand. However we are satisfied Arthur Dawes’ conviction is safe and so is hers. There was clear evidence against her unrefuted by any evidence from her. Sentence 95. It is submitted that the total sentence of 24 years for John Dawes was manifestly excessive. There were, however, three conspiracies and he was the major player in the United Kingdom. A particularly unpleasant feature was the manner of involvement of the accomplices and how John Dawes treated them. The judge presided over a 10 week trial and was thus very well placed to assess where on the scale of gravity the offences and the individuals fell. 24 years was at the top of the bracket but not manifestly excessive. 96. As to Arthur Dawes he fell to be sentenced for the money laundering only. In this he was heavily involved and was well aware of the entries in the books. Drug conspirators need money launderers as thieves need receivers. Money laundering cases vary infinitely on their facts. This was a very serious one being so close to the drug conspiracies and we cannot say 8 years was manifestly excessive. As to Smith, we can see nothing wrong with the sentence of 5 years for his part in the money laundering conspiracy. Result 97. The appeal against conviction of Ryan Smith on counts 1 and 2 (the drug conspiracies) is allowed. His appeal against conviction on count 3 (the money laundering conspiracy) is dismissed. His appeal against sentence on count 3 is dismissed. 98. John Dawes’ appeals against conviction and sentence are dismissed on all counts. 99. Arthur Dawes’ appeals against conviction and sentence on count 3 are dismissed.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1165/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1165

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[2008] EWCA Crim 3188

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No: 200806082/A9 Neutral Citation Number: [2008] EWCA Crim 3188 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 19th December 2008 B e f o r e : LORD JUSTICE SCOTT BAKER MRS JUSTICE RAFFERTY DBE HIS HONOUR JUDGE STEPHENS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 68 OF 2008 (OWEN ANTHONY MYRIE) - - - - - - - - - - - - -

No: 200806082/A9 Neutral Citation Number: [2008] EWCA Crim 3188 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 19th December 2008 B e f o r e : LORD JUSTICE SCOTT BAKER MRS JUSTICE RAFFERTY DBE HIS HONOUR JUDGE STEPHENS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 68 OF 2008 (OWEN ANTHONY MYRIE) - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr L Mably appeared on behalf of the Attorney General Mr G Smith appeared on behalf of the Offender - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: The Attorney-General seeks leave to refer a sentence of 30 months' imprisonment imposed on Owen Anthony Myrie to this court as unduly lenient. We grant that leave. 2. The offender, Myrie, is aged 39 and pleaded guilty in the Crown Court at Croydon to a single count of arson being reckless as to whether life would be endangered, contrary to section 1 of the Criminal Damage Act 1971 . The sentence was imposed by Her Honour Judge Downing. 3. The facts of the case are these. In the early hours of Saturday 14 June 2008 the offender started a fire at the address of a man called Norbert John. The offender poured a flammable liquid, probably petrol, onto the outside of the house, including on the front door and then lit the liquid and a mattress located below the living room window. He then lit the area with a naked flame. A neighbour saw the resulting fire and managed to raise the alarm, waking Mr John and his family, thereby enabling them to leave the house safely. There were two children in the house and the neighbours fortunately were able to get them out as well. 4. The fire brigade arrived and extinguished the fire, preventing it from spreading to the inside of the house. The offender committed the offence as an act of revenge following an altercation with Mr John a few hours before. 5. In a little more detail, what happened was this. At about 9 o'clock on the previous evening, Friday 13 June, the offender, who was driving a white van, was involved in a minor road traffic accident near Croydon with a car driven by Mr John. Matters became heated by the roadside. The offender produced a baseball bat. Mr John took out a Stanley knife from his car and the two men became involved in a scuffle. The offender it seems received an injury which caused some bleeding and Mr John then drove away from the immediate scene. The police arrived and spoke to the offender. A second police unit found and spoke to Mr John, who was still in the vicinity of the incident. The police decided to treat the incident as a damage only accident and for the purpose of facilitating insurance claims ensured that the details of the parties were exchanged. It was by this means that the offender obtained details of Mr John's address in Selsdon. On receipt of the information the offender told a police officer: "I'm telling you I'm going to get my revenge for this." The officer warned him against doing anything stupid. 6. Later that night, at some time after 1 o'clock the following morning, a neighbour of Mr John's heard a loud explosion and the sound of breaking glass. He looked and saw flames at the door of Mr John's mid terraced house. He went to the house and raised the alarm, banging and shouting for the occupants to get out. Inside were Mr John and his wife who were asleep on the sofa in the living room and their two children aged seven and 15. The alarm woke Mr John. He looked out of the window and saw flames at the front of his house. The children were taken outside to safety and Mr John and his wife also left. 7. Mr John went outside and by throwing buckets of water over the flames managed to extinguish the fire at the front door. At that moment the fire brigade arrived and extinguished the fire at the window. It was noticed that there was a strong smell of petrol at the front of the house. Officers spoke to a number of witnesses and established that a man had been seen running from the front door and then driving off in a white van. 8. A fire investigator visited the scene later in order to establish the cause of the fire. She found that the damage, which was estimated at some £7,000, included substantial damage to the front door and that the charring was confined to the outside of the house. She concluded that the fire had been started by the introduction of a flammable liquid to the outside of the house and combustible material, namely the mattress below the living room window. The area had then been ignited with a naked flame. The mattress had been left outside by Mr John some time before. 9. On the afternoon of 14th June the offender was arrested. He was asked about his van. On looking outside he said it was not in the street where he had left it and it must have been stolen. However, the police found a set of keys in the offender's possession and shortly afterwards the van was found parked nearby. When the doors were opened there was a strong smell of petrol immediately apparent. A carton containing what appeared to be petrol was found in the back. 10. The offender was interviewed under caution. He denied the offence and was charged on 15th June. 11. He has a previous conviction for handling stolen goods, in 1989, and three road traffic offences, for which he received fines in total of around £250. For sentencing purposes, he was a man of previous good character. 12. The pre-sentence report was available to the judge and this concluded that the offender had expressed remorse for his actions and demonstrated an understanding of how his conduct had affected others. The report assessed the likelihood of him committing further offences of a violent nature as medium. 13. There was also a psychiatric report which concluded that there were no relevant mental issues in the offender's case and that the likelihood of re-offending was low. 14. Mr Mably, who has appeared for the Attorney-General, has helpfully drawn the court's attention to the aggravating and mitigating features in this case. The aggravating features are, first, that the offence was committed as a premeditated act of revenge. In our judgment, this is a significant feature in an arson case. There was in the present case the preplanning to the extent that it was necessary, first, to go away and obtain the petrol. Secondly, the offence was committed at night and accordingly at a time when it would have been obvious that the occupants of the house were likely to be asleep inside, as indeed they were, including two children. Third, the property was a mid terraced house. That plainly means that there is an increased risk of the fire spreading to adjoining properties. Fourth, the fire was started at the main entry and exit point of the house, the front door. Fifth, having started the fire the offender left the scene and did nothing to raise the alarm. 15. As to the mitigating features, the offender pleaded guilty and was entitled to full credit for that. The fire was started outside the property rather than inside and in the event did not spread to the inside of the house. The offender is a man of previous good character and it is plain that there was substantial mitigation in that he had given long service to the public as a bus driver and there were many positive features to his life. Finally, this was a case in which not only was there a plea of guilty, but there was genuine remorse on the part of the offender. 16. The judge's attention does not appear to have been drawn to any of the relevant authorities on sentence in arson cases. This, in our judgment, is most regrettable, not least because sentencing in arson cases is very often not by any means an easy exercise. Mr Mably, on the other hand, has been able to draw this court's attention to all of the authorities and that has been of considerable assistance to us. 17. We should perhaps begin by making the possibly obvious observation that arson cases, like many other cases, are very much fact specific. But there are certain features that do arise from the authorities which it is particularly important to bear in mind. 18. The first case to which we were referred is Attorney-General Reference No 1 of 1997 (Glen Wheeler) [1998] 1 Cr App R(S) 54. In that case the offender pleaded guilty to arson being reckless as to whether life would be endangered. The nature of the offence is important, because arson being reckless as to whether life would be endangered comes one stage below, in terms of gravity, arson with the specific intent to cause danger to life. In that case the offender started a fire in a ground floor flat by setting fire to a cushion on a settee whilst the occupant was in the flat asleep in bed. He knew that the occupant, Mr Perry, had been drinking and must also therefore have known that he might fall asleep. A probation order was varied to a sentence of four-and-a-half years' imprisonment following a plea of guilty. That was a case where McCowan LJ said at page 56 of the report: "We consider that the right sentence in these cases, and certainly the right sentence in the present case, would have been one of six years..." We repeat, that that was a case where there was a plea of guilty and the court went from 6 years to four-and-a-half years on the basis of double jeopardy. That was a substantial discount, we would observe, because it was a case where the offender was not already in custody. 19. The next case is R v Gerrard [2004] 2 Cr App R(S) 11, at page 47. There the offence was again arson being reckless whether life would be endangered. In this instance by throwing a petrol bomb at the front door of a house occupied by a person who had given evidence against the appellant. A sentence of 7 years, following a plea of guilty, was reduced to 6 years, with 12 months consecutive for taking revenge against a witness. There are a number of features about the case of Gerrard that are similar to the present case, not least that that was a case involving an act of revenge. 20. Attorney-General's Reference No 23 of 2001 (R v Fielder) [2001] 2 Cr App R(S) 514, again involved an offence of reckless arson. In that case a sentence of three-and-a-half years was increased to 5 years. That was a case in which the offender knew that the premises were unoccupied. The sentence was passed, albeit with some doubt on the part of the appeal court on the basis that it was being treated as a spur of the moment offence. 21. Then comes the case of R v O'Brien [2003] 2 Cr App R(S) 99, at page 599. Another case of reckless arson, this time following a conviction, where 10 years was reduced to 6 years. The premises in that case, however, were unoccupied. The offence was premeditated and the damage was caused inside the premises. 22. Then Attorney-General's Reference No 50 of 2005 (R v Andrews) [2006] 1 Cr App R(S) 82, at page 473. That was a case of reckless arson, committed by somebody who was aware that the hostel to which he set fire was empty. A sentence of 3 years was imposed following conviction, the court saying that it should be increased to four-and-a-half years and that the appropriate sentence would have been one of 6 years. 23. Then there is R v Frankham [2007] EWCA Crim 1320 in which Thomas LJ, giving the judgment of the court, said at paragraph 9: "But the cases cited to us relating to the appropriate sentences for offenders who commit arson with intent to endanger life show that the starting point tends to fall in a range of eight to ten years' imprisonment." When we first read this authority we had some doubt as to whether that was the starting point that the judge considered appropriate following a trial, but we think that that must be the case when we look at his observations in the following paragraph and reference to two earlier authorities. 24. Finally, we turn to Attorney-General's Reference No 98 of 2001 (R v Hussain) [2001] EWCA Crim 3068 . That was a reckless arson case. The premises were occupied by the offender's wife and daughter. After a trial lasting five days the offender was convicted. Mance LJ said at paragraph 37, that in that case a sentence of at least (and we emphasise those words "at least") 6 years would have been appropriate on an initial sentencing exercise. Mance LJ sought to distinguish the case from the earlier decision to which we have referred of Wheeler . What happened in this case is that a community rehabilitation order to which the appellant had been sentenced, was increased to a sentence of 4 years' imprisonment. 25. Having given due consideration to all the authorities, it seems to us, in particular following the case of Frankham , that the starting point for arson with intent to endanger life is in the range of eight to 10 years (that would of course be following a trial); and in cases involving reckless arson, we would regard the range as rather below that, but it is apparent to us that the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent to endanger life is a fine one. We are entirely satisfied that the aggravating features of the present case, which we have described, and even after taking into account the various mitigating features to which we have also referred, that this a case that falls at the upper end of offences of reckless arson. 26. We have come to the clear conclusion that the sentence imposed on this offender was in the circumstances unduly lenient. We think that following a plea of guilty, a sentence approaching 6 years would have been appropriate in this case. That indeed takes into account the very substantial mitigation that this offender had. Taking into account the fact that he is being sentenced for the second time, we think that the appropriate sentence with which to replace two-and-a-half years is one of four-and-a-half years' imprisonment. The sentence will be varied accordingly with full credit for all the time spent in custody.

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[2017] EWCA Crim 1460

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Neutral Citation Number: [2017] EWCA Crim 1460 Case No: 201600193 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/10/2017 Before : LADY JUSTICE THIRLWALL MR JUSTICE WARBY and THE HONORARY RECORDER OF WESTMINSTER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: Regina - v - Mehmet Bala - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M Stanbury

Neutral Citation Number: [2017] EWCA Crim 1460 Case No: 201600193 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/10/2017 Before : LADY JUSTICE THIRLWALL MR JUSTICE WARBY and THE HONORARY RECORDER OF WESTMINSTER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: Regina - v - Mehmet Bala - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M Stanbury appeared on behalf of the Appellant Mr J Polnay appeared on behalf of the Crown Hearing date: 7 th July 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Approved LADY JUSTICE THIRLWALL : 1. On 15 th December 2006, at the Central Criminal Court the appellant, then 20 years old, pleaded guilty to manslaughter on the basis of diminished responsibility. He had been charged with murder but the plea of guilty to manslaughter was accepted by the Crown. 2. On 22 nd June 2007 he was sentenced by the late HHJ Goddard QC to Custody for Life with a minimum term to serve of 4 ½ years less 347 days spent on remand. 3. He is now 30 years old. Since 2013 he has been in hospital pursuant to sections 47 and 49 of the Mental Health Act (MHA) 1983. His applications for an extension of time of 10 years to apply for leave to appeal against sentence and to call fresh evidence were referred to the full court by the single judge. It is the appellant’s case that instead of a sentence of Custody for Life the judge should have imposed a hospital order under section 37 Mental Health Act (MHA) 1983 together with a Restriction Order under section 41. 4. The application is based on an analysis of the evidence available to the judge at the time of sentence and upon recent psychiatric reports which were the subject of the application to receive fresh evidence. We received those reports and heard from two psychiatrists de bene esse. Extension of time 5. The current solicitors were first instructed in June 2013. The original solicitors had been subject to an intervention by the Solicitors Regulation Authority which caused some delay in obtaining the original case papers. In November 2013 a psychiatrist was instructed to undertake a full assessment of the appellant but the report was not produced until May 2014, followed by a further written assessment in July 2014. There were no transcripts of the hearings, and no recordings from which transcripts could be made. Counsel advised that in those circumstances there were no prospects of a successful appeal. A further opinion was sought from Mr Stanbury who appeared before us and advanced the applications with skill and focus. He advised that there were grounds of appeal. It is not clear to us why there was no appeal at the time of or at least within six months of the sentence but whatever the reason it was not related to the appellant. We extend time and give leave to appeal. Background 6. The appellant was born on 30 th June 1986. At the time of the offence he was a voluntary inpatient on a psychiatric ward at Homerton hospital. This was his third voluntary admission. He had previously been a voluntary patient between 1 st June and 21 st October 2005 and between 28 th March and 2 nd April 2006. On 1 st June 2006, he presented himself at the accident and emergency department at the hospital and was admitted to the psychiatric ward. On 22 nd June he stated that he did not want to leave the hospital as he was concerned that he may do “bad things.” His leave was cancelled as a result and he was advised to remain in the hospital. The responsible clinician decided that he should be detained under the Mental Health Act should he try to leave the ward. On the days that followed he reported further violent thoughts and on 25 th June he became threatening to staff. 7. On 6 th July the appellant was noted to be paranoid about living on the streets. His responses to a questionnaire were, it was believed, consistent with a diagnosis of borderline antisocial personality disorder. At this stage he was not expressing thoughts of violent behaviour. His antipsychotic medication was increased and he was allowed 2 to 3 hours escorted leave from the ward. The offence 8. On 7 th July 2006 the appellant had been out and had gambled away most of the money he had previously withdrawn from the bank account into which his benefits were paid. He returned to the hospital but left again. He arrived at Highbury and Islington underground station at approximately 5.55pm. He went onto the platform and deliberately pushed John Curran (a complete stranger, on his way home from work) in front of an oncoming underground train. Mr Curran was dragged along the platform and died at the scene. The appellant ran away. He returned to the hospital at about 7.15pm. He appeared anxious and worried. He said he had lost £150 gambling. He took his medication and went to bed. 9. Police attended at the hospital in the early hours of the morning with an image of the suspect taken from CCTV footage. The appellant was identified by staff and was asked to speak to the police. He asked “Did the man die?” and later, “I killed a man didn’t I? I know what I did”. 10. He was assessed by two psychiatrists on 8 th July. During the course of the assessment interview he said that he had felt like attacking someone because he had gambled and lost around £90. He needed to give his mother £60 to renew his passport and felt that he would be discharged from hospital without any identity. He said that he did not know whether it was his “right side” or his “left side” that was responsible for the incident. He told the psychiatrist that he had considered he might die as well if the man had pulled him with him. He said his mind was blank at the time he pushed Mr Curran under the train. He said he knew that his actions were wrong. He said that after the offence he left the tube station quickly, took off his T-shirt, then took the 242 bus to Hackney. He put his T-shirt back on and made his way back to the Homerton Hospital where he waited for the police to come and get him. He expressed remorse and then said, “the guy lost his life for £150.” Towards the end of the interview he said “I know I’m a lifer now - thankfully I’m in UK and not USA where I would be executed.” The psychiatrist concluded that the appellant was suffering from a paranoid psychotic illness but did not need to be taken to a mental hospital; he was fit to be interviewed and detained. 11. After the police interview the appellant was charged with murder and remanded to Feltham Young Offenders Institute. He was admitted to the healthcare centre for assessment. Anti-psychotic medication was prescribed for him. On 12 th July 2006 he was transferred to HMP Belmarsh. He was assessed on 27 th July 2006 and in her report of 26 th September 2006 the locum consultant forensic psychiatrist expressed the view that the appellant presented a grave and immediate danger to others. She advised that he be referred to Broadmoor Hospital. 12. The defence obtained a report from Dr Duffield, consultant psychiatrist, on 12th October 2006. He concluded that the appellant was suffering from paranoid schizophrenia and was unfit to plead. He advised that a full assessment be carried out. He recommended urgent transfer to hospital for treatment. 13. There were hearings before judges of the Central Criminal Court on 16 th October and 27 th November 2006. Each was adjourned so that further medical evidence could be obtained. Dr Chesterman, consultant psychiatrist, was instructed by the Crown. His report, dated 26 th November 2006, recorded his assessment and conclusion that at the time of the killing the appellant was experiencing active symptoms of schizophrenia which would have amounted to an abnormality of mind within the meaning of Section 2 of the Homicide Act 1957. He concluded “although I recognise that this would be a matter for the jury, in my opinion, Mr Bala’s mental illness at the time would have substantially impaired his responsibility.” He went on to say that notwithstanding the symptoms of schizophrenia the appellant “was aware of his actions and that they were wrong.” It was Dr Chesterman’s view that Mr Bala was fit to plead and to stand trial. He expressed the view that if a plea to manslaughter on the grounds of diminished responsibility were accepted by the court this was a case for a hospital order under Section 37 of the MHA 1983 together with a restriction order under Section 41, without limit of time. He agreed with the earlier view that the appellant posed a grave and immediate danger to others and that any treatment of his mental disorder should take place in conditions of maximum security. 14. On 11 th December before the then Recorder of London, the Crown said that in the light of the report by Dr Chesterman, a plea of guilty to manslaughter on the grounds of diminished responsibility would be accepted. The case was adjourned for medical experts to attend to assist on the question of sentence. At this stage, according to the notes prepared by both prosecuting and defence counsel for the ultimate sentencing hearing, the Recorder was minded to make a hospital order on the basis of the two expert reports available at the time, but subject to an assessment of the appellant at Broadmoor. 15. On 30 th January 2007 the matter was mentioned before HHJ Goddard QC. She adjourned the case for a three month assessment at Broadmoor to which the appellant was admitted on 2 nd February 2007. The assessment, which took place under Sections 48 and 49 MHA 1983 was carried out by Dr Andrew Payne, consultant forensic psychiatrist, and his team at Broadmoor Hospital. Dr Payne took a different view from those who had previously assessed the appellant. In his report dated 20 th April 2007 he concluded: – “the symptoms of psychosis were unlikely to have been a significant cause of the appellant’s behaviour in committing the index offence.” In Dr Payne’s view the behaviour was more likely to be related to his anger at having lost money gambling, his failure to achieve his objectives on that day and his anger in relation to earlier sexual abuse and other matters. 16. It was Dr Payne’s firm view that the appellant was not suffering from a mental illness but instead from a personality disorder which was not currently treatable due to his lack of truthfulness and persistent requests to remain in hospital and take medication. Although his psychopathic disorder may warrant his detention in hospital for medical treatment such treatment was not currently likely to alleviate or prevent a deterioration of his condition. It was more likely to aggravate his complaint of psychotic symptoms, his demands for medication, and his avoidance of the psychological difficulties which have resulted from his previous experiences. 17. Dr Payne and his clinical team considered that the psychotic symptoms the appellant was describing were not genuine. For that reason a decision was taken to stop his medication on 13 th March 2007. Dr Payne concluded “I am therefore unable to make any medical recommendations to the court with respect to sentencing.” 18. The appellant was returned to custody on 3 rd May 2007. 19. The prosecution instructed Dr Chesterman to review his report in the light of Dr Payne’s report. In his first addendum report of 26 th April 2007 Dr Chesterman appeared to accept Dr Payne’s conclusion that the offence was more likely to have been caused by an untreatable personality disorder rather than mental illness and so any intervention was unlikely to reduce the risk of further offending. 20. At the sentencing hearing listed for 27 th April 2007 the judge granted a defence application for a further adjournment to obtain a further psychiatric report. They obtained a comprehensive report from Dr Oyebode dated 30 th May 2007. In the meantime Dr Duffield had produced an addendum report dated 14 th May 2007. Having read Dr Payne’s report he remained of the opinion that the most likely principal diagnosis was one of paranoid schizophrenia. Dr Chesterman then produced a second addendum report in which he restated his opinion that at the time of the killing the appellant was suffering from schizophrenia. In the light of Dr Payne’s report the prosecution had reconsidered their decision to accept a plea of guilty to manslaughter but ultimately maintained their original stance. 21. Dr Oyebode reviewed in detail all the previous psychiatric assessments and then interviewed the appellant on 9 th May 2007. Mr Bala told him “I just decided to turn up to the train station and push someone to the death, because I told people what I would do, I should have got away with it, why am I in so much psychological trauma.” He could not state whether there was any specific planning nor was he able to give any great clarity about his thoughts before the index offence except for the fact that he had said he would do it. When asked how he then felt about the killing he said “as time goes on, I feel less and less guilty because the incident is moving away from me. I have accepted it, I don’t care who I have killed. I want to start afresh.” 22. Dr Oyebode spoke to Dr Payne on 4 th May 2007. He records that Dr Payne remained of the view that on the basis of the assessment at Broadmoor Hospital the appellant was not treatable. When Dr Oyebode spoke to him again on 18 th May 2007, Dr Payne repeated that he did not consider that the appellant needed to be in hospital for treatment. Dr Oyebode expressed the view that the appellant was then currently mentally ill and required treatment in hospital. Dr Payne said that in the light of their own assessment Broadmoor could not take the appellant. He is reported to have suggested that the court could dispose of the case by way of a prison sentence and “he can have a look at him again in about three months’ time.” 23. Dr Oyebode concluded that at the time of the killing the appellant was probably suffering from the symptoms of paranoid schizophrenia. Notwithstanding previous drug use, he did not consider that the psychosis was drug induced. He acknowledged that there was persistent misbehaviour during his teenage years but noted that a conduct disorder was not diagnosed at that time. He considered it would be difficult to arrive at a firm diagnosis of a personality disorder in the absence of a clear diagnosis of a conduct disorder. He recommended to the court that the appropriate disposal was a hospital order under Section 37 MHA 1983 together with a restriction order under Section 41 without limit of time. In a report dated 3rd June 2007 Dr Chesterman agreed with Dr Oyebode’s diagnosis of paranoid schizophrenia. The sentencing hearing 24. It is most unfortunate that there are no transcripts of any of the sentencing hearings in this case. Sadly the sentencing judge died some years ago. Her notebooks have been destroyed. As a result, we are reliant on the collective recollection of counsel who appeared at that time and who have provided an agreed note for which we are grateful. We also have the following documents:- (i) Prosecution opening note (ii) Prosecution submission on approach to sentencing (iii) Defence skeleton argument and mitigating factors (iv) Defence advice on sentencing options (v) The contemporaneous log of the sentence hearing on 22 nd June 2007. This is informative but it was compiled to assist in identifying where on the transcript any particular matter would be found and so it is a series of snapshots. A great deal is missing. 25. The judge had all the contemporaneous medical reports. Drs Duffield, Oyebode and Chesterman attended the hearing. The sentences open to the judge 26. There were four sentences available:- Custody for life; Indefinite detention for public protection (DPP); A determinate sentence; A hospital order under Section 37 MHA 1983 with a Restriction Order under Section 41. 27. A hybrid order under Section 45A MHA 1983 was not available because the appellant was under 21 years of age (see AG’s reference no 54 of 2011 [2011] EWCA Crim 2276 ) but given the proximity of his 21 st birthday, 8 days later, had this been a realistic possibility the case could have been adjourned. That it was not considered may reflect the fact that as at 2006 orders under Section 45A were rarely used. 28. Under section 47 MHA 1983 the Secretary of State for Justice had (and has) power to transfer to hospital a person sentenced to imprisonment/detention where the person is suffering from a mental disorder, the mental disorder makes it appropriate for the prisoner to be detained in hospital for medical treatment and appropriate medical treatment is available. The judge’s approach 29. Mr Gursoy (who appeared for the appellant below) recalled that he “urged the sentencing judge to grant a hospital order as this was the best disposal of the case in the circumstances but there were difficulties in finding available beds at the time.” When asked to clarify for the purposes of this hearing whether the judge did not impose a hospital order due to the lack of a bed or because she did not regard it as a suitable disposal in any event he recalled that “the Judge did not regard it as a suitable disposal as a primary matter, however, there were concerns that there was a shortage of beds.” Mr Stanbury says that Mr Gursoy must be mistaken and that the judge’s approach was dictated by the fact that there was no bed available for the appellant and no way of obtaining one, notwithstanding several adjournments for that purpose. She did not consider the merits of the various psychiatric opinions at all, he says. 30. Mr Rees QC (who appeared for the Crown) could not recall whether the enquiry about the availability of the bed was made merely to see what options were open to the judge or whether it was the fact that there was no bed that was determinative of her decision. 31. The record shows that the judge was prepared to hear from the doctors but it is not clear whether they gave evidence (although in the Respondent’s notice it is asserted that they did and were cross examined). Whatever the position as to live evidence it is clear that the judge was being told that in the absence of a hospital bed it was not open to her to make an order under section 37. Discussion 32. The judge was presented with conflicting medical evidence on the question of the appropriateness of a hospital order as a disposal. She had granted an adjournment so that there could be full assessment of the appellant. The outcome was not the one that had been expected by the other psychiatrists; the psychiatrist responsible for the assessment did not consider that a hospital order was appropriate and had written a detailed report explaining why he and his team took that view. He was not prepared therefore to make a bed available at Broadmoor. This was not about a shortage of beds. It was Dr Payne’s professional view that treatment would not be effective and so there was no bed. Dr Payne’s report, produced after three months’ assessment, would have weighed heavily with the judge, particularly when the views expressed in the reports produced by other psychiatrists were reached after much shorter assessments. She would also have been reassured by Dr Payne’s suggestion that he would reassess the appellant were he to be subject to a custodial sentence. If appropriate, it would be for the Secretary of State to act under section 47. 33. In a note prepared for the final hearing on 22 nd June 2007 Mr Gursoy submitted that on the balance of the medical evidence a hospital order was the correct outcome in this case but Dr Payne had concluded that the appellant should not be admitted to Broadmoor. He submitted to the judge that she should make an order under section 38 of the MHA (an interim order) but, unsurprisingly, the judge did not take that course. Many months had now passed since the first psychiatric report had been obtained and the assessment was unhelpful. We assume therefore (and the log supports this) that Mr Gursoy then addressed the judge on the basis set out in his note ie that the defendant had pleaded to a count of manslaughter by reason of diminished responsibility but a hospital order was not available. His detailed and lengthy document dealt with the psychiatric evidence and the sentencing options by reference to statute and the authorities. 34. The judge rightly considered that the appellant was dangerous within the meaning of the Criminal Justice Act 2003. She imposed Custody for life with a minimum term of 4.5 years. In the light of the evidence before her that sentence was, in our view, inevitable. 35. The appellant was returned to custody. On 17 th October 2007 he was transferred to Broadmoor under section 47 MHA 1983 where he remained until October 2013 when he was transferred to the John Howard centre, a medium secure unit. He has more recently been transferred to the Wolfson House low secure unit. He remains subject to an order under section 47 and to a restriction order, pursuant to section 49 MHA 1983. The life sentence remains in place. Grounds of Appeal 36. Although three in number the grounds essentially come to this: the judge was wrong to impose a life sentence. The sentence was, Mr Stanbury submits, wrong in principle. The judge should have imposed a hospital order with a restriction order under ss.37 and 41 of the MHA 1983 given the nature of the appellant’s illness; the causal connection between that illness and his offending; the availability of treatment and the beneficial release arrangements that would be conferred by the substitution of a hospital order. Fresh Evidence 37. As we have already said, the sentence imposed was inevitable in the light of the evidence before the judge . We were asked to consider as fresh evidence the reports of three consultant psychiatrists: Dr Witharana (16 th May 2014); Dr Nimmagadda (2 nd July 2014 and 31 st May 2016); and Dr Ajaz (9 th December 2016). All three psychiatrists were of the view that a hospital order was and is the most appropriate disposal in this case. We heard from Dr Ajaz, the appellant’s responsible clinician at Wolfson House, and from Dr Nimmagadda who performed a review of all of the evidence and conducted his own assessment of the appellant in 2017. The latter included a retrospective assessment of the appellant’s mental health at the time of the offence. We are grateful to both doctors for the clarity of their helpful opinions. 38. It is Dr Ajaz’s opinion that the appellant suffers from schizophrenia and he has a personality disorder (albeit of a different type from that diagnosed by Dr Payne in 2007). He points out that the presence of these two diagnoses is likely to have contributed to the difference of opinion regarding diagnosis at the time of sentencing. 39. The schizophrenia is now well controlled with medication and there is currently a low risk of serious life threatening violence in the appellant’s current placement, and a low risk of low-grade physical aggression. The appellant has been having escorted community leave for over 6 months and there have been no concerns about his risk to the public. There is an unquantified risk of sexual offending but there has been no evidence of such behaviour during his current admission, and this will continue to be monitored. The risk of violence increases as a direct consequence of the symptoms that he experiences when he is unwell. He has already had some short periods of unescorted leave which have gone well. 40. The personality disorder is lifelong. Many of its features are still present, Dr Ajaz says. The appellant has undertaken a prolonged period of talking therapy directed to his personality disorder. The present proposal is to work towards a conditional discharge from hospital. Dr Ajaz expressed concern that were the appellant returned to prison in accordance with his sentence his mental state would deteriorate significantly. He accepted in cross examination that it was not inevitable that the appellant would be returned to prison. Were the Parole Board to agree to the appellant’s release into the community he would be entitled to support pursuant to section 117 MHA 1983. It was his view however that the more effective support would be provided under the auspices of a section 37/41 disposal. 41. Dr Witharana was of the opinion that the appellant was suffering from a schizophrenic illness at the time of the offence and that the illness was of a sufficient nature and degree for detention under s.37 of the MHA at the time of the sentencing, together with a restriction order under s.41. As to Dr Payne’s view that the appellant had a personality disorder, Dr Witharana considered that whilst the appellant was demonstrating some traits suggestive of a personality disorder, the clinical picture was predominantly that of a schizophrenic illness. 42. Dr Nimmagadda conducted a comprehensive review of the papers and assessed the appellant himself, as we have said. He too concluded that the appellant was and is suffering from schizophrenia and in his view there was overwhelming evidence to suggest that he was suffering from schizophrenia at the time of the offence. He did not consider that it was open to Dr Payne to diagnose a personality disorder without first addressing the mental illness. We would observe that even if that view were correct, it is inescapable that it is now well established that the appellant has a personality disorder, and has done throughout his adult life. The fact that no diagnosis of conduct disorder was made while he was under 18 is no longer relevant. 43. Dr Nimmagadda was asked to consider and report upon the extent to which the schizophrenia had caused the appellant to commit the offence. In his addendum report he said that “although the appellant’s mental disorder had not rendered him not guilty by the reason of insanity, he still was able to have a defence of diminished responsibility, a psychiatric defence.” He added, “It could be concluded that his offending was at least partly attributable to his mental disorder .” 44. Dr Nimmagadda was cross examined, with particular focus on his view that the offending could be “at least partly attributable” to his mental disorder. He developed his view to the point of saying that but for his mental disorder (schizophrenia) the appellant would not have committed the offence, irrespective of any personality disorder. He considered that the appellant had not fully appreciated the consequences of what he was doing. He added that the appellant undoubtedly “had the volition” to commit the offence. It is plain to us from the records of his conversations with psychiatrists shortly after the offence that the appellant had understood what he was going to do before he did it, intended to do it and acknowledged immediately afterwards what the consequences were: a man was dead and he would be serving a life sentence. We do not accept Dr Nimmagadda’s developed view. We do accept Dr Nimmagadda’s earlier conclusion as set out above, ie that the offending was “at least partly attributable to the mental disorder.” 45. In R v Vowles [2015] EWCA Crim 45 this court set out in detail the approach to be taken by sentencing judges dealing with offenders with mental disorders. At paragraph 54, having earlier set out the statutory framework, the court described the situation in which a section 37/41 order is likely to be the correct disposal in a case where a life sentence is being considered. It is that 1) the mental disorder is treatable 2) once treated there is no evidence the offender would be in any way dangerous, and 3) the offending is entirely due to that mental disorder. 46. In this case the new evidence does not demonstrate that the offending was entirely due to the mental disorder. We are quite satisfied, on the evidence available at the time and the more recent evidence, that the appellant’s behaviour when committing the offence was affected by both mental illness and his personality disorder. On the face of it therefore this case did not come within the situation described as likely to lead to a section 37/41 order as described in Vowles . To that we would add the reminder in Vowles that consideration should be given to whether the powers of the Secretary of State under section 47 to transfer a prisoner for treatment would, taking into account all the other circumstances, be appropriate. It is clear from the court log that the judge had well in mind those powers, in the light of Dr Payne’s reference to a further review after three months. We are satisfied therefore that even on the fresh evidence the judge could not have concluded, as required by section 37(2)(b), that “having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under [section 37.]” In short the judge’s conclusion was correct at the time and, with hindsight and fresh evidence, remains correct. 47. The real purpose of this appeal was to move the appellant from the release regime consequent upon a life sentence to the regime consequent on a hospital order. That is not a proper basis for an appeal if the original sentence was not wrong in principle. There are some, relatively few, cases where medical evidence obtained years after sentence convincingly demonstrates that the sentencing court proceeded on the wrong basis because of an error by an expert – see eg R v Ahmed [2016] EWCA Crim 670 . On analysis that is not this case. The sentence was not wrong in principle. 48. The arrangements for release will be for the FTT (with information and advice from the responsible clinician), the Secretary of State and, ultimately, for the Parole Board. Release can only be directed if the Parole Board is satisfied that it is no longer necessary for the protection of the public that he be confined (see S27, Crime (Sentences) Act 1997). 49. Accordingly, notwithstanding the focussed and helpful submissions of Mr Stanbury this appeal is dismissed.

2017_10_06-4071.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1460/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1460

261b38725a45009e536154ad491b89a94d8d6854185f000a205e6302cc456ffb

[2019] EWCA Crim 1931

EWCA_Crim_1931

crown_court

Neutral Citation Number: [2019] EWCA Crim 1931 Case No. 201903640 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 31 October 2019 B e f o r e: LORD JUSTICE SIMON MRS JUSTICE MOULDER DBE and HIS HONOUR JUDGE THOMAS QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) _______________ R E G I N A - v - CHELSEA LOUISE ROBERT

Neutral Citation Number: [2019] EWCA Crim 1931 Case No. 201903640 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 31 October 2019 B e f o r e: LORD JUSTICE SIMON MRS JUSTICE MOULDER DBE and HIS HONOUR JUDGE THOMAS QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) _______________ R E G I N A - v - CHELSEA LOUISE ROBERTS _______________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) __________________ Miss J Ledward appeared on behalf of the Attorney General Mr P W Genney appeared (via video link) on behalf of the Offender ____________________ J U D G M E N T WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. LORD JUSTICE SIMON: 1. This is an application by Her Majesty's Solicitor General, under section 36 of the Criminal Justice Act 198, for leave to refer to this court a sentence which he considers to be unduly lenient. We grant leave. 2. The offender is Chelsea Louise Roberts. She is now aged 26. She was sentenced by His Honour Judge Thackray on 6 September 2019 in the Crown Court at Kingston-upon-Hull. 3. On 12 August 2019, at a plea and trial preparation hearing, the offender pleaded guilty to a single count of blackmail, contrary to section 21(1) of the Theft Act 1968. Following the preparation of a pre-sentence report, she was sentenced to a term of four months' imprisonment. 4. Over a period of about a year, the offender told the victim (a former sexual partner) that she was pregnant by him; that she had given birth to a baby boy, who was seriously unwell; that the child had been adopted; and that he had eventually died. She demanded various sums of money, initially ostensibly to pay for a termination; then for things that were necessary for the child, which he paid, believing that she had been pregnant; and later on the basis that he was the father of the child. These were all elaborate lies. The offender had not been pregnant, and there was no child. When the victim showed any sign of resisting her demands, she threatened to give birth to the (fictional) baby, contrary to his wishes, and then to tell his family and his partner of the existence of the child if he did not keep paying. Later, when he confronted her with blackmailing him and said that he could report her to the police, she threatened to tell the police that he had raped her. In total, the offender obtained over £29,000 - not only the entirety of the victim's life savings, but leading him to incur significant debt. 5. By the time of the sentencing hearing, the offender was the primary carer of her two young children, aged nearly four years and fourteen months respectively, and she was expecting a third child. 6. We set out the facts in a little more detail. It was in 2014 that the offender met the victim, "SC", online. They began a casual sexual relationship, until she told him that she was pregnant with her former partner's child, and their casual relationship ended. Contact resumed in 2015, and they would meet for sexual intercourse from time to time until the summer of 2016. 7. In June 2016, the offender told him that she was pregnant and required money for a termination at a private clinic. He transferred a sum of £650 to her bank account in order to fund the termination. Thereafter, he considered that they drifted apart and he began a relationship with another woman. 8. However, in September 2016, some weeks after he had last had contact, they met again and had sexual intercourse. Within a few days, the offender claimed that she had become pregnant again as a result of this encounter and requested money for a termination at a private hospital. He agreed and transferred £600 to her. 9. Over the following weeks and months, the offender contacted him to say that appointments for the termination had been missed or cancelled; that she felt she could not go through with another termination; that she needed more money to book another appointment; and, as time had passed, that the procedure would now be more complicated and more expensive. She asked for further funds, which he paid. From time to time they would meet to discuss the situation. He could not tell if she was pregnant. When he showed any sign of not transferring the requested monies, he would be told "Well, if you want a child …", and words to that effect. He felt pressurised and transferred more and more money to her, fearing that she would not go through with the termination if he did not. He did not tell anyone else about the pregnancy or the demands for money. 10. At the beginning of 2017, he spoke to the offender about the pregnancy. She said that a further medical appointment had been made and that she hoped that the pregnancy would proceed, as she wanted to have the baby. A short time later she told him that the baby had been "saved". She then claimed to have given birth to a baby boy, who was critically ill. This was all a lie. On this occasion, she had never been pregnant. 11. Following the purported birth, the victim struggled to obtain information from the offender about the child. He was told that it was a boy, that he was alive, and he was given a name. There were further requests for money for general expenses related to the baby, which the victim paid. 12. In March or April 201, the offender indicated that she intended to have the child adopted once he was well enough to leave hospital. The victim asked for pictures of the child. None was forthcoming. The purported adoption date went back from August, to September, then October 2017, when the offender told the victim that the child had been placed with another couple with the assistance of Social Services. The victim had not told his partner or his parents about the child. If he said that he did not have the money, or questioned why she wanted or needed it, the offender made threats that his family and/or his partner would be told about the child. Later, he confronted her with the suggestion that the baby did not exist and that he was being blackmailed. He said that he could go to the police. The offender responded by saying that she would "tell them what you did" and "... how you took advantage of me and raped me when we were together". 13. The victim's partner began to receive Facebook messages from an anonymous account. This had been set up by the offender in order to show the victim that the offender could contact his partner if she wanted to. No reference was made to the pregnancy or the child, but the victim took the messages as re-enforcements of the threat. 14. In mid-November 2017, the offender told the victim that the child had died because of heart problems, and that she and the adoptive parents were planning the funeral. She demanded more money, which the victim paid. 15. Between September 2016 and November 2017, the victim transferred a total of £29,800 to the offender. This was his life-savings. He then took out payday loans in order to meet his own expenses. 16. There were occasions when the offender said that she would pay some of the money back. However, she failed to attend pre-arranged meetings and, having written post-dated cheques for £5,000 and £15,000, later said that there were insufficient funds in her account for them to be honoured. 17. The offending was discovered when the victim's partner found messages on his telephone about the financial transactions. The police were contacted. At the time he made his initial witness statement, the victim was still in debt, and he still did not know whether or not the child had ever existed. 18. The offender was not interviewed until 5 May 2018. When interviewed, she admitted all of what the victim had said had happened and the falsity of what she had told him, although her factual account was slightly different as to how matters had started. She said that shortly after he had sent her the original £650 in June 2016, she had discovered that she was not pregnant. However, she discovered that the victim had started a new relationship. She was hurt by this discovery, and decided not to tell him that she was not pregnant after all and to keep the money. Thereafter, she had found it easy to obtain more money from him. She had spent the money on herself, her child, her home and going out. All the money had all been spent. She was very remorseful, and wanted to find a way to pay the victim back. 19. The offender first appeared in the magistrates' court on 11 July 2019. Her guilty plea was indicated, but the question of any basis of plea would need to be resolved once a transcript of her interview was available. She was arraigned and pleaded guilty at the plea and trial preparation hearing on 12 August 2019. There was in fact no basis of plea. 20. The offender had no previous convictions. In 2013, she was cautioned for an offence of theft (from a dwelling); it arose from a dispute over money going missing from her father's house. 21. There was a pre-sentence report, dated 3 September 2019. It was clear from her comments that the offender had thought that her relationship with the victim was more serious than he had described it. She had been hurt and upset at discovering that he had started a new relationship. She had been resentful and had felt pressurised by him into terminating the previous pregnancy. The author of the report concluded that these feelings of hurt, resentment and jealousy were the main drivers behind her offending, rather than money (which she did not appear to need). As the offending snowballed following the initial lie about her ongoing pregnancy in order to maintain a hold over him, the offender said that she had looked for ways to stop what she was doing. However, the author of the report noted that there was no evidence of this. A number of opportunities to end the blackmail had presented themselves, but the blackmail had continued and the amounts demanded had increased. The offender presented as remorseful throughout her interview. 22. The pre-sentence report also set out her current domestic circumstances. She had two children, then aged 3 (almost 4) years and 14 months, with whom she lived in a housing association property. She was a full-time mother and was in receipt of Universal Credit. She was expecting a third child in December 2019. She was in contact with the father of her eldest child, and he was aware of the proceedings. She was in an on-off relationship with the father of her youngest child and her unborn child, and at the time of her interview with the Probation Service, she had not told him about the proceedings. She had no other family support; her mother had died when she was 10 years old, and she had become isolated from her father and grandparents. She was distressed about what would happen to her children, but had not made any clear provision for their care, should she be given a custodial sentence. After the interview, she informed the author of the report that the respective fathers had agreed to take custody of their children if required. The author of the report pointed out that this meant that the siblings would be separated. 23. The author of the report was very concerned about the offender's emotional wellbeing, particularly in the event of a custodial sentence. She had been prescribed antidepressants, and had shown recent signs of having self-harmed; there were marks on her arms which she tried to hide. The Community Midwifery Team had reported that her pregnancy was high-risk, and that she might not be able to carry the baby to term. 24. She did not present with any prominent pro-criminal attitudes, although the author of the report highlighted a number of features of the offending which gave cause for concern. Nevertheless, the offending appeared to be out of character and underpinned by circumstances which the author judged were unlikely to be repeated if support and interventions were put in place at sentence. There was a low likelihood of re-offending. Should the court wish to impose a non-custodial sentence, the author of the report suggested a community based disposal with a Rehabilitation Activity Requirement of up to 30 days. 25. A Victim Personal Statement was before the court, in which SC said that he was most affected by the fact that the money which had been taken could have been spent on his own son, who was now six months old, rather than on the fictional child created by the offender. All the money he had saved from working since he was 17 had gone. He had been saving to put down a deposit on a house. All such plans were now massively delayed. Aside from the financial consequences, he had suffered "a year of misery", dreading waking up in the morning to missed calls, emails and messages from the offender. It had put a real strain on him, on his partner (because of his changed behaviour and the misery caused by the random messages from strangers that she began to receive), and on their relationship. The effects lasted long after the blackmail had ended. He had had to pay off loans, and it had affected both his mental and physical wellbeing. 26. In passing sentence, the judge remarked that blackmail was rightly regarded by the public with loathing and contempt. He noted that it was not simply the financial impact of the £29,000 paid to the offender, but a year of misery and trauma caused to the victim. Against that, he noted the contents of the pre-sentence report, the absence of previous convictions, the fact that the offender was a single parent with the care of two young children and was expecting a third, her mental health issues, her remorse, and the full credit to which she was entitled for her plea of guilty. The judge continued: I have considered the sentence that would have been imposed but for the fact that you have two young children and are expecting another. The least sentence in those circumstances that can be justified, having regard to the aggravating and mitigating factors, would have been 18 months following a trial, leading to a reduction of 12 months because of your plea. Because of the fact that you are a single parent of two young children and are expecting another child, I reduce that to six months after a trial and four months on a plea, but it must be, for the reasons I have given, an immediate custodial sentence. 27. It appears that the judge had double-counted the mitigation of the offender being a single parent with two young children, expecting a third, first to reduce from a notional starting point to eighteen months, and then to make a further reduction from twelve to six months for the same reason. 28. Miss Ledward, who appears for the Solicitor General, referred to a number of cases which we will consider later in this judgment. She submitted that there were numerous aggravating features which made the offence more serious. First, the threats and demands were persistent. Second, the offending took place over a considerable period (over a year). Third, the sums obtained were substantial when compared to the resources of the victim. Fourth, the threats were based on an entirely false story which was capable of causing, and did cause, great distress: the pregnancy, the birth, illness and death of what the victim believed to be his child. Fifth, the threats also included a threat to make a false allegation of rape. Sixth, the threats caused distress not only to the victim but, if put into effect, would have caused distress to those close to him. 29. Miss Ledward's overarching submission was that the judge's starting point was significantly too low and should not have been less than four years' custody, before credit was given for mitigating factors, of which she acknowledged there were a number: first, the offender's lack of previous convictions; second, her difficult background and history of depression and anxiety; third, her remorse; fourth, full admissions in interview and the delay in bringing the matter to court between her admitting the offence in interview in May 2018 and the first appearance in court in July 2019; fifth, the fact that she was the primary carer of two young children and was expecting a third; and sixth, her guilty plea at the earliest opportunity. 30. For the offender, Mr Genney, in cogent and realistic submissions, accepted that the sentence was not only lenient, it was unduly so. However, he laid emphasis on those points of mitigation identified by the Solicitor General and on the fact that the offender had been assessed as being at a low risk of re-offending, as well as the circumstances of the offending being unlikely to be repeated. In his oral submissions, he submitted that the crime was not entirely generated by greed. The pre-sentence report referred to the relationship with the victim which had soured, that she was motivated by hurt and jealousy and could not handle the breakup. He accepted that the offender had largely preyed on the victim’s good nature and that there was discreditable conduct in the final threat to say that the victim had raped her. He submitted that it was an important consideration that she was the mother and carer of young children, aged 4 and 16 months, and that her third child was due in December. These were important sentencing considerations in light of R v Petherick [2012] EWCA Crim 2214 ; [2013] 1 Cr App R(S) 116 . Finally, he pointed out that the offender was released on home detention curfew on 7 October 2019. He argued that returning her to prison would be wholly disruptive of both her and her family life, and particularly to the lives of the children. 31. We should add that we have seen a favourable prison report from HMP New Hall; a letter from the offender; and supportive letters from her grandmother, from a friend (Emily Morill); from her partner (Steven Mattinson), who has been looking after the children and who speaks of his own difficulties and anxieties; and an email from his father (Rob Black). It is unnecessary to elaborate on most of their contents. We have taken them into account. However, we note that the burden placed on Steven Mattinson in looking after two young children has been considerable. He found it extremely hard to adjust to his new circumstances and had to change his hours of work. He has spoken to his employer who has told him that his position may be reconsidered if his hours need to be reduced again. This is a matter of materiality when we come to consider how the Reference should proceed. Preliminary 32. We start with a few general observations about the crime of blackmail and the court's approach to sentencing. The maximum sentence for the offence is a term of fourteen years' imprisonment. It has been repeatedly said in judgments of this court that blackmail is an ugly and vicious crime. In R v Hadjou (1989) 11 Cr App R(S) 30, Lord Lane CJ, giving the judgment of the court, characterised the offence in a striking phase as "an attempted murder of the soul", and one for which the courts always impose severe, deterrent sentences. Part of the reason is that the threat to disclose discreditable information, or information that the victim does not wish to be disclosed, creates "enduring fear, ever present anxiety and fear of discovery which gnaws away at him for long periods": see R v Greer and Greer [2005] EWCA Crim 2185 ; [2006] 1 Cr App R(S) 93 at [8]. However, there are no Sentencing Council guidelines for the offence of blackmail, and the reported cases are generally fact specific: see R v Ford [2015] EWCA Crim 561 ; [2015] 2 Cr App R(S) 17 at [15]. Other Reported Decisions 33. Miss Ledward referred us to a number of other cases: Attorney General's Reference No 40 of 2002 (R v Collard) [2002] EWCA Crim 2219 ; [2003] 1 Cr App R(S) 98 ; R v A [2007] EWCA Crim 245 ; [2007] 2 Cr App R(S) 93; Attorney General's Reference No 67 of 2007 (R v Graeme W) [2008] EWCA Crim 2878 ; [2008] 1 Cr App R(S) 92 ; and R v Scott M [2008] EWCA Crim 1915 ; [2009] 1 Cr App R(S) 88 . Although we have considered these cases, they are primarily examples of the different ways in which the crime of blackmail can be committed, more of which can be found in Blackstone 2020 at paragraph B5.49. They do not throw great light on the appropriate sentence in the present case. 34. There are two further cases to which Miss Ledward referred, which do bear further consideration. The first is Attorney General's Reference (R v Mincher) [2016] EWCA Crim 1528 ; [2017] 1 Cr App R(S) 12 . In that case, giving the judgment of the court, Hallett LJ, having referred to Collard and Graeme W , observed at [19] that those decisions suggested "a very approximate bracket of four to at least eight years". Second, the case reported as R v Jamie Lee Pickering [2019] EWCA Crim 936 , (which was in fact an Attorney General's Reference ), Miss Ledward described this as a case where a suspended sentence was found to be unduly lenient and an immediate custodial sentence of three years' imprisonment was imposed. That is an accurate description as far as it goes. But the blackmail was associated with two serious sexual assaults and the court at [40] noted that "even if matters had ended after the second sexual assault, a sentence of immediate imprisonment would undoubtedly have been necessary". Factors Material to the Sentencing Approach in the Present Case 35. We set out these factors as follows: (1) The relationship between the amount of money demanded and the means available to the victim to pay it: see Ford (above) at [17]. Here the offender obtained substantial sums by her crime (over £29,000) and exhausted the means of her victim, who lost his entire life savings. (2) The psychological harm done and intended to be done: see Ford at [17]. In the present case, the offender intended to exert the maximum pressure on the victim: the false stories, her pregnancy, the birth, illness and death of what he believed to be his child caused distress and were intended to do so. The menaces (to use the language of the statute) culminated in the threat to make a false allegation of rape. In addition, the harm caused by her offending went beyond its effect on SC. (3) The time over which the blackmail takes place and the persistence of the demand. If the blackmail takes place over a significant period of time, it is likely to be regarded as more serious than the offence committed on a single occasion, although a single demand with menaces may attract a lengthy sentence, depending on the circumstances: a four year starting point in R v Murphy [2019] EWCA Crim 438 ; [2019] 2 Cr App R(S) 13, at [12] and [13]. Here the offending took place over a period of more than a year and was persistent. 36. To be weighed against these considerations in the balance was the mitigation: (1) The offender's lack of previous convictions. (2) Her history of depression and anxiety. (3) What is accepted to be her genuine remorse (although her motivation was plainly greed), reflected in the full admissions in interview in May 2018. (4) The delay in bringing the matter to court. The investigation began in November 2017. She made full admissions to the police in May 2018; and her first appearance in court was in July 2019. There is no explanation for this wholly unacceptable delay. (5) The fact that she was the primary carer of two young children and is expecting a third. (6) Her guilty plea at the first opportunity. Sentencing Primary Carers 37. In Petherick (above), giving the judgment of the court, Hughes LJ (as he then was) set out at [15] to [25] general guidance on the proper approach to sentencing offenders who are the sole carers of dependent children. Where a sentence lies on the cusp of custody, the balance is likely to be a fine one, and the interference with family life can sometimes tip the scales and mean that a custodial sentence, otherwise proportionate, may become disproportionate and therefore inappropriate: see [22]. However, the likelihood of interference with family life inherent in a sentence of immediate imprisonment being disproportionate is progressively reduced the graver the offence: see [23]. Where custody cannot be avoided, the effect on children may or may not afford grounds for mitigating the length of sentence. "There can be no standard or normative adjustment or conventional reduction by way of percentage or otherwise. It is a factor which is infinitely variable in nature and must be trusted to the judgment of experienced judges": see [24]. " Double Jeopardy " 38. This is a consideration which may be material when the court is considering questions of undue leniency and the possibility of returning an offender to custody. 39. In Attorney General's Reference Nos 14 and 15 of 2006 (R v French and Webster) [2006] EWCA Crim 1335 ; [2007] 1 Cr App R(S) 40 , this court gave guidance on what is referred to as "double jeopardy" in the judgment of the court given by Lord Phillips of Worth Matravers CJ at [59] and following: 59. … In this jurisdiction the practice of giving a discount from what would otherwise be the appropriate sentence to reflect double jeopardy is well established where this court increases a sentence on a reference by the Attorney General. The range of discount is wide, generally lying between 12% and 30%. 60. Having regard to double jeopardy is but one aspect of the task of this court when considering, in the exercise of its discretion, whether and how to intervene where an unduly lenient sentence has been imposed. Where a defendant has had no responsibility for the fact that he has been given a sentence which is unduly lenient, we consider that it accords with justice that, when substituting a weightier sentence, this court should have some regard to the distress and anxiety experienced by the defendant as a consequence of having his sentence re-opened and increased. The degree of distress and anxiety and thus the size of the discount will depend on the facts of the particular case. 61. The distress and anxiety is likely to be particularly great where the decision of this court results in a defendant being placed in prison where originally no custodial sentence was employed, where a custodial sentence has been completed, where the defendant is young and immature or where the defendant was about to be discharged from prison. In all of these cases the distress and anxiety caused by the double jeopardy is likely to be significant when weighed against the original offending. The authorities show that in such circumstances discounts for double jeopardy tend to be granted that are near the upper end of the range. 40. In Attorney General's Reference No 45 of 2014 (R v Afzal and Malik) [2014] EWCA Crim 1566 at [19], this court considered the practice of not always referring to the "double jeopardy" principle in cases where a sentence was increased on the application of the Attorney General. In giving the judgment of the court, Lord Thomas of Cmwgiedd CJ said this: 19. … It reflects changes that have occurred in our sentencing regime, including: (1) As a result of the work of the Sentencing Guidelines Council and of the Sentencing Council, there is much greater clarity and uniformity in relation to sentencing for most offences. The starting points and ranges are set out in clear, comprehensive guidelines. (2) Where a judge has departed from those guidelines without explanation or good reason, it should be readily apparent to the advocate advising an offender that the sentence might be referred to this court. Advocates no doubt advise of that risk. (3) Rapid consideration is given to any sentence by the Attorney General so that it is quickly referred to this court. (4) This court is more conscious of the position of victims than it was in 2006. 41. So far as this offender is concerned, there are no applicable guidelines for the offence. The offender had no responsibility for the sentence she received. The offender has served the custodial part of her sentence. The court must, therefore, have regard to the distress and anxiety of the offender as a result of having her sentence re-opened and increased. The amount of the discount depends on the facts, but has been historically within the range identified in French and Webster . Conclusion 42. Keeping these matters in mind, we have reached the following conclusions. The sentencing judge's starting point of eighteen months' imprisonment for this offence was significantly too low; and the ultimate sentence of four months' imprisonment was unduly lenient. The offending, with the serious features we have identified, called for a starting point of the order of five years' imprisonment. In view of the mitigating factors: the offender's lack of previous convictions; her mental state and background; her genuine remorse, which we accept went beyond the plea of guilty; and the unaccountable, or at least unexplained, delay in bringing the matters before the court after she admitted her crime, called for a reduction in sentence to a term of four years' imprisonment; and, with full credit for the guilty plea, a term of two years and eight months' imprisonment should have been imposed. 43. The question then becomes that identified by the court in French and Webster : to what extent should the court take into account that the offender has now been released from custody and the application of the principle of "double jeopardy": the distress and anxiety of being returned to prison, having been released, and the extent to which this calls for a further adjustment. 44. We also bear in mind that it is important not to lose sight of the impact on the victim, and that there has been no delay in referring the matter to this court by the Solicitor-General. Nevertheless, it is clear from what has been said by the offender that her stress and anxiety about the Reference and the position in which she finds herself is very real. In our view, it justifies reducing the term by 25 per cent to a term of 24 months' imprisonment. 45. It is at this point that two further factors fall to be considered: first, that she is the primary carer of her children; and second, the effect of the definitive guidelines on the imposition of community and custodial sentences. The two factors are interlinked. So far as factors indicating that it would not be appropriate to suspend the sentence, the offender presents no risk or danger to the public; nor has she any history of poor compliance with court orders. However, as we have made clear, appropriate punishment for this crime can only be achieved by immediate custody. 46. We turn to factors indicating that it would be appropriate to suspend the custodial sentence: there is a realistic prospect of rehabilitation; there is the strong personal mitigation to which we have referred; and immediate custody would have a direct impact on others (her children). 47. Weighing these matters together, we have concluded that it would be appropriate in this case to suspend the sentence of 24 months' imprisonment, which we intend to substitute for the term of four months' imprisonment. In addition, we will impose a Rehabilitation Activity Requirement of up to 20 days within the period of two years of the suspended sentence. 48. We should add, if it is not already apparent, that this case turns on its own very unusual facts and should give no comfort to the generality of blackmailers who come before the court to be sentenced. 49. We would normally expect that counsel who appeared for the defendant at trial in a case that is referred to this court to be here in order to represent the client. We do, however, understand the reason why trial counsel was not here.

2019_10_31-4751.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1931/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1931

284df4ef7980ecbf03dcd58f9dfca8f846149fb5bc1aeb3f5537716bf7ab7026

[2005] EWCA Crim 3429

EWCA_Crim_3429

crown_court

No: 200504875/A1 Neutral Citation Number: [2005] EWCA Crim 3429 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 25th November 2005 B E F O R E: MR JUSTICE GRAY MRS JUSTICE DOBBS DBE - - - - - - - R E G I N A -v- ANDREW STEPHAN - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - -

No: 200504875/A1 Neutral Citation Number: [2005] EWCA Crim 3429 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 25th November 2005 B E F O R E: MR JUSTICE GRAY MRS JUSTICE DOBBS DBE - - - - - - - R E G I N A -v- ANDREW STEPHAN - - - - - - - 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 L SELLICK appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MRS JUSTICE DOBBS: On 18th July 2005 at the Truro Crown Court, this appellant pleaded guilty to ten counts of theft and was sentenced to 150 hours community punishment on each to run concurrently and made the subject of an Anti-social Behaviour order for 7 years. He was ordered to pay £1,000 towards the costs of the prosecution. The terms of the order were as follows: the appellant was forbidden from landing on or entering the Isles of Scilly; (ii) entering the curtilage of any dwelling house within the United Kingdom unless so invited in writing or verbally by a person authorised to give consent at that time. He appeals against sentence by leave of the Single Judge. 2. The facts are these. Prior to 2004 the appellant lived on the Isles of Scilly with his wife who ran a bed and breakfast. The appellant assisted. He lived in a bungalow. The bed and breakfast accommodation was in a loft conversion. The appellant had completed the loft conversion himself in 1999 and during the course of that had built a number of access hatches into the eaves so access could be gained to storage and the pipe work. 3. On 10th January 2004, after the appellant had separated from his wife, her new partner had a problem with the plumbing and went into the converted loft area. He removed some flooring to see if he could find the cause of the problem. He found items of women underwear, vibrators, some pornographic magazines and photographs of various friends of the appellant's wife. 4. Mrs Stephan looked at the photographs and recognised her friends. The police were then contacted. 5. Mrs Stephan's partner found other items of women's underwear, videos, personal photographs and more vibrators over the next week and these were handed over to the police. A number of ladies on the island heard about the discovery and they had to go to the police station to identity their own very personal items and the photographs. 6. The appellant was subsequently arrested. When interviewed he admitted stealing items of underwear from washing lines and using them as a sexual aid to masturbate. He said he was trying to get help and that he was deeply ashamed of his actions. 7. The appellant was born on 10th April 1963, making him 42 years of age. He was a man of previous good character. The pre-sentence report recommended a community penalty. It said because of his good character there was a low risk of re-offending, but concern was expressed due to the nature of his offending because his motivation and thinking underpinning the offending was not understood. He seemed unaware of the impact of his offending and he believed that the offences had been blown out of all proportion. This was not helpful to his understanding of the victims' issues. 8. In sentencing, the judge noted that these offences had taken place over a 4 to 5 year period, which is what made them serious. They were offences which would be particularly upsetting to those who owned the various items he had stolen. In some instances they must have been committed in breach of specific trust vested in him by the people who were prepared to admit him in his home. They were committed in breach of general trust in the Isles of Scilly, since it was a community where people did not have to lock their doors because they trusted everyone to behave in an honourable and decent way. He had eventually pleaded guilty, so would receive some credit for that, as it meant the complainants did not have to come to court to give evidence for a second time. He was a hard working man of good character and had been a considerate father to his elder child. 9. The first order that was flowers from his conviction was the anti-social behaviour order which would contain the conditions which we have already alluded to. The judge recognised the effect on this appellant of such an order would be considerable punishment. 10. The original grounds of appeal are that in the circumstances of the case the order banning the appellant from the Isles of Scilly for 7 years was too long. 11. Leave was granted by the Single Judge, on the basis that (a) the Full Court should consider, whether in the light of R v Boness [2005] EWCA Crim 2395 an order should have been made against a man with the appellant's good character and (b) if appropriate, whether it is too wide and too long. Counsel for the appellant now adopts those grounds. He argues today before us that it was not necessary to impose such an order in this case, due to the appellant's age and his hitherto good character, saying that the deterrent factor of any further thefts of underwear in such a small community, inevitably leading to his arrest was sufficient. Relying further on Boness , he submits that the order had been imposed by way of punishment, when clearly on the authorities it is not to be used in that way. The purpose of the order, it was said, was to prevent the appellant from committing further thefts in the Isles of Scilly and anywhere else in the United Kingdom. Given that this is the only behaviour complained of and the maximum sentence for theft is 7 years, then it is difficult to see what further deterrent an ASBO can have over and above the theft. 12. We do not accept all the submissions made in the light of the particular facts of this case. In our view, the making of an order was right in principle. We will come to the question of detail later. 13. We deal with the facts, set against the principles one has to have in mind for the making of such an order, those principles being derived from the many authorities which now exist on the subject. First of all, there is clear evidence that the appellant acted in an anti-social way. Secondly, that his course of conduct had, without doubt, caused alarm and distress to those women in that small community. Thirdly, given the appellant had not clearly not yet fully got to the root of his behaviour, the imposition of the ASBO was necessary for the protection of those persons from any further anti-social behaviour on his part. The underlying cause for the behaviour of that kind, without some kind of intervention, is not necessarily deterred by the fact of detection and prosecution, nor does the question of good character assist this aspect. 14. We note in the pre-sentence report that the appellant is unable to accept the possible motivation for these offences, nor understand the impact of his offending on the victims. Rather, he has sought to minimise and justify his actions and indicates that he thinks things have been blown out of all proportion. Whilst his motivation and thinking underpinning his behaviour is little understood, there continues to be concern about his re-offending. Moreover, the behaviour to be prevented is not only theft of woman's intimate clothing or possessions but also inappropriate behaviour towards women not necessarily amounting to an offence. It is to be noted that the appellant himself admitted to the probation officer that, in relation to one of the victims, he found her to be a sympathetic listener when he shared with her some of his marital problems he was experiencing. He conceded that the underwear might have been taken to bring him closer to her. The order also has the added benefit of protecting those women in the Isles of Scilly from the distress and alarm of seeing the appellant and re-living the effect of his anti-social behaviour, namely the deep embarrassment and invasion of privacy that each woman must have felt. The aim of the order therefore is not simply a matter of preventing the commission of a particular criminal offence. 15. The real questions, in our judgment therefore, are the questions of the scope and lengths of the orders. Orders of this kind have to be proportionate, that is commensurate to the risk to be guarded against. The appellant was given a community punishment order rather than a community rehabilitation order. Thus there has been no mandatory treatment or therapy programme that he has been subjected to. Time must be given therefore to allow the appellant to address and manage his problem, whilst at the same time protecting certain members of the public from him. 16. In relation to scope, we remind ourselves of the observations made by Hooper LJ in the case of Boness at paragraph 47 in which he refers to the question of policing. This is pertinent to the second half of the order which restricts entry to any curtilage of any dwelling-house in the United Kingdom without permission. The scope of this clause is very wide. It is impracticable to police. There is not the added concern of the women in that small community on the Isles of Scilly to consider. It seems to us therefore that the scope of the second clause is too wide and should be deleted. 17. We turn to the question of length. The appellant still has family on the island. Access to his children is restricted in any event in the light of his separation from his wife. It seems that access now takes place on the mainland, where the appellant works. In our judgment, the period of 7 years was too long. The judge spoke of the effect of it as being punishment which it should not be. 18. Doing the best we can, we think an appropriate period of restraint would be one of 2 years. That is, bearing in mind the fact that this appellant has already been off the island for a period approaching 2 years in any event. 19. The second clause in the order will be deleted and the period of restraint from landing or entering the Isles of Scilly will be reduced to one of 2 years. To that extent, this appeal is allowed.

2005_11_25-647.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3429/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3429

6e9b7e0f29b09e697c2a6954033ea3c7f80aa651a008a3424eade31ad959510b

[2022] EWCA Crim 846

EWCA_Crim_846

crown_court

Neutral Citation Number: [2022] EWCA Crim 846 Case Nos: 202102982 B4 202102950 B4 202103172 B4 202103127 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) on appeal from THE CROWN COURT AT LEICESTER His Honour Judge Brown Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/06/2022 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE LAVENDER HER HONOUR JUDGE NORTON (sitting as a judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - a

Neutral Citation Number: [2022] EWCA Crim 846 Case Nos: 202102982 B4 202102950 B4 202103172 B4 202103127 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) on appeal from THE CROWN COURT AT LEICESTER His Honour Judge Brown Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/06/2022 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE LAVENDER HER HONOUR JUDGE NORTON (sitting as a judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Mark Thone Baljit Kandola Adam Dooley Marc Unsted Appellants Applicants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - David Watts for Mark Thone Matthew Anthony Hodgetts for Baljit Kandola Osman Osman for Adam Dooley Ian McLoughlin for Marc Unsted Miranda Moore QC for the CPS Hearing date: 28 April 2022 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Mr Justice Lavender: (1) Introduction 1. Mark Thone appeals with leave granted by the single judge against the total sentence of 10 years and 6 months’ imprisonment imposed on him by HHJ Brown in the Crown Court at Leicester on 8 September 2021. Baljit Kandola appeals with partial leave granted by the single judge against the sentence of 2 years and 6 months’ imprisonment imposed on him by the same judge in the same court on 9 September 2021. Mark Unsted and Adam Dooley renew their applications for leave to appeal against the total sentence of 20 years’ imprisonment imposed on each of them by the same judge in the same court on 7 September 2021. 2. At the conclusion of the hearing on 28 April 2021 we announced our decision, for which we now give our reasons: (1) We allowed Mr Thone’s appeal to the extent that we quashed the sentence of 10 years and 6 months’ imprisonment imposed on one count of conspiracy to supply a controlled drug of class B and substituted a sentence of 9 years’ imprisonment, concurrent with two other sentences of the same length, so that his total sentence was reduced to 9 years’ imprisonment. (2) We allowed Mr Kandola’s appeal to the extent that we quashed his sentence of 2 years and 6 months’ imprisonment and substituted a sentence of 20 months’ imprisonment. (3) We refused the applications made by Mr Unsted and Mr Dooley. (2) Background 3. In 2017 and 2018 two police operations, Operation Nebule and Operation Buster, uncovered a number of drugs offences. Operation Buster focused on the importation and supply of drugs. Ardeep Takhar led the organised crime group which arranged for the importation of very large quantities of cocaine and class B drugs and their supply on a wholesale basis. The nature of this activity is described in this court’s judgment in R v Takhar [2020] EWCA Crim 549 . 4. Mr Unsted, Mr Dooley and others, including David Moth, were involved in the “downstream” supply in and around Nottinghamshire of drugs supplied by Mr Takhar’s group. In addition, Mr Thone manufactured amphetamines for them. Mr Kandola’s involvement was limited to one day, 24 October 2017. 5. As part of Operation Nebule, a probe was placed in Mr Moth’s car and between 29 September and 25 October 2017 recordings were made of various conversations which were later relied on in evidence. Meanwhile, on 13 October 2017 Mr Thone’s home was searched and 111 kg of amphetamine were found. Then on 24 October 2017 Mr Kandola travelled from London to Derby with another defendant, Furhan Mahmood, to buy a quantity of drugs from another defendant, Claire Smallman, which he took back to London by taxi. We have seen photographs of the exchange which took place. 6. On 8 December 2017 Mr Moth, Mr Thone and 5 others appeared before the Nottingham Magistrates’ Court and were sent for trial to the Crown Court at Nottingham. The Better Case Management form records that Mr Thone indicated an intention to plead not guilty to the charge of conspiracy to supply amphetamine. 7. On the indictment (“the Nebule indictment”) Mr Thone faced two counts: conspiracy to produce amphetamine between 1 March and 8 December 2017 and (count 1) and conspiracy to supply a controlled drug of class B during the same period (count 2). He pleaded guilty to those two counts in the Crown Court at Nottingham on 23 January 2018. Count 2 was subsequently amended to specify that the controlled drug referred to was amphetamine. 8. Mr Moth originally pleaded not guilty to counts 1 and 2 on the Nebule indictment, but on 23 January 2018 he pleaded guilty to counts 3 and 4, which alleged possession of cannabis on 28 November 2017 and 7 December 2017. On 13 March 2019 he changed his plea on counts 1 and 2 to guilty. 9. Meanwhile, pursuant to Operation Buster, on various dates between 21 January and 21 February 2019, Mr Unsted, Mr Dooley, Mr Kandola, Mr Moth and others were sent for trial to the Crown Court at Leicester. The principal counts on the indictment (“the Buster indictment”) against Mr Unsted, Mr Dooley and Mr Moth alleged: conspiracy to supply cocaine between 1 January 2017 and 15 December 2017 (count 5); and conspiracy to supply controlled drugs of class B during the same period (count 6). Mr Kandola was only charged on count 6. The drugs to which count 6 related were not identified in the indictment, but at trial it was alleged that they included amphetamine, ketamine and cannabis. Mr Moth pleaded guilty to counts 5 and 6 on 5 March 2019. Then on 29 March 2019 the Nebule case was transferred to the Crown Court at Leicester so that the two cases could be managed together. 10. Between September and December 2019 Mr Takhar and the other defendants involved in the importation of drugs were tried. Following their conviction, they were sentenced on 17 December 2019. The sentences imposed on Mr Takhar and another were subsequently increased by this court, for the reasons set out in the judgment which we have cited. Mr Takhar’s sentence was increased to 29 years’ imprisonment. 11. A trial of Mr Unsted, Mr Dooley and others began in January 2020, but could not be completed because of the pandemic and the first lockdown. During the trial, Mr Unsted and Mr Dooley admitted to dealing in steroids. Counts were added to the Buster indictment and on 23 November 2020: (1) Mr Dooley pleaded guilty to three counts relating to steroids, each of which covered the period from 1 January 2013 and 29 January 2019: (a) conspiracy to fraudulently evade the prohibition on the importation of goods (count 7); (b) conspiracy to produce a controlled drug of class C (count 8); and (c) conspiracy to supply a controlled drug of class C (count 9); and (2) Mr Unsted pleaded guilty to count 9 and to two more counts: (a) conspiracy to supply a controlled drug of class C, i.e. steroids (count 10); and (b) offering to supply a controlled drug of class B, i.e. cannabis (count 11). 12. The trial of the appellants, the applicants and others began on 5 January 2021 before HHJ Brown. The Buster indictment had been amended so as to add Mr Thone as a defendant to counts 5 and 6. Mr Thone contended that, as against him, count 6 was an abuse of the process of the court, since it merely duplicated count 2 on the Nebule indictment, to which he had already pleaded guilty. He applied for the dismissal of count 6. 13. There was a hearing on 5 January 2021 to consider this application. The principal response by the prosecution was that count 2 on the Nebule indictment only concerned amphetamine, whereas count 6 on the Buster indictment concerned five class B drugs. Subsidiary points were that there were differences in the indictment periods and in the named conspirators. In dismissing the application, HHJ Brown said as follows: “I am satisfied that there are sufficient differences between the two counts as set out by me to justify each count being prosecuted against Mark Thone. I accept Mr Watts' point that if Thone is convicted on the Buster indictment, it would be important for the sentencing judge to have regard to any overlap between the two counts and to take care when sentencing, to ensure that there is no double jeopardy and no double sentencing of Mark Thone. I anticipate that I will be the sentencing judge for Mark Thone and if I am not, whoever is the sentencing judge should sentence him for all matters and thereby the judge sentencing can ensure that any sentence which he receives reflects his true criminality, by maintaining an overview of both sets of offences, if he is convicted on either count on the Buster indictment.” 14. On the same day, 5 January 2021, Mr Thone pleaded guilty to count 6 on the Buster indictment. Then, on the following day, 6 January 2021, Mr Kandola pleaded guilty to count 6. He produced a written basis of plea, in which he contended that on 24 October 2017 he had collected only 900g of cannabis from a woman in Derby. That basis was not agreed by the prosecution. 15. On 11 March 2021 Mr Mahmood pleaded guilty to count 6. Like Mr Kandola, his involvement in the conspiracy was limited to the occasion on 24 October 2017 when drugs were collected from Derby. Mr Mahmood pleaded guilty on the basis that on 24 October 2017 he drove Mr Kandola from London to Derby to collect a consignment of drugs, Mr Kandola purchased multiple kilograms of hexedrone, but Mr Mahmood was not present for the handover. HHJ Brown subsequently sentenced Mr Mahmood on that basis. 16. At the conclusion of the trial: (1) Mr Unsted, Mr Dooley and others were found guilty on counts 5 and 6. (2) Mr Thone was found not guilty on count 5. (3) The Sentences 17. The sentencing hearings took place over several days. (3)(a) 7 September 2021: Mr Unsted and Mr Dooley 18. Mr Unsted, Mr Dooley, Mr Moth and another defendant, Sukjinder Sandhu, were sentenced on 7 September 2021. The judge said that these four defendants were the main conspirators in the case which he had tried. He said that all of them had drivers, couriers and warehouse staff who worked for them and others who manufactured drugs, such as amphetamine. They described themselves as “the consortium” and they operated like the board of directors in a company, each playing a full and active role as a leading figure in the conspiracy. That was how the prosecution had put their case at trial and, although the defendants did not accept that description of them, the judge was satisfied, having heard the trial, that it was an accurate description of them. On that basis, the judge assessed that each of them played a leading role. Moreover, the judge found that the conspiracy involved at least 20 kg of cocaine and over 100 kg of amphetamine. 19. For count 5, the offence-specific sentencing guideline stated that the starting point for a defendant who had played a leading role in a category 1 offence was 14 years’ imprisonment, with a range from 12 to 16 years, but that was based on an indicative quantity of 5 kg of cocaine. The judge considered that the following sentence in the guideline applied in the present case: “Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the offender’s role.” 20. In sentencing Mr Moth, the judge observed that there was a very large measure of overlap between the counts on the Nebule indictment and counts 5 and 6 on the Buster indictment. He accepted a submission that he should give more than 25% credit for Mr Moth’s guilty pleas. 21. When sentenced: (1) Mr Unsted was 42. Although he had been convicted of 9 offences committed between 2000 and 2015, he had no relevant previous convictions. (2) Mr Dooley was also 42. He had been convicted of 4 offences committed between 1997 and 2018, but he had no relevant previous convictions. (3) Mr Moth was 47. He had been convicted of 44 offences committed between 1995 and 2017, including offences of possessing cocaine and amphetamine with intent to supply in 2011. He also accepted that he had been supplying drugs for over 20 years. 22. Mr Unsted was given concurrent sentences of: (1) 20 years’ imprisonment on count 5; (2) 12 years’ imprisonment on count 6; (3) 4 years and 6 months’ imprisonment on each of counts 9 and 10; and (4) 3 years’ imprisonment on count 11. 23. Mr Dooley was given concurrent sentences of: (1) 20 years’ imprisonment on count 5; (2) 12 years’ imprisonment on count 6; and (3) 4 years and 6 months’ imprisonment on each of counts 7, 8 and 9. 24. Mr Moth was given concurrent sentences of: (1) 14 years’ imprisonment on count 5, which the judge said would have been 20 years but for his guilty plea; (2) 9 years’ imprisonment on count 6, which the judge said would have been 12 years but for his guilty plea; and (3) 8 years’ imprisonment on each of counts 1 and 2 on the Nebule indictment. 25. The judge imposed no separate penalty on counts 3 and 4 on the Nebule indictment. (3)(b) 8 September 2021: Mr Thone 26. Mr Thone and three other defendants were sentenced on 8 September 2021. In relation to Mr Thone, paragraph 138 of the prosecution’s opening note for sentence stated as follows: “To be sentenced for: a. Operation Nebule: i. Count 1 - Conspiracy to produce Amphetamine ii. Count 2 - Conspiracy to produce Amphetamine b. Operation Buster: i. Count 6 - Conspiracy to supply Amphetamine” 27. The note went on to identify references in conversations between Mr Thone and Mr Moth to drugs other than amphetamine, namely cannabis, ketamine and MCAT (i.e. mephedrone). However, in describing Mr Thone’s role in the conspiracy, which the judge found to be significant, the judge only referred to his involvement with amphetamine. 28. The starting point in the relevant guideline for a defendant who played a significant role in a category 1 offence was 5 years and 6 months’ imprisonment, with a range from 5 to 7 years. However, that was based on an indicative quantity of 20 kg of amphetamine, whereas Mr Thone was in possessive of over five times that amount. The judge said as follows in the sentencing hearing: “I have formed – and if it helps you I will tell you what my provisional view is, subject of course to further submissions which you are welcome to make – I have formed the view that because of the quantity of drugs here, he is outside the guidelines for class B. Outside the upper range, I mean. But not by much, but he is. 29. Moreover, Mr Thone’s previous convictions constituted a substantial aggravating factor. When sentenced, he was 57 and he had been convicted of 11 drugs offences and one firearms offence. His previous offences included: (1) supplying cannabis in 2003-4 and producing a class C drug in 2004; (2) producing a class C drug, possessing cannabis with intent to supply and possessing a shortened shotgun in 2006 and/or 2007; and (3) supplying amphetamine and possessing amphetamine with intent to supply in 2015. 30. A total sentence of 3 years’ imprisonment had been imposed for these last offences and Mr Thone was on licence when he committed the current offences. 31. In the course of the sentencing hearing, the judge said as follows: “Although the counts do not deal with identical conspiracies, we had this matter considered when you made a submission to me that count 6 was effectively an abuse of process because it was covered by counts 1 and 2 on Nebule and I rejected your submission. Nonetheless for that, there is a considerable degree of overlap and I am going to make the sentences concurrent between Buster and Nebule.” 32. Then in his sentencing remarks the judge said as follows: “Count 1 on Nebule is conspiracy to produce amphetamine. Count 2 on Nebule is conspiracy to supply amphetamine. Count 6 on Buster is conspiracy to supply amphetamine. Whilst the two indictments do not cover the same facts – they would be duplicitous if they did – I am nonetheless going to take the decision to make the sentences concurrent between the two indictments.” 33. The judge imposed concurrent sentences on each of the three counts. In each case, he said that the sentence would have been 12 years’ imprisonment, but for Mr Thone’s guilty pleas. On counts 1 and 2 on the Nebule indictment he reduced that by one quarter to 9 years, but on count 6 on the Buster indictment he said that he would reduce it by only one tenth, because Mr Thone had only pleaded guilty at the start of his trial. In fact, the judge reduced the sentence to 10 years and 6 months’ imprisonment, which was a reduction of one eighth. (3)(c) 9 September 2021: Mr Kandola 34. Mr Kandola was sentenced on 9 September 2021. The judge was invited to recuse himself, because he was the judge who had sentenced Mr Mahmood on a different basis to that advanced by Mr Kandola. The judge declined to recuse himself. 35. There was then a Newton hearing. A number of facts were agreed for the purposes of the Newton hearing. In particular, it was agreed that there was an exchange of bags between Mr Kandola and Ms Smallman at a location in Derby on the evening of 24 October 2017: (1) Ms Smallman gave Mr Kandola an orange bag which was agreed to be “similar to a bag for life or similar in size”. (2) Mr Kandola gave Ms Smallman a light-coloured bag. (3) Ms Smallman gave Mr Kandola what was agreed to be “a large black sports holdall approximately 2.5 foot long and 1 foot square in cross-section.” 36. Mr Kandola gave evidence, saying, as he had said in his basis of plea, that he only collected 1 kg of cannabis from Ms Smallman. The judge rejected that evidence, saying as follows: “I have seen pictures of the vacuum wrapped cannabis in kilogram blocks, and it is clear to me that bag contains more than a kilogram. I can see for myself the bag is a full bag, it is a shopping bag size and it is, frankly, the size of a small suitcase. Mr Hodgetts makes the point, with force, and I take his point, “Well, you just cannot be sure what is in that bag.” He says, “You cannot be sure if it is hexedrone or just cannabis and, if it is just cannabis, how much is in there.” I cannot speculate, but I can draw inferences, and the inference I draw is that this man has come out of London to collect a substantial quantity of drugs. I am satisfied that he is a multi-kilo dealer. I am satisfied that he goes into category 2. I am satisfied that he is downplaying his role to minimise his involvement, no doubt with an eye to [ the ] sentence that will follow. Now, as I approach this analysis, I do so mindful of the fact that it is for the prosecution to prove the basis of plea as they allege it, not for this man to prove his version. It is for them to prove it to the criminal standard and the burden is on them, and the doubt, where there is any, resolves in Mr Kandola’s favour. I reminded myself of all that, but I conclude, as I have said, he was dealing with a man who was in receipt of very substantial quantities of high purity import drugs: Sandhu. Having said that – and this is my finding – although I cannot put a number on it, and I do not, it is multi-kilo and it is category 2.” 37. Category 2 in the relevant sentencing guideline was based on an indicative quantity of 40 kg of cannabis, whereas category 3 was based on an indicative quantity of 6 kg. It was submitted to the judge that the bags given to Mr Kandola could not have contained 40 kg of cannabis, nor anything like that amount. The judge referred to this submission in his sentencing remarks. 38. When sentenced, Mr Kandola was 44. He had been convicted in 1998 of two offences of supplying and possessing amphetamine. A pre-sentence report assessed him as a low risk of re-offending. 39. When sentencing Mr Kandola, the judge said as follows: “You are a category 2. You’re a significant role. I take on board this point about 40 kilograms of cannabis. You are below that four year starting point. I am going to say the sentence for you is three years after a trial. I am going to reduce that to thirty months to reflect your plea of guilty and, also, to reflect, as I must in the sentence, the fact that I have read these references. I can see that there is another side to you, and I can see that you have lots of issues in your life, that are not of your own making, which you have been struggling with and which you are, hopefully, coming through now, but the sentence is thirty months with immediate effect.” (4) The Renewed Applications 40. It is convenient to begin by considering the applications made by Mr Unsted and Mr Dooley. In doing so, we recall the guidance given in this court in paragraphs 32 to 35 of its judgment in R v Khan [2014] 1 Cr. App. R. (S.) 10, which is relevant to both the applications and the appeals: “32. Many conspiracies will involve multiple supply transactions. In those circumstances the judge would be entitled to look at the aggregate quantity of the drug involved. 33. Of course involvement in a conspiracy may vary for individual offenders within it. One core variant is culpability, which is demonstrated in the guideline by the role of the offender, and which is to be assessed by the non-exhaustive indicative factors set out in the guideline. That will enable the judge to assess the level of involvement of an individual within a conspiracy. 34. However, 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 only 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.” 41. Counsel for Mr Unsted and Mr Dooley each submitted that the judge was wrong to find that they played a leading role in the conspiracy and that the judge should have sentenced them on the basis that their involvement in the conspiracy was limited in duration and extent. 42. For Mr Unsted, Mr McLoughlin submitted that there was no evidence that he was involved in the conspiracy before the end of September 2017, that there was no evidence of any drugs in his possession, that he was only linked to one supply of drugs, where the amount involved was 1 kg, that, although he had an Encrochat telephone, there was no evidence that it was used in connection with this conspiracy, that his lavish lifestyle was funded by his dealing in steroids, rather than class A or B drugs, and that the judge was wrong to find that he was a member of the consortium, that he played a leading role in the conspiracy and that he was involved in the supply of 20 kg of cocaine. 43. For Mr Dooley, Mr Osman submitted that he only became involved in the conspiracy in around April 2017, that there was no evidence of him collecting or delivering class A or B drugs, that his involvement in the conspiracy ended in October 2017 and that the judge was wrong to find that his role in the conspiracy was a leading one, rather than between leading and significant, and that he was involved on the supply of 20 kg of cocaine. Mr Osman also submitted that it was unfair for the judge to give Mr Dooley the same sentence on count 5 as, before the reduction for his guilty plea, he gave to Mr Moth, given Mr Moth’s long history of drug dealing and his previous convictions. 44. An appellant who seeks to challenge factual assessments made by a judge who has heard all of the evidence at a trial faces a high hurdle. For instance, the judge in this case had heard all of the recordings of Mr Moth’s conversations in his car, including any conversations with the applicants and any conversations in which they were mentioned, and had been able to consider the significance of those recordings in the context of the whole of the evidence in the case. Having considered all of the submissions made on behalf of the applicants, we are not persuaded that it is arguable that the judge was wrong his assessment of their role in this conspiracy. 45. As for the comparison with Mr Moth, it may be that Mr Moth was fortunate not to receive a longer sentence, but that does not give either of these applicants a ground of appeal. A disparity in the sentences imposed on co-defendants will only give rise to a ground of appeal if right-thinking members of the public would consider that something had gone wrong with the administration of justice: see R v Fawcett [1973] 5 Cr. App. R. (S.) 158. Apparent leniency to one offender is no ground for reducing a proper sentence imposed on another: see R v Wilson [2018] 1 Cr. App. R. (S.) 25. (5) Mr Thone’s Appeal 46. What we have just said is sufficient to dispose of Mr Thone’s grounds of appeal insofar it was contended on his behalf that 12 years’ imprisonment before reduction for guilty plea was manifestly excessive in his case. At the hearing, Mr Watts quite properly accepted that, viewed in isolation, 12 years’ imprisonment before reduction for guilty plea was not manifestly excessive in Mr Thone’s case, but he submitted that there should have been a distinction between Mr Thone’s sentence on count 6 and the sentence which the judge said that Mr Moth would have received on count 6 if he had not pleaded guilty. However, even if we assume that Mr Moth’s sentence was lenient, that does not give Mr Thone a ground of appeal. (For what it is worth, we also note that the judge said that he would give Mr Moth full credit for his guilty pleas. On that basis, the sentence of 9 years’ imprisonment which the judge imposed on Mr Moth on count 6 was equivalent to 13 years and 6 months before the reduction for Mr Moth’s guilty plea.) 47. Mr Thone’s second ground of appeal concerned the reductions in his sentences by reason of his guilty pleas. There were two aspects to this ground. First, it was submitted that Mr Thone’s sentences on counts 1 and 2 on the Nebule indictment should have been reduced by one third, rather than one quarter, because Mr Thone made full admissions to the police when interviewed. What matters, however, is whether Mr Thone indicated an intention to plead guilty at the first hearing, i.e. the hearing in the magistrates’ court on 8 December 2017. Paragraph D1 of the guideline on Reduction in Sentence for a Guilty Plea states as follows: “Where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should be made (subject to the exceptions in section F). The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court.” 48. Paragraph D2 then states as follows: “After the first stage of the proceedings the maximum level of reduction is one-quarter (subject to the exceptions in section F).” 49. None of the exceptions in section F are relevant. Mr Watts submitted that Mr Thone was not asked to indicate a plea in the magistrates’ court, but there was no evidence that there was such a departure from the usual practice in the magistrates’ court and, after the hearing, we have seen the Better Case Management form, which confirms that Mr Thone indicated an intention to plead not guilty. It follows that the maximum level of reduction was one quarter. 50. The second aspect of this ground of appeal is that it is submitted that the sentence imposed on count 6 on the Buster indictment should have been reduced by one quarter rather than one tenth. The basis for this submission is that, by the end of the trial, it was apparent that there was a total overlap between that count and counts 1 and 2 on the Nebule indictment. 51. In the unusual circumstances of this case, we see force in this submission. The judge acknowledged in his sentencing remarks that there was a considerable degree of overlap between count 6 on the Buster indictment and counts 1 and 2 on the Nebule indictment, but he did not identify any specific respect in which count 6 on the Buster indictment involved offending which was not covered by counts 1 and 2 on the Nebule indictment. 52. Moreover, the principal respect in which the prosecution had submitted on 5 January 2021 that count 6 on the Buster indictment covered wider offending than counts 1 and 2 on the Nebule indictment was that it included class B drugs other than amphetamine, but by the time it came to the sentencing hearing, the prosecution described count 6 as a charge of conspiracy to supply amphetamine and the judge also adopted that description in his sentencing remarks. 53. In our judgment, it appears that the only offending covered by count 6 on the Buster indictment was that to which Mr Thone had pleaded guilty when he pleaded guilty to counts 1 and 2 on the Nebule indictment at the plea and trial preparation hearing. In those circumstances, any sentence imposed for that offending ought to have been reduced by one quarter. (6) Mr Kandola’s Appeal 54. Three proposed grounds of appeal were advanced on behalf of Mr Kandola: (1) The judge failed to make any findings of fact at the Newton hearing. (2) Alternatively, any such findings that can be inferred were irrational. (3) The judge ought to have acceded to the application to recuse himself from the Newton hearing. 55. The single judge granted leave to appeal on the first two grounds. Mr Kandola renewed his application for leave to appeal on the third ground, but in the hearing Mr Hodgetts stated that, if we allowed the appeal on the first or second ground, then the third ground was unnecessary. In those circumstances, we need say no more about the third ground. 56. In his ruling following the Newton hearing: (1) The judge did not say that he rejected Mr Kandola’s evidence that the drugs which he collected on 24 October 2017 were cannabis. Nor did the judge say that he was sure that they were, or included, hexedrone. He appears, therefore, to have sentenced Mr Kandola on the basis that he collected cannabis. (2) The judge did make clear that he rejected Mr Kandola’s evidence that he collected only 1 kg of drugs. He found that Mr Kandola had travelled from London to collect “a substantial quantity of drugs” and that he was a “multi-kilo dealer”. (3) The judge did not specify how many kilograms of drugs he found that Mr Kandola collected. Indeed, he said that he could not put a number on it. (4) However, the judge did say that he was satisfied that Mr Kandola’s offending fell within category 2 in the sentencing guideline. It is to be inferred, therefore, that he found that Mr Kandola collected significantly more than 6 kg of cannabis, that being the indicative quantity for category 3 offending. 57. On the other hand, it appears from his sentencing remarks that the judge accepted that Mr Kandola collected less than 40 kg of cannabis, that being the indicative quantity for category 2 offending. 58. The basis for the second ground of appeal is the contention that the evidence showed that the two bags handed to Mr Kandola could not have contained significantly more than 6 kg of cannabis. There was evidence of both the dimensions of the bags and the dimensions of a 1 kg package of cannabis. We have also seen photographs of the bags. Miss Moore did not challenge Mr Hodgetts’ submission that it was not physically possible for the bags to hold more than 8 kg of cannabis. In those circumstances, we consider that the judge was not entitled to place Mr Kandola’s offending on that occasion in category 2 in the guideline rather than category 3. 59. On the other hand, Mr Hodgetts accepted that the judge was entitled to reject Mr Kandola’s evidence that he collected only 1 kg of cannabis. It follows that the judge was entitled to find that Mr Kandola collected more than 1 kg. The judge’s finding that Mr Kandola was a “multi-kilo dealer” indicates that, as an absolute minimum, Mr Kandola collected at least 2 kg of cannabis. 60. The starting point for a defendant who played a significant role in a category 3 offence is 1 year’s imprisonment, with a range from 26 weeks to 3 years’ imprisonment. We bear in mind that 2 kg is less than the indicative amount for category 3, but it is also appropriate, for the reasons given in paragraph 35 of the judgment in R v Khan , to reflect the fact that Mr Kandola was not convicted of a single, isolated offence, but of being party to a much larger conspiracy. Moreover, his previous convictions, although not recent, were relevant. Taking account also of all of the mitigating factors advanced before the judge, we considered that a sentence of 22 months’ imprisonment would have been appropriate if Mr Kandola had been convicted by a jury. He pleaded guilty at the start of the trial, but his basis of plea was rejected following a Newton hearing, so that the sentence which he would have received if convicted by a jury falls to be reduced by no more than 5% by reason of his guilty plea. Rounding that up, we reduced his sentence to 20 months’ imprisonment.

2022_06_22-5355.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/846/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/846

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[2018] EWCA Crim 1821

EWCA_Crim_1821

crown_court

Neutral Citation Number: [2018] EWCA Crim 1821 Case No: 201802044 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT NOTTINGHAM His Honour Judge Sampson T20177253 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2018 Before: THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HONOURABLE MR JUSTICE WILLIAM DAVIES and THE HONOURABLE MR JUSTICE NICKLIN - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant -

Neutral Citation Number: [2018] EWCA Crim 1821 Case No: 201802044 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT NOTTINGHAM His Honour Judge Sampson T20177253 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2018 Before: THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HONOURABLE MR JUSTICE WILLIAM DAVIES and THE HONOURABLE MR JUSTICE NICKLIN - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and - TL Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr P Jarvis (instructed by Crown Prosecution Service ) for the Appellant Mr G.A.M. Purcell (instructed by Philips, Mansfield) for the Respondent Hearing dates: 13 June 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Approved The Lord Burnett of Maldon CJ: 1. This is a prosecutor's appeal against a decision to stay criminal proceedings in the Crown Court as an abuse of process. 2. The respondent, Mr L, faced a single count indictment in the Crown Court at Nottingham alleging that he attempted to meet a child following sexual grooming contrary to section 1(1) of the Criminal Attempts Act 1981. The essence of the allegation is that between 29 April and 3 May 2017 he communicated online and by WhatsApp with a person he believed to be a girl who was 14 years old. He arranged for that girl to go to his flat to take part in a threesome with his girlfriend. The person with whom he was communicating was an adult male, Jamie-Ray Mr U, who ran a group called “Predator Hunters”. This is one of a large number of groups established across the country which seek to expose adults seeking to have sex with children. He and others attended the appointment at the respondent’s flat, having tipped off the police. The respondent was arrested and his electronic communications seized. The prosecution was mounted on the strength of the content of his electronic equipment. The respondent’s defence, as disclosed in the defence case statement, was that his girlfriend was responsible for the messages sent from his phone, not him. She gave evidence for the prosecution and denied that suggestion. 3. Before the trial started, an application was made on behalf of the respondent to stay the proceedings as an abuse of process relying on entrapment and the principles set out in the decision of the House of Lords in R v Looseley [2001] UKHL 53 ; [2001] 1 WLR 2060 . The judge rejected that application but indicated that it might be renewed at the end of the prosecution case in the light of the evidence given by Mr U. On 8 May 2018 the application was renewed successfully and the Judge stayed the prosecution as an abuse of process. 4. The prosecutor seeks leave to appeal against the terminating ruling pursuant to section 58 of the Criminal Justice Act 2003, the jury having been discharged. The Registrar has referred the prosecution application for leave to appeal to the full court. The provisions of section 71 of that Act apply to these proceedings with the result that no publication may include a report of these appeal proceedings, save the specified basic facts, until the conclusion of the trial. 5. We grant leave to appeal and, for reasons which we will explain, allow the appeal. The facts in more detail 6. On 29 April 2017 the respondent’s phone was used to join a chatroom called “Say Hi” which may be accessed via an app. It appears to be a vehicle through which sexual encounters may easily be arranged. The profile suggested “me and my female partner wanting a girl that’s willing to try a new experience” and indicated that the girl should be 18 to 29. A few days later Mr U joined the chat room and set up a profile for a female named “Bexie”. The registration suggested she was 18, because unless that statement is made during the application process it is rejected. 7. Nonetheless, although the profile gave a date of birth in 1999, it went on to say: “Hiya am just your average 14-year-old girl looking to meet new friends”. The respondent, or whoever was using his phone, replied and asked in terms whether she was looking for sex and wanted a threesome with a 22-year old man and a 19-year-old female. Bexie’s response was: “Hey am 14 so I’m very inexperienced”. The reply was: “It’s ok we are experienced we will learn u and u can join in on sex as threesome”. The following day Bexie replied “but I’m a virgin …” There followed an exchange about where she and the phone user lived. Having established that they lived relatively close to each other, the respondent’s phone asked, “do you wanna meet up and sleep at ours for the night”. Bexie answered, “what to do though I’ve never done or met a boy before”. 8. In the next exchange, which took place late at night, Bexie indicated that she was getting ready for bed because she had school the next day. She was asked when she was off school and she indicated a date. The next set of messages included the following: “Do you wanna meet after school” “What to do?” “Go bk to ours” “Okay but what will we do?” “Have sex and show u how it feels” “But I don’t know how to have sex. Does your girlfriend know?” “Yh” “Oh ok is she ok with this?” “Yh completely” “We both want a threesome can u send me a pic of u” (a picture was sent by Bexie) “There you go” “U got any naked pics of u if you haven’t can u send me some if u don’t mind” “I don’t send them sorry but if I come to you then I’ll let you take some. Shall I come tomorrow after school?” A conversation followed about location before Bexie continued. “Does my age not bother you” “No” “Have you done it before” “Have I done what before” “Done it with a girl my age before” “No” “Oh ok so why am I so special and is it ok if I come up after my tea xx” 9. The exchange continued with more detailed arrangements and with discussion of what excuse Bexie would give to her mother. She asked for an assurance that she would not be hurt. She was then asked: “U ok to have sex with us” “I dunno how n never done it before though” “What” “I’ve never had sex before what if I am rubbish” She was reassured that her photograph meant she was gorgeous and that it did not matter that it was her first time. A photograph of the respondent and his girlfriend was sent back. There were further exchanges in which she expressed concern about getting pregnant. She was told: "U won't I promise u that … because I won't cum inside u … or do u want me to get sum condoms now" That produced the response “are they them rubber things”. That was confirmed and in a gap in communication of 15 minutes the phone user went out and bought condoms and sent a photograph as proof. After further exchanges about the time of meeting and how long Bexie would stay, the arrangement was finalised. As we have indicated, Mr U, together with others from his group, and the police turned up at the respondent’s door. The application and the ruling 10. It was submitted by Mr Purcell on behalf of the respondent that he had been entrapped and that Mr U had set out to incite offences when otherwise no offence would have been committed. It was suggested that the police were encouraging the activity of vigilante groups, including Mr U's in particular, and that the use of the evidence provided by such groups suggested at least tacit support for their activities. It was argued that the image provided by Bexie was of someone older than 14. It was submitted that the group of which Mr U was part was malicious and engaged in uncontrolled and unregulated activity. The heart of the submission was encapsulated in paragraphs 18 and 19 of the written argument in support: “18. It is submitted that the vigilante groups ought not to be encouraged by the police and the prosecution and ultimately the courts in the prosecution of these offences. 19. It is submitted that the process of the court is being abused by the failure to regulate the activities of these vigilante groups where they are inciting offences that otherwise would not have been committed.” 11. There was an additional argument that the provisions of the Regulation of Investigatory Powers Act 2000 [“RIPA”] applied, because Mr U should be regarded as a covert intelligence source. The judge rejected that argument, not least because he concluded that there was no evidence that the group was acting as an agent of the police. It has not been renewed. 12. Mr Jarvis, for the prosecution, submitted that leaving aside the RIPA question, there was no basis for suggesting that Mr U was acting as an agent for, or at the behest of, the police and that there was no support in authority for staying a prosecution of this sort as an abuse of process. In particular, Looseley was concerned with actions of the police or other state actors. 13. The judge noted that Mr U was told by the police, sometime after the material events, that they did not condone the activities of this group. The judge added that the police were willing to use "evidence obtained by these self-appointed, unregulated, freelance evidence-gathering bodies." He continued: "That said, the question before me concerns this case only. The question is, did Mr U entrap the accused, Mr L? If he did, or might have done, it is argued with some force that the indictment should be stayed. I am not concerned with the blameworthiness of Mr L, but with the propriety of there being a prosecution at all." In his exposition of the facts and evidence, the judge explained that in his view the photograph provided was of a girl "from at least 14 but could be older, including 18 or more”. He considered that Mr U's evidence that he had picked the photograph as "an innocent looking 14-year-old" was disingenuous. He noted Mr U's evidence that going to the chatroom in question had been suggested to him as a suitable place to find paedophiles by others engaged in similar vigilante activities. The judge considered this to be intelligence in a vague sense. But he did not think that it provided reasonable suspicion that the site was in fact being used in that way. 14. The judge identified Looseley as the leading case on entrapment and recognised that it was concerned with the action of the police and other law enforcement agencies. He quoted passages from the speeches of Lord Nicholls, Lord Hoffmann and Lord Hutton before concluding that: “There is nothing to stop such a group gathering material and handing it to the police. It may form the basis of an intelligence led police operation, it may add to the body of evidence obtained by the police. However, in my judgment, if the purpose of the exercise is to behave like an internet police force, and to behave in a proactive way, in order to obtain evidence on which to mount a prosecution, it seems to me the common law principle against entrapment should apply to this private citizens’ operation, in the same manner as it would apply to a police operation.” The judge added to that essential reasoning that the offence was artificially created by a vigilante group without reasonable cause. Had the police acted in this way it would have been an abuse of process. It was insufficient to say that, because this sort of activity goes on in chatrooms, it was legitimate to mount a "virtue testing exercise". It was a disproportionate invasion of privacy. His conclusion would have been different if there had been evidence sufficient to give reasonable suspicion that the site was being used by adults to groom children. He would have concluded: “… first that Mr L had been presented with no more than an unexceptional opportunity to commit a crime; second that the artifice and stratagem, or proactive technique used by Mr U, was just within the bounds of acceptability; third that the offence, ostensibly committed by Mr L had not been induced by the actions of Mr U.” Grounds of Appeal 15. The appellant contends (a) that the judge erred in concluding that the principles articulated in Looseley could be read over without modification to the activities of non-state actors; and (b) that, in any event, if the activities of Mr U had been undertaken by the police, there would have been no abuse of process. Looseley 16. Looseley was a case which concerned police conduct that provided the appellant with the opportunity to supply drugs to an undercover officer. The Attorney General's reference, heard at the same time, concerned the use of undercover officers to offer for sale contraband cigarettes. The headnote captures the essence of the ratio: "The court was required … to balance the need to uphold the rule of law by convicting and punishing those who committed crimes and the need to prevent law enforcement agencies from acting in a manner which constituted an affront to the public conscience or offended ordinary notions of fairness; that each case depended on its own facts and, when identifying the limit to the types of police conduct which were acceptable, the principle to be applied was that it would be unfair and an abuse of process if a person had been lured, incited, or pressurised into committing a crime which he would not otherwise have committed; but that it would not be objectionable if a law enforcement officer, behaving as an ordinary member of the public would, gave a person an unexceptional opportunity to commit a crime, and that person freely took advantage of the opportunity.” 17. The context of the consideration by the House of Lords of the questions on appeal was identified by Lord Nicholls, in the first paragraph of his judgment, as the inherent power to prevent abuse of process to ensure that "executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state." Entrapment does not provide a defence to a criminal charge, but the court acts in appropriate circumstances to prevent the prosecutorial arm of the state from behaving in an improper way [16]. The judicial response to entrapment by state agents is based on the need to uphold the rule of law and to refuse to sanction the prosecution of "state-created crime" [19]. He continued by exploring what was meant by that concept before identifying what he described as a useful guide to where the boundary might lie: "… to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasis 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 be expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime. The police do no more than others could be expected to do. The police did not create crime artificially." [23] Lord Nicholls continued by identifying a number of other factors that might fall to be considered before indicating: "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. So is Lord Bingham of Cornhill CJ's reference to conviction and punishment which would be deeply offensive to ordinary notions of fairness: see Nottingham City Council v Amin [2000] 1 WLR 1071 , 1076. In applying these formulations the court has regard to all the circumstances of the case." [25] 18. Lord Hoffmann and Lord Hutton delivered further comprehensive speeches, agreeing with each other and with Lord Nicholls. Lord Mackay of Clashfern and Lord Scott of Foscote agreed with all three. 19. Lord Hoffmann summarised the position at [36]. Entrapment is not a defence but the court has jurisdiction to stay a prosecution on the ground "than the integrity of the criminal justice system would be compromised by allowing the state to punish someone whom the state itself had caused to transgress." This abuse jurisdiction was fashioned to "prevent abuse of executive power" [40]. Having referred to Lord Steyn's formulation in the Latif case (“an affront to the public conscience”) he continued by analysing the concept in some detail. "The objections to entrapment are certainly more specific that a generalised fastidiousness about police practices. The theme that 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." [48] 20. Between [50] and [55] Lord Hoffmann considered the distinction between "causing and providing an opportunity" to commit an offence and, in particular, whether the law enforcement officer behaved like an ordinary member of the public. He considered that concept works well in regulatory offences (selling unlicensed liquor, operating a private hire vehicle without a licence etc.) but less well in cases involving serious criminality, such as drug dealing or conspiracy to rob. He then discussed a feature of many entrapment cases, namely that a person is suspected of criminal activity with the opportunity then created to test that suspicion, under supervision. Supervision is part of the close regulation of such activity operated by police and other law enforcement agencies themselves. At [60] Lord Hoffmann referred to the then governing Code of Practice dealing with undercover officers, test purchasers and decoys. He explained that reasonable suspicion does not necessarily mean that there must be suspicion of a particular person: "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 on whom no suspicion previously attached. This can happen when a decoy (human or inanimate) is use in the course of the detection of a crime which has been prevalent in a particular place. Lamer J in R v Mack 44 CCC (3d) 513 ,553 gave the example of the police planting a handbag in a bus terminal where numerous thefts had recently taken place. A real example in England was Williams v Director of Public Prosecutions (1993) 98 Cr App R 209 , in which the police were investigating thefts from vehicles in Essex. They left an unattended Transit van with the back door open and cartons of cigarettes visible. When the appellants stole the cigarettes, they were arrested. Although the judgment contains, at p-213, some reference to causal reasoning ("they were tricked into doing what they wanted to do") I do not think that in such a case causation provides a sufficient answer. 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 an actual crime and the fact that the defendants may not have previously been suspected or even thought of offending was their hard luck." 21. The Code of Practice required the authorising officer to be satisfied that the desired result could not be achieved without the use of subterfuge envisaged. The nature of the offence, especially consensual offences such as dealing in unlawful goods, bribery, conspiracy and offences where victims would be reluctant to report an offence, might justify the use of such methods [66]. And at [70] Lord Hoffmann said: "70. ...it seems to me that when Lord Bingham CJ in [the Nottingham case] said that the accused should not be "incited, instigated, persuaded, pressurised or wheedled" into committing the offence, he was not intending each of those verbs to be given a disjunctive and technical meaning. He was intending to evoke a more general concept of conduct which causes the defendant to commit the offence as opposed to giving him the opportunity to do so. No doubt a test purchaser who asks someone to sell him a drug is counselling and procuring, perhaps inciting, the commission of an offence. Furthermore, he has no statutory defence to a prosecution. But the fact that his actions are technically unlawful is not regarded in English law as a ground for treating them as an abuse of power: see R v Latif [1996] 1 WLR 104 and compare Ridgeway v The Queen 184 CLR 19 . 71. In summary, therefore , the principles of English law on which a stay of proceedings may be granted on ground of entrapment involve the consideration of a number of aspects of the behaviour of the law enforcement authorities, some of which I have examined in detail, and deciding whether the involvement of the court in the conviction of a defendant who has been subjected to such behaviour would compromise the integrity of the judicial system." 22. Lord Hutton, at [100], expressed his full agreement with the views expressed by Lord Nicholls and Lord Hoffmann in balancing "the competing requirements that those who commit crimes should be convicted and punished and that there should not be an abuse of process which would constitute an affront to the public conscience." He approbated the way in which McHugh J had set out the position in the Ridgeway case in the High Court of Australia at p92: "I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters: (1) Whether conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose. (4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence." 23. Lord Hutton added that a prosecution should not be allowed to proceed when the evidence had been obtained by threats. 24. All members of the Committee concluded that the approach in English law was entirely consonant with the requirements of article 6 of the European Convention on Human Rights and Strasbourg authority. Other authority 25. It is well established that there are two broad types of abuse of process which may lead to a prosecution being stayed. They were summarised by Lord Dyson in Warren v Attorney General for Jersey [2012] 1 AC 31 at [21]. The first occurs when it is impossible to give the accused a fair trial. The second when it offends the court's sense of justice and propriety to be asked to try the accused or would undermine public confidence in the criminal justice system and bring it into disrepute. 26. There is one authority, to which we will refer, where the actions of non-state actors have been considered for the purposes of deciding whether a prosecution should be stayed as an abuse of process on the second basis. 27. Council for the Regulation of Health Care Professionals v The General Medical Council and Saluja [2006] EWHC 2784 (Admin) ; [2007] 1 WLR 3094 concerned an undercover journalist who posed as a patient. She persuaded a doctor to agree to give her a sickness certificate to enable her to take time off work and go on holiday. There was no question of her being ill. In disciplinary proceedings the Fitness to Practise Panel of the General Medical Council stayed the proceedings as an abuse of process relying on entrapment. The appeal to the High Court was allowed by Goldring J. He noted a number of decisions, in both the disciplinary and criminal context, in which a distinction has been drawn between state actors and non-state actors in abuse of process cases. R v Shannon [2001] 1 WLR 51 concerned an appellant who sought to rely on abuse of process in circumstances where he said he was induced by an undercover journalist to buy drugs. This court drew a distinction between entrapment by state agents and non-state agents, [39]. The case went to Strasbourg, [2005] Crim LR 133, but the application was rejected as manifestly unfounded. The Strasbourg Court explained that its jurisprudence was concerned with entrapment by state actors (c.f. Teixeira de Castro v Portugal (1998) 28 EHRR 101 ). The state's role in Shannon's case was limited to prosecuting on the basis of information provided by a third party which the court considered was different. It did not exclude the possibility that admission of evidence obtained in this way may render the proceedings unfair for the purposes of article 6 ECHR, just as the domestic court might in some circumstances exclude the evidence or stay the proceedings. R v Hardwicke [2001] Crim LR 220 and R v Marriner [2002] EWCA Crim 2855 were both cases of alleged journalistic entrapment. This court drew a distinction between such behaviour and that involving the state and its agents. Hasan v General Medical Council [2003] UKPC 5 was a previous medical disciplinary case where a doctor argued entrapment by a journalist, without success. 28. Goldring J concluded that to impose a stay in cases of alleged entrapment by a non-state actor was exceptional [79] and then continued: "80. Second, the principle behind it is the court's repugnance in permitting its process to be used in the face of the executive's misuse of state power by its agents. To involve the court in convicting a defendant who has been the victim of such misuse of state power would compromise the integrity of the judicial system. 81. Third, as both domestic and European authority make plain, the position as far as misconduct by non-state agents in concerned, is wholly different. By definition no question arises in such a case of the state seeking to rely upon evidence which by its own misuse of power it has effectively created. The rationale of the doctrine of abuse of process is therefore absent. However, the authorities leave open the possibility of a successful application for a stay on the basis of entrapment by non-state agents. The reasoning I take to be this: given sufficiently gross misconduct by the non-state agent, it would be an abuse of the court's process (and a breach of article 6) for the state to seek to rely on the resulting evidence. In other words, so serious would the conduct of the non-state actor have to be that reliance upon it in the court's proceedings would compromise the court's integrity. There has been no reported case of the higher courts, domestic or European, in which such "commercial lawlessness" has founded a successful application for a stay. That is not surprising. The situations in which that might occur would be very rare indeed." Discussion 29. We have seen that the judge recognised that the Looseley case was concerned with the agents of the state but nonetheless posed for his determination the question whether "Mr U entrapped Mr L". He then sought to apply the common law principle against entrapment in the same way to the actions of a private citizen as it would be applied in those of a police officer. By using that shorthand, he did not appear to pose the overall question as applies to state agents’ conduct as variously articulated in the speeches in the Looseley case, for example, whether what occurred was “deeply offensive to ordinary notions of fairness” or was “an affront to the public conscience” or “was so seriously improper as to bring the administration of justice into disrepute” (see [17] above). It is implicit, however, that the judge took the view that it was. 30. The judge considered that the absence of sufficient suspicion that the site was being used for illegal activity was a critical factor in deciding which side of the line Mr U’s conduct fell. He concluded that, had there been evidence sufficient to give reasonable suspicion that the site was being used by adults to groom children, he would have concluded that Mr L had been presented with no more than an unexceptional opportunity to commit a crime; and that the technique used by Mr U was just within the bounds of acceptability. 31. Consideration of the speeches in the Looseley case demonstrates that the principles there explained apply to the conduct of agents of the state. Involvement of agents of the state in unacceptable behaviour is at the heart of the reasoning. It is the court’s unwillingness to approbate seriously wrongful conduct by the state, by entertaining a prosecution, that is the foundation of this aspect of the abuse jurisdiction. So much is clear from Looseley itself and was recognised in Shannon in both the domestic proceedings and in Strasbourg and also in Marriner . The judge’s approach allowed no distinction between the conduct of Mr U, as a private citizen, and agents of the state, when considering whether to stay the prosecution as an abuse of process. In our judgment he erred in that respect. For that reason, the judge’s conclusion cannot be supported. 32. In both domestic jurisprudence (see the Health Care Professionals case) and in Strasbourg when looking at conduct for the purposes of article 6 (see the Shannon case) there is a recognition that the conduct of a private citizen may in theory found a stay of proceedings as an abuse of process. As Goldring J recognised in the former case, no question of the state seeking to rely upon evidence which flows from its own misuse of power arises. The underlying purpose of the doctrine of abuse of process is not present. Nonetheless, a prosecution needs evidence; and it is not inconceivable that given sufficiently gross misconduct by a private citizen, it would be an abuse of the court's process (and a breach of article 6) for the state to seek to rely on the product of that misconduct. The issue would be the same: would the prosecution be “deeply offensive to ordinary notions of fairness” or “an affront to the public conscience” or “so seriously improper as to bring the administration of justice into disrepute”. In other words, as Goldring J put it: “so serious would the conduct of the non-state actor have to be that reliance upon it in the court's proceedings would compromise the court's integrity”. He observed that there had been no reported case in which such activity has founded a successful application for a stay. Like him, we do not find that surprising. Given the absence of state impropriety, the situations in which that might occur would be rare. 33. We have no hesitation in concluding that the circumstances of this case are not amongst them. 34. We start by observing that Mr U committed no offences in the course of his conduct which led to Mr L’s arrest. True it is that he posted a profile which said the girl he was posing as was 18. But on the first inquiry he said she was 14. At no time did he induce the user of Mr L’s phone to commit an offence. He was providing information which represented that the girl in question was only 14 and also explained that she was sexually inexperienced. It was the user of the phone who made all the running. Indeed, Mr U appears to have been scrupulous to avoid encouraging his interlocutor in the proposed sexual activity and at no time did he take the lead. This is far removed from a case of incitement in the sense of one person pushing another towards committing an offence which he would otherwise not commit, for example by badgering someone to engage in unlawful sexual or other activity. On the contrary, this is more akin to the example given by Lord Hoffmann in the Looseley case (see [20] above) from Williams v DPP in which the police were investigating thefts from vehicles and left a van unlocked with cartons of cigarettes visible. 35. A starting point in considering whether the conduct of a private citizen should result in a stay of proceedings is to ask whether the same, or similar, conduct by a police officer would do so. A precise comparison may be difficult because when the police or other state investigators or prosecutors act in this way, they do so subject to codes of conduct and strict hierarchical oversight. 36. Nonetheless, in this case, whilst Mr U may not have had sufficient information to support a reasonable suspicion that the site was being used for grooming purposes, he was pointed in the direction of the site by others with an interest in suppressing illegal conduct. The police might well proceed on an intelligence led basis. That would involve more sophisticated evaluation of the intelligence, but to do so would not be objectionable. If they had then engaged in just the same way as did Mr U their conduct would not have supported a stay for abuse. On the contrary, this would have been an example of the type of investigation of potentially serious criminal activity where the absence of suspicion of an individual, but intelligence to suggest that a dating site was being used for criminal purposes, would provide a proper basis for targeting that site. Of course, great care would need to be taken to do no more than give an opportunity for others to commit offences, but that is what Mr U did. 37. If police officers had engaged in broadly similar conduct an application to stay the proceedings as an abuse of process should have failed. 38. Moreover, the judge’s conclusion that he would not have stayed these proceedings had Mr U had reasonable suspicion that the site was being improperly used for grooming purposes leads inevitably to the conclusion that they should not have been stayed. State misconduct is absent from the mix, but additionally Mr U’s choice of this site was not random (as we have described). Even had it been, that would not support a suggestion that his conduct was so egregious that the integrity of the court would be compromised by allowing the prosecution to proceed. 39. There is nothing in Mr U’s conduct that makes it inappropriate for the prosecution to proceed. In reaching this conclusion we do not seek to undermine or contradict the stated position of the police, by which they discourage private individuals from setting out to identify those who groom children and arrange to meet them for sexual purposes. They have concerns that their own investigations might be compromised, that private investigations may not produce admissible evidence, that there may be risks to the safety of the investigators and the subjects of their investigations and that the zeal of some “vigilantes” may lead them to seriously improper conduct. It would be much better for those in Mr U’s position immediately they have suspicions about the conduct of an identifiable individual to involve the police and leave them to investigate. But the question before us is whether the judge was right to stay the proceedings as an abuse of process. Our conclusion is that he was not. Conclusion 40. In the result, we are satisfied that the judge applied the wrong test to the question whether these proceedings should be stayed. There is nothing in the conduct of Mr U which supports the stay of the prosecution as an abuse of process. We grant leave to appeal, allow the appeal and order a new trial.

2018_07_31-4374.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1821/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1821

46d92b96b4fe24f88781a1548935c6c6ee80c74fd802a8d80b31ed1ed5116f4a

[2008] EWCA Crim 1491

EWCA_Crim_1491

supreme_court

Neutral Citation Number: [2008] EWCA Crim 1491 Case No: 200605950B1 200605951B1 200605949B1 20060595 B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CANTERBURY CROWN COURT HIS HONOUR JUDGE ADELE WILLIAMS T 20047114 T20047049 T20047020 T20047021 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/07/2008 Before : LORD JUSTICE HUGHES MR JUSTICE FIELD and HIS HONOUR JUDGE RICHARD BROWN (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - -

Neutral Citation Number: [2008] EWCA Crim 1491 Case No: 200605950B1 200605951B1 200605949B1 20060595 B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CANTERBURY CROWN COURT HIS HONOUR JUDGE ADELE WILLIAMS T 20047114 T20047049 T20047020 T20047021 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/07/2008 Before : LORD JUSTICE HUGHES MR JUSTICE FIELD and HIS HONOUR JUDGE RICHARD BROWN (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : Durgesh Mehta Mathew Sharman Gerald Patrick Reardon Peter John Ratcliff Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Khamisa QC and Mr N Hawes (instructed by Irwin Mitchell ) for the Apellant Mehta Miss E A Marsh QC and Mr M Maher (instructed by David Charnley ) for the Appellant Mathew Sharman Mr A Lakha QC and Mr T Badenoch (instructed by Alexander Johnson) for the Appellant Gerald Patrick Reardon Sir Ivan Lawrence QC and Mr. M Buckland (instructed by Garstangs ) for the Appellant Peter John Ratcliff Mr J Anderson, Mr N Medcraft and Miss V Atkins (instructed by Revenue and Customs Prosecutions Office ) for the Crown Hearing dates : Thursday 19 th and Friday 20 th June 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes : 1. On 19 & 20 June we heard applications for leave to appeal against both conviction and sentence by all four defendants. We gave judgment on 20 June in relation to each of the conviction applications, but were obliged by want of time to reserve our decisions as to sentence. Those we now give. 2. It is unnecessary to repeat the circumstances of these offences. A summary of them can be found in our judgment relating to the conviction applications. Mehta was convicted of cheating the revenue by way of a substantial ‘carousel’ VAT fraud (count 1). All four defendants were convicted of conspiracy to launder the proceeds (count 2). The indictment had contained substantive counts of money laundering to cater for the possibility that the jury might be satisfied, in the case of one or more defendants, that he was party to laundering specific sums which passed through his own hands but not to the wider conspiracy charged in count 2. The jury’s verdicts of guilty on count 2 made it unnecessary to take verdicts on those substantive counts, and justifies the conclusion, reached by the trial Judge, that each of the last three defendants had been party to the laundering of all the proceeds except about £1m which was or may have been handled outside the loop of which they were part. Thus the sums involved were, for Mehta, about £7.1m, and for the other defendants approximately £6m. Like many MTIC or ‘carousel’ frauds and their associated money-laundering, this was a highly sophisticated operation, with the essential simplicity of the fraud being disguised by what the Judge described as ‘thousands of false invoices and documents, faxes and bank statements’, as well as a false bank account. The circulation of the money by way of disguise took in the continent as well as activity in this country. 3. The Judge sentenced Mehta to 10 years for the cheat, with a concurrent term of 8 years for his part in the laundering, thus 10 years in all. She sentenced each of the remaining defendants to 8 years for the money laundering in count 2. 4. The first submission made to us was that the Judge had been wrong to proceed to sentence after it had become known at the end of the trial that Reardon and Ratcliffe had been arrested on suspicion not only of tampering with the jury (the Kilshaw tampering) but also of uttering a threat to kill the Judge. It is said that she should have declined herself to pass sentence because there would be a perceived Medicaments ‘bias’, used in the sense of lack of independent objectivity, because she had unavoidably become personally involved. That, it is submitted, might lead to the adoption of a raised starting point, which might (a) be unappealable in the sense of falling within an acceptable bracket, but nevertheless be wrongly affected by the allegations made, and (b) affect not only the two defendants arrested but also, by parity, others. We sympathise with the difficult position in which the Judge found herself. But there is real importance in sentence being passed by the Judge who has heard the trial, in this case over several weeks. We do not doubt that the Judge was able to discount for the purposes of sentencing the allegations made against Reardon and Ratcliffe, especially when she had no means of knowing whether they were to be substantiated or not. In the end, no charge was brought against either man. 5. There was at one time a further argument based upon the fact that in passing sentence the Judge inadvertently explained the sentence in terms of the early release provisions of the new Criminal Justice Act 2003 , rather than those of the 1991 Act, which applied to this case because of the date of the offences. That has rightly not been advanced in the light of the enactment of section 26 Criminal Justice and Immigration Act 2008 , which brings the early release provisions for these defendants, and most 1991 Act prisoners, into line with those applicable to 2003 Act prisoners. We are not to be taken to be saying that even without the new statutory provision this complaint would have had any force; it does not seem to us that it had. 6. The principal ground of appeal is that the sentences are simply too long. Each defendant has contended that by comparison between his own case and that of one or more others his responsibility ought to have been recognised to be smaller. We see no error in the Judge’s approach. She had an unrivalled opportunity to judge the roles of each defendant. On the material which we have examined we have no doubt that she was entitled to conclude that Mehta had had more than a formal ‘front-man’ role and was deeply involved in the organisation and execution of the cheat. Given the convictions on count 2, the different but complementary activities of the other three defendants, and the contacts between them, and between them and other essential persons, we are equally sure that she was entitled to treat them all the same. As she said, they acted ‘as a team’. 7. Were the sentences nevertheless too long ? We have considered a number of cases of sentencing in carousel frauds, to which we have helpfully been referred. Insofar as reliance is placed upon May [2005] 2 Cr App Rep (S) 67 at 408 two things are to be noted. First, the amount involved for the defendant in question was £4.4m, rather than the £12m figure to which we were referred, which was the total for all defendants. Secondly, the reduction in sentence there made, from 5 years to 4 years, was made because the sentence had been passed on a factual basis subsequently found by the sentencing Judge during the confiscation proceedings to have been erroneous (see page 429). This court did not need to address the question of whether 5 years would have been appropriate upon late plea of guilty, for a fraud involving £4.4m. 8. This court recognised in AG reference 88 of 2006 (Meehan and others) [2007] 2 Cr App Rep (S) 155 that earlier sentences for this form of fraud had not always been as long as its prevalence has shown to be necessary. It is with this case and the judgment of the Vice President, Latham LJ, that it is now necessary to begin. There, the sums of duty evaded for the principal three defendants had been £24m or £38m. This court indicated that for those engaged on that scale as organisers of the fraud sentences well into double figures could now be expected after trial. However, different considerations applied to those sentenced in that case who were the operators of genuine companies with legitimate trade, and who lent themselves to the fraud as ‘buffer companies’, that is to say those through whose hands the actual or notional commodities passed, but who were neither the missing traders who withheld the VAT nor the eventual reclaimers of VAT upon ‘export’. After trial, sentence for such buffer operators should, it was held, be of the order of 6-8 years; that was assuming an overall loss to the Revenue of the order of £24-38m. [Note that the penultimate sentence of paragraph 19 of the judgment as reported contains a misprint in speaking of such a sentence being appropriate to a plea of guilty.] In the subsequent case of Takkar [2008] EWCA Crim 646 this court, presided over by Sir Igor Judge P, upheld a sentence of 7 years after trial where the defendant was not running a buffer company but was held to be an organiser of the fraud, in that case as the missing trader. There, the loss to the Revenue involved was about £5m. 9. We have also looked at a number of cases of more general money-laundering. We say no more about them than that we take the view that the Judge in this case was entitled to treat the money laundering as having been very close to the fraud. What it was not, however, was an example of the general money-laundering service offered to numerous criminals, of the kind exemplified by a number of bureau de change or hawala banking operators. Whilst each case will depend on its own facts, it may often be true that such general launderers are not merely as culpable as the criminals generating the money but not infrequently more so, and often more culpable than are those who engage in the handling of the proceeds of a particular fraud, as here. In a case of this present type, it seems to us that there is relatively little difference in culpability between the architects of the fraud and the architects of the specific money laundering which was essential to its success. We think, however, that in this case we should respect the difference made by the Judge who heard the trial between Mehta and the other three defendants, which was no doubt intended to reflect both the difference in amounts for which they bore responsibility and a limited distinction between fraudsman and launderer. It is to be observed that in the case of Sharman he had been indicted for the cheat, but was acquitted on that count by the jury. 10. We bear in mind that all these defendants were of previous good character, or effectively so. That is by no means always the case in instances of carousel fraud. 11. Mehta was an organiser of the fraud which involved a loss of just over £7m. Applying the cases and the principles which we have set out, we are satisfied that a 10 year sentence is too long, not by a great deal, but by sufficient to make it necessary for us to adjust it. In our view the proper sentence after trial for a person in his position would ordinarily have been about 8 – 9 years. In his particular case the personal material available, not all of which was available to the trial Judge, merits a modest adjustment in that tariff. We give leave to appeal, quash the sentence of 10 years and substitute one of seven and a half years. To that extent his appeal against sentence is allowed. 12. In the case of the other defendants, and respecting the distinction which the Judge made between their case and that of Mehta, it seems to us that the proper sentence for conspiracy to launder about £6m ought to have been six and a half years. In each case, we give leave to appeal, allow the appeals, quash the sentences of eight years and substitute ones of six and a half years.

2008_07_15-1586.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1491/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1491

11656905f87b89e9fd13012eee7bdb4dcb69f7bc98a7c8b118310d71f07ff45d

[2010] EWCA Crim 1460

EWCA_Crim_1460

crown_court

Case No: 2009/6600/B3 Neutral Citation Number: [2010] EWCA Crim 1460 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT His Honour Judge King T20070149 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/06/2010 Before: LORD JUSTICE MOSES MR JUSTICE HENRIQUES and HIS HONOUR JUDGE ROBERTS, QC - - - - - - - - - - - - - - - - - - - - - Between: Philip Bowles Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 2009/6600/B3 Neutral Citation Number: [2010] EWCA Crim 1460 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT His Honour Judge King T20070149 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/06/2010 Before: LORD JUSTICE MOSES MR JUSTICE HENRIQUES and HIS HONOUR JUDGE ROBERTS, QC - - - - - - - - - - - - - - - - - - - - - Between: Philip Bowles Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr W Clegg QC (instructed by Morgan Rose Solicitors ) for the Appellant Mr M Bryant-Heron and Mr G Pottinger (instructed by The Crown Prosecution Service, Central Fraud Group ) for the Respondent Hearing date: 15 th April, 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moses : 1. In this application the applicant applies for permission to adduce fresh evidence in the form of a forensic accountancy report. He had previously applied for permission to do so before this Court, differently constituted, on 9 February 2010 (a Court presided over by Lord Judge, Chief Justice of England and Wales, with Moses LJ and Penry-Davy J). That Court dismissed one ground of appeal but gave the applicant further opportunity to explain why it was that a forensic accountancy report had not previously been obtained. 2. The applicant was convicted of cheating the Revenue on 1 June 2009 at Reading Crown Court. He was acquitted on two other counts which also alleged that he had cheated the Revenue. The essence of the case against him was that he had dishonestly failed to submit a VAT return for the period ending March 2004, due on 30 April 2004. The prosecution contended that the applicant as sole director of Sea Island Holdings Limited had dishonestly failed to disclose his liability, in that return, for output VAT in the sum of £1.37m. The applicant’s defence, both at interview and at trial, was that he believed that he was entitled to credit for input tax incurred in respect of reclamation of development land by Ocean Developments Limited, the lead company in a VAT group which had ceased to trade at the end of 2003, and whose VAT registration had been cancelled with effect from 1 January 2004. There is no dispute but that Ocean Developments Limited, which the applicant had founded, and of which he was sole director and shareholder, had purchased quantities of derelict land in the Cardiff area. It reclaimed the land and sold it to various development companies. The applicant also ran Air Freight Express Limited and AFX Handling Limited, an air freight business. 3. Since much of the business of the aircraft industry was zero-rated for VAT purposes the applicant undoubtedly had the benefit of credits for input tax due to that business. But before this Court it was never contended that any of the input tax attributable to those businesses would have extinguished the output liability, even if it had been open to credit such zero-rated transactions to the Sea Island Holdings Group. It is, therefore, unnecessary to detail the nature of the air freight business or, further, to consider the extent to which it would have added to credits to which one or other of the groups might have been entitled. We need focus only on the development of the Cardiff land and expense incurred in its reclamation. 4. On 9 January 2004 Sea Island Holdings sold a parcel of land to Vocalcastle Limited for £280,000 plus £49,000 VAT. On 20 January 2004 Sea Island Holdings sold another parcel of land, to George Wimpey, for £7.5m plus £1.312,500 VAT. On 21 January 2004 a further parcel of land was sold to Cardiff City Council for £73,500 plus £12,906.25 VAT. In February 2004 HMCE pressed the applicant for outstanding reclaims in respect of the Ocean Developments Limited Group and the applicant responded on 4 March 2004 saying that all the records were now available. 5. Jane Wyborne, appointed as Financial controller of Sea Island Holdings Ltd in May 2003, prepared a return for the VAT quarter ending 31 March 2004, the subject matter of count 3 in respect of which the applicant was convicted. On 30 June 2004 a return for the next quarter was prepared, claiming £5,897 repayment, but it was never submitted. An official of HMCE, Mr Aulak, realising that no return had been submitted for the period to March 2004, visited Sea Island Holdings’ premises on 28 July 2004, but was told by Jane Wyborne that she had only been in post for about a month and VAT returns had not been prepared. He was given provisional figures for the quarters ending June and September 2004, on 12 October 2004, and asked, in writing, on the same day, for company accounts and VAT returns for three outstanding periods including that which ended March 2004. Jane Wyborne left the company on 4 November 2004 and wrote to the applicant saying that she had left the outstanding VAT returns, due immediately, with another employee, Sarah Harrison. She had also drafted a letter to HMCE. She told the applicant that Sea Island Holdings owed in excess of £1.2m and had prepared a VAT status summary accordingly. 6. Aulak received no further information at that stage, despite chasing Sea Island Holdings with a further copy of the letter dated 12 October 2004 and a further letter dated 22 December 2004. It is worth observing, at this stage, that HMCE was not told of the substantial sale to George Wimpey at the beginning of the year or of the liability thereby arising of over £1m VAT. It was a check of Wimpey’s input claim in June 2005 that revealed that liability. HMCE told the applicant that the VAT output should have been declared. In August 2005, following HMCE’s assessment, the applicant wrote contending that some substantial amounts of input tax had not been claimed since 2001. From that date onwards he never provided details. 7. On 23 January 2006 the applicant told Aulak that he had secured a loan for £1.7m to pay back amounts owing and asserted that he had started litigation against liquidators of Ocean Developments Limited to compel the production of records. He was arrested on 20 July 2006 and in interview asserted that, prior to the interview, he had believed he could claim input tax in respect of the group of which Ocean Developments Limited was the lead company. In his defence statement he reiterated that his belief was that the “aggregate VAT position of the group including Ocean’s VAT should be taken into account when considering output tax liability”, and he believed that “there would be no net liability for VAT overall”. Thus his defence throughout has been that he had not acted dishonestly because he believed that, by virtue of input tax previously incurred by the Ocean Developments Limited VAT group, no output tax was owed by Sea Island Holdings Ltd. 8. This application has focussed on the question as to whether forensic accountancy reports prepared by Mr Woolford on behalf of Lawford Company, Chartered Accountants, could have been obtained for use at trial and, if not, whether their content undermines the safety of the jury’s verdict. 9. We can deal with the first issue shortly. In response to the directions given by the Lord Chief Justice, we have had the opportunity to read transcripts of a number of applications made to different judges in which those previously instructed by the applicant had sought for further time to obtain the evidence of forensic accountants and obtain legal aid for that purpose. We note, in particular during the hearing before Her Honour Judge Zoe Smith, that different judges considering the issue were sceptical as to the need for a full report: what was required was evidence that input tax had been incurred in respect of reclamation work and that input tax had not been claimed to offset any output tax liability. Since the question of whether the evidence was more readily and cogently to be obtained from contractors who had actually carried out the work and charged VAT is relevant to the second issue, we need not labour it. 10. Fundamental to the contention that it was no fault of the applicant that the evidence which he wished to call had not been called, is the issue as to how any such evidence was to be paid for. It seems plain that the legal aid authorities were unwilling to commit the sort of expense which the accountants said they needed to prepare and submit a full report. The applicant says he would have been willing to pay for it out of his own funds but was prevented by reason of a restraint order under the Criminal Justice Act 1988 . The evidence of Mr Simon Rose, a partner in Morgan Rose Solicitors, reveals a serious misapprehension on the part of solicitors previously instructed by Mr Bowles. His previous solicitors believed that the applicant’s funds had been restrained under the Proceeds of Crime Act 2002 and that therefore, by virtue of s.41, there was no possibility of his having access to his own funds to pay for a forensic accountancy report. In fact, the applicant had been charged with offences which pre-dated the commencement of the Proceeds of Crime Act 2002 and the restraint order was changed to reflect that fact. Had that been realised earlier, the applicant would have been allowed to make an application to use his own funds to obtain a forensic accountancy report. Indeed, when Mr Rose reviewed the restraint orders, he could find no prohibition preventing Mr Bowles from using his own assets for that purpose. 11. Whilst we fully understand the reluctance of judges hearing applications prior to the date of trial and indeed of the trial judge in adjourning the matter further for a full report to be obtained, it does appear that the applicant was not advised he could use his own funds. We accept that the applicant was anxious to obtain such a report in order to provide substance to his contention that the explanation for his failure to submit a return was his belief that the input tax exceeded any output tax liability. In those circumstances, we think there has been a sufficient explanation of the failure to adduce the forensic accountancy reports, which we now have, at trial, and in those circumstances we shall focus on the substance of those reports and the evidence which they reveal. 12. In his first forensic accounting report, dated 4 December 2009, Mr Woolford came to the conclusion that repayment in respect of input tax was owed to Ocean Developments Limited and Sea Island Holdings in the sum of £4,971. He reached that conclusion on the basis of a letter from a Mr Terry Gordon, then an associate of Ove Arup, contained in a letter dated 17 July 2009, in which he estimated a figure of £350,000 per acre in respect of what he described as a complex type of site remediation. Thus remediation costs for 24.94 acres at £350,000 per acre gave rise to input tax of £1,527,575, less a figure recorded in Sage between 1 October 1999 and 31 December 2002 of £87,917. 13. The response of the chartered accountant, Mr Rakesh Aggarwal, on behalf of HMRC, raised questions as to the dates when remediation work had taken place. Mr Aggarwal pointed out that Mr Woolford’s report of 4 December 2009 did not take into account the fact that demolition works started before 10 March 1999 and thus input VAT may have been reclaimed on remediation costs incurred before 30 September 1999. 14. In his response dated 4 February 2010 Mr Woolford records Ove Arup’s confirmation that substantial remediation work was undertaken between October 2000 and October 2001 and a certificate was issued on 2 July 2002. Furthermore, witness statements from those present during remediation work include repeated references to a large number of machines on site between 2000 and 2003. 15. We are prepared to accept that remediation work did continue during the period identified by Mr Woolford. But there is a far more significant difficulty with the substance of Mr Woolford’s report. The report, as we have pointed out, is based upon a letter from Mr Gordon of Ove Arup dated 17 July 2009. He emphasises that Ove Arup has no knowledge of the contract costs but estimates a figure of at least £350,000 per acre. Mr Gordon could not give evidence and has left employment due to ill health. Mr Woolford, however, was unaware and, apparently, remained unaware up to the hearing of the application of a letter from Mr Gordon dated 22 May 2002 estimating reclamation costs of between £100,000 - £150,000 per acre. The mystery is compounded by a further letter from Mr Gordon dated 9 September 2003 which suggests that remediation to part of the site was successfully carried out “in house” by the applicant which afforded potential cost savings and estimated the cost of the remediation of the Dumballs Road site, Cardiff, at £100,000, that is, approximately £20,000 per acre. On the basis of those figures, on which Mr Woolford had no opportunity to comment, there would have remained a liability for output VAT to HMRC of either £1.17m, £937,929, or £1.5m. 16. Mr Woolford counters that suggestion by reference to witness statements from sub-contractors. Those sub-contractors confirm expenditure of £945,941. That expenditure is not to be found in any bank payments recorded, nor in any expenditure included in Sage. 17. On the basis of that evidence Mr Clegg QC suggests that whether it is possible to prove that the total of unclaimed VAT extinguishes the liability to output tax is beside the point. Once evidence has emerged of unrecorded expenditure and unclaimed input tax of more than insignificant sums it is possible to demonstrate an evidential foundation for the applicant’s belief. Had the jury been aware that there was unrecorded and unclaimed expenditure in respect of which input tax could have been but was not claimed then a jury might have taken the view that the applicant had not behaved dishonestly. The jury had, after all, acquitted the applicant on the other two counts. 18. There seem to us insuperable difficulties in relying upon what has now emerged in Mr Woolford’s report. 19. We leave aside the legal difficulty of which Mr Bowles asserts he was ignorant. There could have been no legal basis for claiming input tax incurred by the Ocean Developments Limited VAT Group to offset the output tax liability of a different VAT group, namely, the Sea Island Holdings Group. Let it be assumed, however charitable the assumption, that Mr Bowles believed that Sea Island Holdings could claim repayment in respect of the by now unregistered Ocean Developments Limited Group’s input tax. 20. There are, however, a number of substantial questions to which Mr Woolford’s report give rise. Foremost amongst those arises from the cost of work which would have had to be incurred in order to give rise to the amount of £1.5m input VAT for which the applicant contends. If the cost of remediation gave rise to figures of that order then the net remediation costs would be in the region of £8.9m. That is a VAT inclusive figure of £10.4m. HMCE have obtained details of all known bank accounts through which such sums might have been paid. Mr Woolford reports that substantially all sub-contractor payments were made from Cardiff bank accounts. Mr Aggarwal discovered a total of only £117,832 which could possibly relate to payments for remediation costs not recorded in the Sage records. Thus there has never been and remains no evidence whatever to demonstrate that those sums were paid on behalf of Ocean Developments Limited or any associated companies. There is not now and there never has been evidence of any payments which can be shown to be payments for remediation work such as give rise to an entitlement to input VAT repayment. It is startling that even at the stage of the adjourned application no such evidence or material or even a hint of such material in the form of an unknown bank account or bank accounts has been forthcoming. 21. Further problems remain unexplained. Whilst it is true that the applicant seemed to be intent on obtaining a forensic accounting report, there has never been any explanation as to why he did not approach any sub-contractor to give evidence at his trial to make good his claim that he had incurred input VAT which had not appeared in a Sage account and which had not been claimed from HMCE. When it became apparent that he was going to be in difficulty in obtaining such a report in time for the trial it makes it even more mysterious that he did not obtain live evidence from sub-contractors. It is equally strange that he did not seek to obtain from them copies of invoices which might have demonstrated the VAT his company had been charged. This raises a further question. There was ample evidence that, in the past, correct claims for input tax, backed by appropriate invoices, had been made. The applicant was not unaware of the requirement to support any claim for VAT and had demonstrated his knowledge of the requirements of the legislation. The VAT return history of the Ocean Developments Group during 1999 shows a significant number of input tax claims. For the 9 months to September 1999 Ocean Developments Limited claimed £204,868. The evidence of Jane Wyborne, the accountant employed as financial controller for the Sea Island Group, demonstrates the involvement of the applicant in the preparation of the VAT returns. She told the jury that the applicant had said to her that she was not to communicate with the PAYE or VAT authorities without him. She had discussed with him VAT returns. When she advised him that returns had to be submitted whether details of input payments were available or not, he had said that he believed that the returns did not need to be submitted and he refused to sign them. 22. Jane Wyborne told the jury that the applicant devised a strategy to deal with “easy VAT returns” which the applicant would sign off. The applicant had recognised that problems lay with the two returns on which large sums of money were owed. She had copied a letter she had written to the applicant dated 4 November 2004 because she was concerned. She had told him that he needed to deal with and sign the returns; she had completed the original VAT return for the period ending March 2004 so that he could complete it in her absence. She had told the applicant that the returns were correct and that the figures would not alter. She had told him in that letter that Sea Island Holdings owed £1,227,646.60. She attached a letter in draft to Mr Aulak of HMCE stating that all purchases in the return for the period 03.04 related to physical work done on the land. She told the jury that every decision had to go through the applicant. She told the jury that there was no VAT repayable to the company:- “£1m was payable. £1m payable to Customs and Excise was about right. The scale was to reduce the figure by about £100,000 maximum. We had a white board in the boardroom to understand the money that was coming in and going out and the figure was always about £1.2-£1.3m and Mr Bowles always spoke of that as the VAT figure.” 23. The applicant’s own subsequent behaviour confirms his acknowledgement of the debt the company owed in respect of VAT. 24. Despite that knowledge, the evidence shows that the applicant suppressed disclosure of the sale of the land to Wimpey which gave rise to the liability of £1.3m VAT. He knew, because Jane Wyborne had told him, that the best she could do was to establish £100,000 worth of VAT inputs. She had, according to her evidence, given the applicant the opportunity to find any further invoices and she told the jury that she was surprised he did not do so. In those circumstances, there is no sensible explanation as to why, if he genuinely believed that Sea Island could claim more VAT input, he did not approach sub-contractors for invoices, either then, thereafter or at trial. 25. On the contrary, he suppressed the sale and when an estimated assessment was raised, agreed to pay the figure which at that time HMCE believed was owed. That conduct was powerful evidence of dishonesty. Nothing that we have seen in the accountancy reports now obtained can stand to undermine the inferences which can reasonably be drawn from his behaviour and which the jury clearly drew. 26. In those circumstances, we take the view that the evidence now obtained does not and could not undermine the safety of the jury’s verdict and this application is dismissed.

2010_06_25-2427.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1460/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1460

c01febd5a829414e1d2a0ee776e0ed4b081b85ceb72baf272ba6b37789ca3a36

[2008] EWCA Crim 1930

EWCA_Crim_1930

crown_court

No: 200803926 & 03949 A4 Neutral Citation Number: [2008] EWCA Crim 1930 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 30th July 2008 B e f o r e : LORD JUSTICE HUGHES MRS JUSTICE DOBBS DBE HIS HONOUR JUDGE PERT QC Sitting as a Judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - R E G I N A v (1) PEIWEN SHI (2) LI YANG - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Internati

No: 200803926 & 03949 A4 Neutral Citation Number: [2008] EWCA Crim 1930 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 30th July 2008 B e f o r e : LORD JUSTICE HUGHES MRS JUSTICE DOBBS DBE HIS HONOUR JUDGE PERT QC Sitting as a Judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - R E G I N A v (1) PEIWEN SHI (2) LI YANG - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr M Sharpe appeared on behalf of the First Appellant Mrs T J Turner appeared on behalf of the Second Appellant Mr S Hickey appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. MRS JUSTICE DOBBS: On 4th April 2008 at the York Crown Court, the appellant Shi pleaded guilty to one count of keeping a brothel used for prostitution and a second count of possession of criminal property. On 2nd May 2008 the appellant Yang pleaded guilty to the same offences and both were sentenced on 19th June by His Honour Judge Ashurst. Shi was sentenced to 21 months' imprisonment on each count to run concurrently, with a direction that the 182 days spent on remand count towards sentence. There was also a recommendation for deportation. In respect of Yang, she was sentenced to 15 months' imprisonment on each count to run concurrently. Similarly, the 183 days spent on remand was to count towards sentence and a recommendation for deportation was made in her case. These applications have been referred to the full court by the Registrar. We give leave. 2. The Crown's case was that the two appellants ran a brothel at 32 Balmoral Terrace in York from 26th August to 18th December 2007. Money obtained from the running of the brothel was the subject of the acquiring criminal property count. 3. By way of background, Shi had been given a leave to enter this country as a student and Yang was an illegal immigrant. They rented the property in question, signing the leases; Yang in a different name. Adverts were placed at a weekly cost of £100 in the North Yorkshire Times by Shi which read "Personal services for oriental flower". Council Tax and electricity were paid on Shi's debit card and over the period in question some £6,000 had been paid out of his account for rent, electricity, Council Tax, et cetera. The evidence of prostitution came from the test purchase officers who phoned the number given in the advert, to be advised by Yang of the services: £60 for half an hour and £100 for an hour. Two officers visited the premises where Yang introduced them to a prostitute called Lena. There was further evidence of Chinese girls being picked up at York railway station and taken to the brothel. Shi would visit the brothel from time to time to check on its management. There is also some evidence of Yang banking the payments. 4. Both were arrested on 17th December of last year, Yang at number 32 and Shi elsewhere. A search of the premises revealed items consistent with sexual activity. In interview Shi made no comment but gave a prepared statement saying that he had rented a massage parlour on behalf of a Mr Liang. He denied running a brothel or to arranging to take the girls in. Yang told various stories, initially denying having been to the premises apart from the day she was arrested, to say that it was a massage parlour, but eventually admitting that she had worked as a prostitute for two weeks and had made about £1,000 in that time. She denied knowing Shi. 5. There was a basis of plea entered by both, not accepted by the Crown. However, on the day of the Newton hearing Shi abandoned his basis of plea. Yang's basis was that she worked as a receptionist and prostitute on a number of occasions and she helped Shi by signing the lease, and on one occasion went to pay the takings from prostitution into the bank. 6. Shi is 26 and Yang is 34. Both were of previous good character. The Pre-Sentence Report for Shi indicated that he thought he had done nothing wrong and this was of considerable concern. However, there was a low risk of serious harm to the public. For Yang there was a low to medium risk of re-offending. 7. The judge gave credit to both appellants for their pleas and cooperation. He accepted that there was no background of coercion or threats, but noted that prostitutes from the Far East were regularly ferried from London to York to work in the brothel. Whilst he took into account the guidelines, he observed that they were not a rigid formula or a straitjacket and that deterrent sentences had to be passed to discourage other like-minded people, given the increase in the setting up of such brothels. As for deportation, he said that those who come to this country to set up criminal enterprises undermine the value of genuine visitors to the country and this is not conducive to the public good. 8. The grounds are that the sentences are manifestly excessive and that the recommendations for deportation were wrong in principle. The main points of mitigation were pleas, good character, no background of coercion and the short period of enterprise. Additionally, in respect of Yang, it was said there was limited financial gain and lesser involvement than Shi. 9. A number of authorities were drawn to our attention by both counsel for the appellants in their advice and grounds of appeal which pre-date the coming into force of the Sexual Offences Act 2003 Guidelines prepared by the Sentencing Guidelines Council which show sentences once reduced by the Court of Appeal in the range of 3 to 18 months on pleas of guilty, the top brackets involving cases significantly more serious on the facts. 10. The Crown in their skeleton argument drew the court's attention to the fact that the Sentencing Guidelines Council's Guideline on the Sexual Offences Act 2003 had come into force after the authorities focused on by the appellants' counsel, and also pointed out that the old offence of keeping a brothel carried a maximum of 6 months, whereas the maximum under this Act is 7 years. In the Crown's submission, Shi fell into the top bracket, namely having made at least £5,000 (that amount being in his bank account) and accepted by the judge at the court below, and that Yang fell into the second bracket. 11. The Guidelines identify three brackets. The top bracket is relevant to an offender who is the keeper of a brothel and has made substantial profits in the region of £5,000 upwards, with a starting point of 2 years' custody and a sentencing range of 1 to 4 years. The second bracket is where the offender is the keeper of the brothel or a person involved in its management, with a starting point of 12 months and a sentencing range of 26 weeks to 2 years. The third bracket is where the involvement of the offender was minimal where a community order is thought to be appropriate. 12. We accept the Crown's contention that Shi fell into the top bracket, which is the starting point of 2 years, but we do note the point that this case on its facts was very much on the cusp of the two brackets, although falling just into the top bracket. We also accept, and it is accepted by the Crown, that Yang fell into the second bracket with a starting point of 12 months. 13. Today counsel for the Crown drew the court's attention to the case of Veio [2008] 2 Cr.App.R(S) at page 61, number 10. It was a case where the appellant pleaded guilty to managing a brothel and possessing criminal property. The appellant ran a hairdressing salon but also offered sexual services to customers. The women concerned were not procured or coerced and were not under age. The court was unable to work out how much, in fact, had been made in that case in relation to the brothel activities and, on the basis of the plea of guilty and the fact that there were only two girls involved, neither being under age and that there was no coercion or corruption, a sentence of 18 months was reduced to 12 months to run concurrently. 14. We take the view, having looked at the facts of this case, being mindful of the guidelines, taking into account the mitigation -- including the pleas of guilty, the short duration of the offences, the previous good character, that this was the appellants' first sentence of imprisonment -- that the sentences were too high. In the case of Shi we consider that the appropriate sentence is one of 16 months' imprisonment and in the case of Yang, one of 10 months' imprisonment. In relation to Shi the 182 days served in custody should count towards the sentence and in relation to Yang the 183 days already served should be taken into account. 15. We turn now to the question of the recommendations for deportation. The submission, in short, is that the offences are not serious enough to warrant a recommendation and that it was wrong in principle for one to have been made. The test is whether the continued presence of the defendant is to the detriment of the country or community. It is in the judge's discretion whether or not to make such an order, having considered all relevant circumstances. The focus is on the expected future behaviour, taking into account the offence, previous record and other relevant circumstances. The principles that counsel for the appellant say can be derived from the authorities are as follows: that a recommendation should not be made for an isolated offence, and that it should not be made merely because the offence is a serious offence. It is said on Shi's behalf that, despite his lack of remorse, he must have learned from the sentence imposed on him that this kind of behaviour is not approved of and thus he presents no future risk. In relation to Yang, it is submitted that the assessment of low to medium risk in the Pre-Sentence Report should be taken into account and also there is the deterrent element of the sentence as being a factor that can allow the court to find that there is no risk. 16. There is nothing wrong in principle with making a recommendation for deportation in relation to an offender of previous good character where the offences involved are serious and of a deliberate nature (see the important case of Nazari 71 Cr.App.R 87). In Yang's case it has been argued that she faces problems in her home country of China, but that is something which these courts here need not concern themselves within relation to a recommendation. Such matters are for the Secretary of State. Both appellants, although not assessed as a high risk of re-offending, were assessed as a risk. Shi thought he had done nothing wrong. Yang was assessed as low to medium risk, but one has to put that in the context that she is unable to work legally in this country and that must be relevant to risk. 17. Not only are the offences serious, as the judge found, both were involved in a commercial enterprise which encourages the influx of illegal immigrants and thrives on the use of them, extracting substantial profit for those who carry out the services. Even though we have reduced the sentences passed by the trial judge, we do not consider that he erred in making the recommendation for deportation. Whether it is acted upon is entirely a matter for the Secretary of State. 18. The appeals are allowed to the extent already indicated, namely that the sentences of imprisonment will be quashed and a sentence of 16 months substituted in the case of Shi imposed, with 182 days on remand, and 10 months in the case of Yang with 183 days on remand. The recommendations for deportation will stand.

2008_07_30-1614.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1930/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1930

a60293873f5b88fe6619d7f0f86bec2f7c5b4d3b81b96cacf228ad596eeb862e

[2017] EWCA Crim 2064

EWCA_Crim_2064

crown_court

No: 201704332/A1 Neutral Citation Number: [2017] EWCA Crim 2064 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 3 November 2017 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GREEN HIS HONOUR JUDGE AUBREY QC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - R E G I N A v THOMAS ZACHARY PARISH MICHAEL AARON REDFORD - - - - - - - - - - - - - - - - -

No: 201704332/A1 Neutral Citation Number: [2017] EWCA Crim 2064 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 3 November 2017 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GREEN HIS HONOUR JUDGE AUBREY QC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - R E G I N A v THOMAS ZACHARY PARISH MICHAEL AARON REDFORD - - - - - - - - - - - - - - - - - - - - Mr J Polnay appeared on behalf of the Attorney General Mr S Reiz appeared on behalf of the Offender Parish Mr M Morris appeared on behalf of the Offender Redford - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. LORD JUSTICE HOLROYDE: On 29th August 2017, in the Crown Court at Inner London, Thomas Parish and Michael Redford, aged 19 and 24 respectively, pleaded guilty to an offence of conspiracy to transfer prohibited firearms, contrary to section 1(1) of the Criminal Law Act 1977. On 31st August 2017 Thomas Parish was sentenced to detention for 5 years in a young offender institution and Michael Redford was sentenced to 5 years 6 months' imprisonment. 2. It appears to Her Majesty's Attorney-General that those sentences were unduly lenient. He applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so the sentencing may be reviewed. We grant leave. 3. The relevant facts are summarised as follows in the reference. On 15th March 2017 the offenders travelled together by car from Farnborough to Slough. There they picked up three Atak eight-shot revolvers; two Ekol Arta five-shot revolvers; a total of 322 live rounds of ammunition, comprising 194 rounds which were suitable for use in the five-shot revolvers and 128 which were suitable for use in the eight-shot revolvers; and a single fired round. 4. Automatic number plate reader cameras showed that the offenders then travelled in convoy behind a white Mercedes, from Slough to London Bridge. At London Bridge, the time now being about 10.30 at night, armed police officers attempted to stop the offenders' vehicle. Parish was driving and Redford was in the front passenger seat. Parish drove through a red traffic signal and stopped. Redford left the vehicle and ran into London Bridge Station. He was not arrested until about eight days later. Parish was detained at the scene. 5. Police searched the car and recovered the firearms and ammunition to which we have referred from inside two distinctive plastic bags with a black and gold striped pattern. One of these bags was underneath the front passenger seat, the other was in the rear nearside footwell. 6. Examination of the revolvers showed that all five were prohibited weapons, within section 5(1)(aba) of the Firearms Act 1968. Given the calibre of ammunition which they fired they were said to be relatively low powered. They did however nonetheless discharge projectiles with lethal force. 7. The live rounds were, as we have said, all suitable for use in one or other of the two types of revolver. Fingerprints of both the offenders were found on both the inside and the outside of the plastic bag which was under the front passenger seat. Three of the revolvers were wrapped in tape. From that tape a DNA profile was recovered which matched a man to whom we will refer simply as "K". K was arrested in July 2017 by the National Crime Agency following the discovery of 79 handguns which had been concealed in engine blocks to be imported into the United Kingdom. When K was arrested he was in possession of keys, which fitted a trailer in Slough. Officers of the National Crime Agency arrested two men seen driving away from that trailer and nine Ekol Arta pistols were recovered on that occasion. They were contained in black and gold striped plastic bags, identical to the ones found when these offenders were stopped. In the trailer there were more black and gold plastic bags. 8. Reverting to the facts of the present case, Parish was interviewed under caution. His initial story was that he had been driving a friend called Michael Smith to London, so that Smith could collect some money which he was owed. Parish said that he would be paid £100 for doing this. He said he collected the money from an address in Bethnal Green and did not know how bags containing weapons had got into his vehicle. Later, he changed that story and said that Redford had brought the two bags into the car when they stopped in Bethnal Green. He said he did not know what was in the bags but assumed it was either drugs or money. 9. Redford, for his part, told the police before formal interview began that he was going to admit possession of the firearms. He did not however do so. Having been cautioned he answered "no comment" to all questions. 10. The offenders made their first appearance before the Crown Court on 19th April 2017. They were arraigned on an indictment charging them jointly with nine offences, contrary to section 16 of the Firearms Act 1968. Five of the counts alleged possession of a firearm with intent to endanger life, there being one count in relation to each of the revolvers recovered. The other four counts were of possession of ammunition with intent to endanger life, there being one count in relation to each of the different makes and calibres of cartridge which were recovered. 11. Both the offenders pleaded not guilty to all charges. By the time of that plea and trial preparation hearing, the fingerprint evidence had already been served. The issues were identified by counsel as follows. On behalf of Parish, it was said that he had no knowledge of the firearms and denied possession of them. He may have touched the plastic bag found in the passenger footwell during the police pursuit. Parish later went on to serve a defence statement in which again he denied possession of the firearms and ammunition. On behalf of Redford the issues were identified as being knowledge/possession. It was said by counsel on his behalf that his presence in the car was accepted, but the guns had nothing do with him and if any fingerprint of his was on the bag it was "inadvertent/innocent". Further pre-trial hearings took place on 4th May, 30th May and 6th June 2017. The trial was fixed for 29th August. 12. In June those representing Redford contacted the prosecution to enquire whether a plea to simple possession of the firearms would be acceptable. Unsurprisingly, they were told that it would not. Later in June, Redford's lawyers again contacted the prosecution, this time inquiring whether a plea of guilty to an offence or offences contrary to section 16A of the Firearms Act 1968, possession of the firearms with intent to cause fear of violence, would be acceptable. Again, they were told that it would not. Redford then served a defence statement in which he said that the firearms and ammunition found in the car had been in the sole possession of Parish. Thus in the run up to the trial, both offenders were denying guilt of any offence and to an extent blaming each other. 13. On the day fixed for trial it was known to the parties that the Crown intended to apply for leave to amend the indictment by adding counts of simple possession of each of the firearms and of the ammunition. It was clear to all that guilty pleas to those counts would not be acceptable, but they would clearly have served the purpose of spelling out precisely what was to be in issue at trial. Later in the day the prosecution were given leave to amend the indictment by adding count 10, the charge of conspiracy to transfer prohibited firearms. The offenders were arraigned on that count and pleaded guilty. 14. The circumstances surrounding that amendment and arraignment are important. Unfortunately, they were not set out with complete clarity in the Reference. Having heard helpful oral submissions from all counsel, we now understand the following to have occurred. In the course of the morning, as is often the case, there were discussions between counsel, on a provisional basis, as to whether possible guilty pleas to possible offences would be acceptable by the prosecution. In the course of that process, but before any decision had been made even as to a specific charge which might be added to the indictment, still less as to whether guilty pleas would be entered to it, it appears that there was a hearing before the learned judge. 15. At that hearing counsel for one of the offenders enquired of the judge, in what are acknowledged to have been very general terms, whether the judge would afford full credit if a new count was, for the first time, added to the indictment and the offenders pleaded guilty to it. The learned judge indicated that in such circumstances full credit would be given. Discussions between counsel thereafter continued. The end result of those discussions was that it became apparent, that if the offenders were to plead to what became count 10, their pleas would be accepted and other counts would in due course be left to lie on the file. That is what happened. 16. We pause to observe, with respect to the learned judge, that this was a highly unsatisfactory position. This was not an application for a Goodyear indication, which would have been addressed with appropriate formality. Instead it was a wholly unspecific enquiry, about whether full credit would be given for any plea to any new count. On the face of it that broad enquiry could have encompassed a plea to a new count of simple possession, even though the offenders had been denying possession for the last several months. 17. It seems to us that in those circumstances it was simply wrong for the judge, with all respect to him, to give the indication he did, in ignorance of what precisely might happen. However, he did give that indication. He gave it in response to the question asked of him of defence counsel. He gave it without inviting prosecuting counsel to make any submission or to contribute one way or the other. In the event, prosecuting counsel did not say anything at the stage when that indication was given. 18. Following the amendment of the indictment and the guilty pleas to which we have referred, the case was adjourned for a short time, in particular to allow an opportunity for those representing Parish to obtain character references and for the prosecution to provide a written note for sentencing. Such a note was provided. It helpfully set out the relevant considerations, but it said nothing at all on the issue of credit for guilty pleas. We have seen a sentencing note submitted in advance of the sentencing hearing by Mr Reiz, who then, as now, acted for Parish. In that note he submitted that in the circumstances in which the pleas had been entered full credit for them should be given. There does not appear to have been any explicit contradiction of that stance by prosecuting counsel, who perhaps felt that the matter had happened without any opportunity on his part to contribute and that it was too late now for him to say anything about it. 19. We come then to the sentencing hearing on 31st August 2017. Parish had been just 19 at the time of the offence. He had three convictions for four offences, none of which was particularly serious and none of which meaningfully aggravated his culpability for the present offence. He was able to put before the court a number of impressive character references, including from family and friends. On his behalf, it was submitted in mitigation that he had agreed to transfer the firearms because it represented a quick and easy opportunity to make some money. Redford was 24 at the time of the offence. His criminal record was markedly worse. He had 71 convictions, for offences predominantly of dishonesty. He had in 2013 received a sentence of 3 years' detention for an offence of conspiracy to burgle. He had received a further sentence of 18 months' imprisonment in April 2016 for a further offence of conspiracy to burgle and he was in due course to receive a sentence of imprisonment for handling stolen goods. He was on licence at the time when the offence with which we are concerned was committed. On his behalf also it was submitted that he had committed the offence because it was an opportunity to make some money. 20. At the sentencing hearing prosecuting counsel referred the learned judge to the familiar case of R v Avis [1998] 1 Cr App R 420 and to Attorney-General's References Nos 128-141 of 2015 and Nos 8-10 of 2016 [2016] EWCA Crim 54 , to which we shall hereafter refer for convenience as “ Stephenson ". The case of Stephenson included consideration of the cases of a number of offenders, and prosecuting counsel particularly drew the judge’s attention to the sentence of 16 years' imprisonment which the Court of Appeal had concluded would have been appropriate after trial for the offender, Ducram. He took the judge to what was said by the court at paragraph 7 of Stephenson , and submitted that in the terminology used in that paragraph, these offenders were facilitators who had played a significant role, putting five prohibited weapons and over 300 live rounds into the hands of criminals knowing that the weapons would be used for the purposes of crime. Mr Reiz, in addition to representing Parish in these proceedings, had been involved, we understand, on behalf of one of the offenders in the case of Stephenson . He therefore had particular knowledge of the case and he draw to the judge's attention a number of features which he submitted made Ducram an inappropriate comparator in the present case. He made submissions about the comparatively low power of the revolvers, the character references and the youth and immaturity of Parish. He pointed out that this would be Parish's first custodial sentence. He invited the judge to treat Parish as one who had been performing a limited function under direction. 21. On behalf of Redford, Mr Morris submitted similarly that the role was a limited one, fairly described as a "one-off courier". He submitted that in terms of paragraph 7 of Stephenson , Redford should be treated as one of those who assisted in putting guns into circulation and so should be sentenced in the range of 8 to 12 years before credit was given for his plea. 22. The learned judge, in his sentencing remarks, indicated that he had taken into consideration the testimonials and the letter which Redford had written to the court. He considered the questions posed by Avis and identified the following features as relevant: "(i) What sort of weapon was involved? In this case five prohibited weapons and three hundred and twenty-two live rounds of ammunition for use with the guns. (ii) What use, if any, was made of the firearms? The weapons and ammunition were being delivered by you to other criminals. What precisely they were going to do with them is unknown but I assume it would be unlawful. (iii) With what, if any, intention did the defendants possess the weapons? Your intention was to provide the weapons and ammunition to other criminals for them to use in the furtherance of crime in return for a reward. (iv) What are the defendants' records? I have dealt with this but neither of you, I repeat, has a previous conviction relating to firearms. (v) Where was the firearm discharged and who and how many were exposed to danger by its use. The answer to this is unknown. It is known that one fired cartridge was found within the ammunition recovered so this is neutral, as I have already said. (vi) Was any injury or damage caused by its discharge and, if so, how serious was it? Again, the answer to that is unknown so that is also neutral." 23. The learned judge went on to refer to Stephenson . In passing sentence, at page 17B, he said: "You both knew that these were firearms and ammunition that you were conveying and that they were capable of being used and were going to be used by someone, not just for private collection but as part of a criminal enterprise. I accept that you were carriers - mules you would be called if one was talking about drugs - but you were the people who assist the real villains of society to carry on their evil enterprises. Without people like you, firearms would not move as freely around the streets as they do. You are the otherwise innocent stooges who have been caught while the real villains carry on in the background until somebody gets shot, then it is very much in the foreground. I accept, because it was a one-off exercise on your part, you were not facilitators and I can distinguish you from the case of Ducram to which I have been referred in the case of Stephenson . But you undoubtedly assisted the suppliers and recipients of these firearms by transporting them." At page 17G the judge continued: "Because of your youth and personal mitigation, bearing in mind what the Lord Chief Justice said in the case of Stephenson , that the starting point could not be less than 8 years, and also bearing in mind the number of firearms and quantity of ammunition involved, I have taken a starting point of 9 years for each of you as I consider your criminality in the offence to be equal. Taking into account your guilty plea to this charge at the first opportunity, that is to say when it was put on the indictment on Tuesday, I am prepared in each case to reduce that sentence by one-third to 6 years. You, Parish, are lightly convicted and are only 19 years old. I am therefore prepared to reduce your sentence by a further 12 months to 5 years. Any time you have spent on remand will count towards that sentence. You, Redford, are 24 and have serious previous convictions although not for firearms offences. For your personal mitigation I am prepared to make a reduction from the sentence by 6 months. That makes 5 years and 6 months. Again, any time spent on remand will count towards that sentence." 24. On behalf of the Attorney General, Mr Polnay submits that the sentences were unduly lenient. He identifies the following aggravating features: the number of firearms; the quantity of ammunition; the fact that the offenders were involved in distributing both firearms and ammunition together; the fact that the firearms were of a prohibited type for which there is no lawful use; the proximity of this activity to the source of importation, as evident from the circumstances we have summarised relating to K; the fact that Redford was on licence; and the fact that both offenders acted for financial gain. 25. As to mitigating factors, he identified the fact that the weapons were neither semi-automatic nor high powered, Parish's age and comparative lack of previous convictions, and the offenders' pleas of guilty. He referred to case law emphasising the gravity of gun crime and the need for deterrent and punitive sentencing. He cited passages from Stephenson . In particular, he referred to the following passages from the judgment given by the Lord Chief Justice in that case. In paragraph 7 the court had identified three categories of offender and in relation to the least serious category the Lord Chief Justice said that: "The role played by those who assisted in these transactions varied, but as Parliament has stipulated a minimum sentence of 5 years for those in possession of a gun, we consider that it was inappropriate to pass sentences with a starting point of less than 8 years for those who assisted in putting guns into circulation. Their criminality lay in assisting in putting guns and lethal ammunition into the hands of a purchaser. Sentences materially greater were required in cases where the assistance was significant; in the present case the sentences should have ranged from 12 to 8 years, depending on the role they played and any previous association with guns." 26. Helpful written responses were submitted to the court on behalf of each offender contending that the sentences may well have been lenient but that they were not unduly lenient. On behalf of each offender, it is submitted that the judge's starting point of 9 years was appropriate because the circumstances fell within the category identified by the Lord Chief Justice in Stephenson , to which we have just referred. 27. A distinct issue arises as to the credit given for the guilty pleas. Mr Polnay, in his written submissions, contended that full credit should not have been given having regard to the circumstances in which the pleas were entered. Counsel on behalf of both offenders submit that the giving of full credit was within the discretion of the judge. In particular, it is submitted on behalf of the offenders that the circumstances in which the indication was given by the judge amounted to an incentive to the offenders to enter the guilty pleas which they then did enter. 28. The overall submission, on behalf of the Attorney-General, can be summarised as follows and serves as a useful introduction to our consideration of the issues. First, Mr Polnay argues that having regard to the number of weapons, the quantity of ammunition and the fact that transfer was being made for financial reward to criminals the judge should have started higher than a 9-year sentence. Secondly, the judge was then incorrect to allow full credit for pleas of guilty entered on the day of trial, given that the offenders had up to that point, including in their defence statements, denied even possession of the weapons. In addition, on this second issue, Mr Polnay points out, correctly, that the judge should have made any reduction for mitigating factors before applying credit for guilty plea and not, as he in fact did, the other way round. Thirdly, Mr Polnay submits that insufficient weight was given to the fact that Redford offended whilst on licence. 29. Stepping back from the details Mr Polnay makes this simple submission. Had either of these offenders been found in simple possession of a single prohibited firearm, even unaccompanied by ammunition, the effect of the relevant statutory provisions would have been a mandatory minimum sentence of 5 years. For what they in fact did in relation to numerous weapons and rounds of ammunition, they received sentences which were not significantly greater than that mandatory minimum. 30. We begin by reminding ourselves that in cases to which section 51A of the Firearms Act 1968 applies, Parliament has indeed stipulated that the court must impose a minimum sentence of 5 years' custody, unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify its not doing so. It is to be noted that the offences to which section 51A applies include simple possession of a prohibited firearm and that no reduction may be made for a guilty plea, if it would reduce the sentence below the minimum level of 5 years. Section 51A applies to a substantive offence of transferring a prohibited firearm, contrary to section 5(2A) of the 1968 Act. It does not apply to an offence of conspiracy to transfer a prohibited firearm. However, as this court has made clear in a number of cases, section 51A is a Parliamentary indication of public concern. The reason for that public concern is obvious. It was stated as follows, by Lord Judge (the then Lord Chief Justice) in the case of Wilkinson [2009] EWCA Crim 1925 at paragraph 2: "The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community." 31. That same public concern has a considerable impact on sentences for an offence of conspiracy such as this. The judge was therefore correct for say in his sentencing remarks that he would bear that point in mind. 32. In Stephenson , in which all the offenders had either pleaded guilty to or been convicted of offences of conspiracy to transfer prohibited weapons, this court stated that the sentences for such offences must reflect the hierarchy of the supply enterprise, the role played in individual transactions and any previous conviction in relation to guns. 33. In the circumstances of that case the court identified three levels of the hierarchy. The leaders of the criminal enterprise which was in the business of supplying guns and lethal ammunition, for whom a very long term of imprisonment was required, with 25 years not to be regarded as a maximum. Secondly, those who sought to buy a gun and ammunition, by clear inference for the purpose of killing, wounding or terrorising in the course of crime, for whom sentences in the region of 15 years were appropriate even if there had been no previous firearms related convictions. Thirdly, those who assisted in the transactions, for whom a sentence in the range of 8 to 12 years would be appropriate as we have already cited. 34. Counsel in their very helpful oral submissions to us this morning have invited consideration to the sentences held to be appropriate in relation to a number of the individual offenders in the case of Stephenson . As counsel already recognised, every case is fact-specific and there is a limit to how much the court can be assisted by looking at the positions of other individual offenders. We should however mention the offender, Ducram, who was referred to by the judge in his sentencing remarks. He had some previous conviction which were not regarded as aggravating his offending. He was in close contact with the principal offenders and was highly trusted by them. He had stored a gun overnight at his home and then delivered it to a purchaser. The court regarded the appropriate sentence in his case, after a trial, as one of 16 years. 35. We would also mention the case of the offender, Ghalib. He had been involved in a transaction relating to a particularly lethal weapon, a sub-machine pistol and ammunition. He had many previous convictions including for supplying drugs but none in relation to firearms. The court found that in his case the appropriate sentence after trial should have been 8 years' imprisonment as follows: "In our judgement, the appropriate sentence for the firearms offence should have been 8 years as he was knowingly involved in a transaction that would put a gun on the street, though he did not know that the firearm was a particularly dangerous weapon capable of automatic fire and played a limited role." 36. We do not think it necessary to go into the details of the cases of other offenders, but we have taken into account the submissions made by counsel. 37. We accept that in the present case the offenders, neither of whom has any firearm-related previous conviction, were engaged as couriers to deliver the consignment of revolvers and ammunition. They acted under direction for financial reward measured in hundreds rather than thousands of pounds. We think it reasonable to infer that they were under the watchful supervision of those in the Mercedes. They were not therefore in the position of being highly trusted by the principal offenders and on that basis alone their positions can be distinguished from that of the offender Ducram in the case of Stephenson . 38. Further, their role in delivering the guns and ammunition was one step further removed from criminal use of any gun than a purchaser would be, and they can therefore be distinguished from the purchasers for whom a sentence in the region of 15 years would be appropriate. However, their role was a very important one, because they were delivering the weaponry which was plainly destined for use in criminal activity. By their pleas they admitted relevant knowledge, and we bear in mind that the packages containing this weighty consignment of guns and ammunition were on the floor of the car in which the offenders were travelling. They must have known that the only reason anyone would want to buy these weapons and ammunition would be so that criminals could use them to kill, wound or terrorise in the course of crime. Most importantly, they were delivering no fewer than five revolvers and 322 live rounds of ammunition. True it is that that within the overall scale of firearms, these were regarded as being comparatively low powered; but they were nonetheless lethal weapons, capable of killing with any one of the 322 bullets. The number of prohibited firearms and the quantity of live ammunition are therefore gravely aggravating features because each gun and each bullet has the potential to kill or wound in the course of crime. 39. We acknowledge the point made by counsel on behalf of the offenders, that in the context of offences which attract the statutory minimum sentence, the effect of the statutory provisions may be that an offender whose crime is more serious, but who pleads guilty, receives a sentence which is not much different from that of a less serious offender who must receive the minimum 5-year sentence. But here, the quantity of guns and ammunition is such that a substantial sentence would have been necessary after trial. In our judgment, the appropriate sentence after trial for these offenders was at the upper end of the range specified for the third category in Stephenson . 40. We next consider the personal mitigation. With respect to the learned judge, he was wrong to leave this consideration until last. The correct sequence is to determine what would be the appropriate sentence after trial, taking into account all aggravating and mitigating features, and then, as a final step, to make any reduction which is appropriate for a guilty plea. 41. We agree with the judge that there was personal mitigation available to both offenders though it could carry only limited weight in the context such serious offending. We also agree with the judge that Parish had rather stronger personal mitigation than did his older and more heavily convicted co-accused who was on licence at the time. 42. Taking into account all the aggravating and mitigating features, we conclude that if these offenders had contested count 10 at trial, the appropriate sentences would have been not less than 11 years in Parish's case, and not less than 12 years in Redford's case. It follows that the judge took far too low a sentence after trial when he started at 9 years and reduced that term by 12 months in Parish's case and by 6 months in Redford's case. 43. We turn next to consider what reduction should have been made from those sentences to reflect the guilty pleas. The Sentencing Council have recently introduced a Definitive Guideline on this topic and we hope and expect that application of it will help to avoid the unsatisfactory situation which, as we have indicated, arose in this case. That guideline however does not apply here because of the dates on which these offenders made their first appearance before the court. The judge should therefore have had in mind section 144 of the Criminal Justice Act 2003, the earlier Definitive Guideline issued in 2007 by the Sentencing Guidelines Council and the guidance given by this court in R v Caley & Ors [2012] EWCA Crim 2821 . 44. Section 144 provides, so far as material: "(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence ... a court must take into account— (a)the stage in the proceedings ... at which the offender indicated his intention to plead guilty, and (b)the circumstances in which this indication was given." 45. The applicable sentencing guideline makes clear at paragraph 4.3, that the level of reduction should reflect the stage at which the offender indicated a willingness to admit guilt to the offence for which he is eventually sentenced. The guideline points out that the largest recommended reduction will not normally be given unless the offender indicates his willingness to admit guilt at the first reasonable opportunity, examples being given in annex 1 of when that opportunity would arise. The guideline goes on to indicate that where the admission of guilt comes later than the first reasonable opportunity, the reduction for a guilty plea will normally be less than one-third. 46. Annex 1 says at paragraph 3 that the first reasonable opportunity may be the first time that a defendant appears before the court and has the opportunity to plead guilty, but the court may consider that it would be reasonable to have expected an indication of willingness at an earlier stage - perhaps while under interview. The court referred to that guideline in Caley and at paragraph 14, said: "There is sometimes confusion in argument between (i) the first reasonable opportunity for the defendant to indicate his guilt and (ii) the opportunity for his lawyers to assess the strength of the case against him and to advise him on it. It is obvious that the second depends on the evidence being assembled and served. The first, however, frequently does not." The court went on to say that in many cases, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence, he does not require it in order to know whether he is guilty or not. 47. In the present case, neither offender gave any meaningful indication of any level of guilt until the day of trial. They knew what they had done. They would no doubt have needed legal advice as to the legal ingredients of the offences with which they were charged or might be charged. But they did not need a lawyer to advise them that they had conveyed a number of revolvers and a quantity of ammunition to London for reward. Far from indicating any guilt, they denied even knowledge or possession and sought to blame each other. The closest Redford came to making any admission was to enquire whether the prosecution would accept a guilty plea which in fact significantly understated his true criminality. Parish did not initiate any discussion at all. In those circumstances, the mere fact that count 10 was only added on the day of trial does not mean that full credit must necessarily be given. In our judgment, each offender could reasonably have been expected to have indicated, at a much earlier stage, that they had knowingly carried guns and ammunition. They were not of course obliged to make any such admission; but having chosen not do so, they could not, in our view, expect to receive full credit when they eventually pleaded guilty to a new count containing a specific legal description of their conduct in terms which included the element of possession which they had hitherto denied. 48. We recognise that the judge, applying the former Sentencing Guideline, had a discretion. But in our view, no proper exercise of that discretion could have led him to give full credit. We do not think any reduction greater than 20%, or at the very most 25%, could properly be given. 49. We must however now turn to consider whether in the particular circumstances of this case, these offenders should nonetheless receive full credit because the judge told them they would and they entered their guilty pleas on that basis and in that understanding. 50. A number of decisions of this court have made it clear that a judicial indication as to level of sentencing is not in itself a necessary bar to this court subsequently deciding that a sentence passed in accordance with that indication was unduly lenient. However, when a judicial indication is given which presages an unduly lenient sentence, prosecuting counsel has an important role. 51. In Attorney General's References Nos 8, 9 and 10 of 2002 [2003] 1 Cr App R(S) 272, this court said: "We consider that where an indication is given by a trial judge as to the level of sentencing, and that indication is one which prosecuting counsel consider to be inappropriate, or would have considered to be inappropriate, if he or she had applied his mind to it, prosecuting counsel should register dissent and should invite the attention of the court to any relevant authorities ... otherwise if the offender does act to his detriment on the indication which has been given, this court may find it difficult to intervene in response to a Reference made by the Attorney General." In Attorney General’s Reference No 19 of 2004 [2004] EWCA Crim 1239 , this court confirmed that principle, saying at paragraph 21: "It is undoubtedly right that if the prosecution has acted in ways in which it could be said that it had played a part in giving the offender the relevant expectation, then clearly it would not be appropriate for this court to permit the Attorney General to argue that the sentence which was imposed, partly as a result of what the prosecution had said or done, was unduly lenient. But we have, it seems to us, to look in the light of that principle at the facts of each particular case..." 52. Applying those principles to the present case, we reach the following views. First, as we have said, we think it very regrettable that the indication was given in response to a wholly non-specific enquiry about any charge which might at some future stage be added to the indictment. 53. Next, the circumstances in which that indication was given placed prosecuting counsel in a difficult position. Not having been invited to make any submission, and the indication having immediately been given in response to defence counsel's enquiry, we can well understand why counsel may have felt unable then to intervene. Next, we can also understand why over the next two days counsel continued to feel unable to intervene, though we do note in this regard that Mr Reiz's sentencing note spelled out in black and white, that the court would be invited to give full credit for the guilty plea. 54. Lastly, but most importantly, we see considerable force in defence counsel's submission that in the particular circumstances of this case the indication provided some incentive for these offenders to plead guilty. We have reflected carefully on this point. We bear very much in mind these were offenders who had delayed making any admission whatsoever, until the door of the court on the day of trial. Nonetheless, it must, in our judgment, be recognised that the count to which they ultimately pleaded guilty did differ materially from the counts which up to that point had been on the indictment, in particular because count 10, in contrast to counts 1 - 9, did not allege an intent to endanger life. 55. With some reluctance we feel ourselves driven to the conclusion that in the particular circumstances of this case, it would be an injustice for this court now to deprive the offenders of the full credit which they were afforded by the judge. We repeat our expression of hope, that proper application of the current Sentencing Guideline on Reductions for a Guilty Plea will avoid any repetition of the situation which arose here. 56. Drawing these threads together our conclusions are as follows. The sentences imposed below did not properly reflect the seriousness of the crime. We are satisfied that in each case they were unduly lenient. In our judgment, the sentence in Parish's case should not have been less than 11 years after trial. Giving him full credit for his plea, for the specific reasons which we have explained, that results in a sentence of 7 years 4 months. 57. In Redford's case the sentence should not have been less than 12 years after trial. Granting him also full credit for his plea, that produces a sentence of 8 years. 58. We therefore grant the Reference of Her Majesty's Attorney General. We quash the sentences imposed below. In the case of Parish, we substitute a sentence of detention in a young offender institution for 7 years 4 months, and in the case of Redford, we quash the sentence imposed below and substitute for it a sentence of 8 years' imprisonment.

2017_11_03-4097.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2064/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2064