Datasets:

JuDDGES

/

en-court-raw

like 0

e19dbf9a680e1f01f8fcb054a664b6cc49eba1a23796d3414feb56c85e23e170

[2023] EWCA Crim 453

EWCA_Crim_453

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 453 No. 202300517 A1 Royal Courts of Justice Tuesday, 4 April 2023 Before: LORD JUSTICE WILLIAM DAVIS MRS JUSTICE COCKERILL MR JUSTICE JOHNSON A REFERENCE BY HIS MAJESTY’S SOLICITOR GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 REX V THOMAS TIMPSON REPORTING RESTRICTIONS APPLY: Sexual Offences Amendment Act 1992 __________ Transcript prepared from digital audio by 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 HOLT appeared on behalf of the HM Solicitor General. MR G PURCELL appeared on behalf of the Respondent. _________ J U D G M E N T ( Transcript prepared without access to documentation ) LORD JUSTICE WILLIAM DAVIS: 1 The provisions of the Sexual Offences Amendment Act 1992 apply to the offences with which we are concerned. Under these provisions where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as a victim of that offence. The prohibition applies unless waived or lifted in accordance with section 3 of the Act. Introduction . 2 On 20 January 2023 in the Crown Court at Nottingham, Thomas Timpson was convicted of six offences of sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003: one offence of sexual communication with a child, contrary to section 15(a) of the Sexual Offences Act 2003, and one offence of causing or inciting a child to engage in sexual activity, contrary to section 10 of the Sexual Offences Act 2003 3 On the same day he was sentenced as follows: Counts 1 and 2, sexual activity with a child, two years' imprisonment; Count 3, sexual activity with a child, three years' imprisonment; Counts 4, 5 and 6, sexual activity with a child – the counts being multiple incident counts – three years' imprisonment; Count 7, sexual communication with a child, no separate penalty; Count 9, causing or inciting a child to engage in sexual activity, two years' imprisonment. All those sentences were ordered to run concurrently, the total sentence was three years' imprisonment. Ancillary orders were made with which we are not concerned. 4 His Majesty's Solicitor General now applies to refer the sentence to this court pursuant to section 36 of the Criminal Justice Act 1988. He argues that the sentence was unduly lenient. The Factual Background . 5 The offender is 36. He was born in September 1986. In 2018 he had a partner who worked at a riding stable. At that time the female victim, to whom we shall refer as "LB", began to work at weekends at the stable. She was then coming up to her 14 th birthday. Her date of birth was 2 April 2004. LB and the offender's partner became friends. As a result of that friendship the offender got to know LB. He had a horse at the stable, LB would exercise his horse. 6 During the course of 2019 the offender spent more and more time with LB. He was a regular visitor to her home address. Although he had a partner he began a sexual relationship with LB's mother. LB knew nothing of this. Notwithstanding the sexual relationship the offender was having with LB's mother, he also engaged in sexual grooming of LB. For instance, in August 2019 he took her shopping and bought her a set of lingerie. She was aged 15½ at the time. On 1 September 2019 LB went to a festival with the offender and his partner. Whilst they were at the festival the offender kissed LB for the first time. The relationship between the offender and LB soon went further. 7 Later in September 2019, when LB was with the offender, ostensibly helping him to prepare a motor cross course, they first had sexual intercourse. Following that, the offender and LB, until about April 2020, engaged in sexual activity on numerous occasions and at various locations. The activity included both vaginal and oral sex by reference to the multiple incident counts, the indictment represented nine occasions on which vaginal intercourse took place, and three incidents of oral sex involving the penetration of LB's mouth with the offender's penis. It also reflected three incidents of the penetration of LB's vagina with the offender's tongue. 8 The grooming of LB by the offender continued over this period. He bought her clothing. He paid for beauty treatments. He deposited cash into her bank account. They socialised in public houses where the offender bought alcohol for LB. The offender sent messages to LB, including pictures of his penis. He asked her to send him naked pictures of her. In April 2020, LB's mother told LB that she had been having a sexual relationship with the offender. This caused serious friction between LB and her mother. At that stage the mother was unaware of LB's relationship with the offender. 9 On 2 May 2020 she found a note in LB's bedroom which said: "Love you millions. Can't wait to spend the rest of my life with you." She also found a letter in LB's handwriting clearly intended to be sent to the offender. It concluded with the words: ". . . can't wait for more sex. I'm so addicted to you." When LB was confronted by her mother she said: "I know we cannot be together but I love him." The relationship between mother and daughter broke down completely at this point. LB went to stay with her grandparents. She was advised by her father to contact the police. She did so but when the police first spoke to her she denied any sexual contact with the offender. However, she had resiled from this position by 12 May 2020. On that day she telephoned her mother and admitted she had been having sex with the offender over a period of some months. 10 She was interviewed by the police in ABE interviews in May and June 2020, at which point she gave a full account of her relationship with the offender. She explained that she had been groomed by the offender with the result that she had become infatuated with him. The offender was arrested on 13 May 2020. When interviewed he said that he had done nothing wrong and that he was innocent. Other than that, he made no comment to all questions. 11 The offender was charged on 8 November 2020. His first appearance in the Magistrates' Court was on 14 January 2021, when he was sent for trial at the Crown Court. Two trial dates were fixed and then vacated, one in September 2021 and one in June 2022. The September trial date was vacated because there was a lack of Judges. The June trial date was vacated because of the lack of a courtroom. The offender's defence at trial, in January 2023, was that he had had sexual intercourse with LB on one occasion in 2020 by which time she was 16. Other than that, he had not had any kind of relationship with her. LB had been flirtatious with him but he had not responded. His case was that LB's account was malicious fabrication. Material Before the Judge . 12 LB made a lengthy victim personal statement in which the dominant theme was fear of encountering the offender again. She said that she was scared to be on her own. She had difficulty sleeping because she would dream that he was looking through the window at her at which she would wake up frightened. She suffered flashbacks of what had happened between her and the offender. She was nervous and anxious at all times. She was constantly on edge. She had had some therapy sessions and was due to have more because she could not cope with the anxiety. Her family were contemplating moving away from the area so that the offender would not know where she lived. 13 The offender had two convictions for which he had been fined. Neither conviction was of any relevance to sentence in this case. Two character references in relation to the offender were provided to the judge, one from a previous manager of the stable, and one from a local farmer. Both spoke highly of the offender's work ethic, and his helpful attitude. The Sentence . 14 In the course of mitigation Mr Purcell, who represented the offender at the trial and who has appeared on his behalf before us, made two submissions to which we need to refer. First, he argued that LB's age and her ostensible consent reduced the seriousness of the offences considerably. He relied on the fact that the offence of sexual activity with a child under 16 will cover all ages from 13 to 15. LB was towards the upper end of that range. Second, he said that there had been delay which was no fault of the defendant. 15 In sentencing the judge said that initially there had been a friendship between LB and the offender via their interest in horses. That friendship had been corrupted by the offender and he had taken advantage of her sexually. LB was infatuated with the offender. He took advantage of the infatuation of an immature teenager. A fully penetrative sexual relationship had developed with sexual activity occurring on multiple occasions as indicated by the jury's verdict on the multiple incident counts. 16 The judge considered the Sentencing Council Guideline in relation to the most serious offences of sexual activity with a child, namely the penetrative sexual activity reflected in Counts 3 to 6. In relation to those offences harm was in Category 1. The judge found that there were high culpability factors, namely grooming behaviour and a significant disparity in age. A Category 1A offence had a starting point of five years' custody, with a category range of four to ten years. The judge observed that the offending was repeated over a period of five or six months and said that: "The starting point, in a sense, is inadequate to reflect the scale and duration" of the offending. However, the judge went on to say that the age of LB reduced the seriousness of the offending. In consequence he concluded that the appropriate starting point, allowing also for the offender's good character, was four years' custody. He then applied a reduction of 25 per cent to take account of delay. He said that there had been an unreasonable period between the first complaint in May 2020, and the trial in January 2023. He concluded that the delay: "had impacted upon the offender's Article 8 rights" under the Convention. By that route the judge arrived at the total sentence of three years' imprisonment. The Submissions Before Us . 17 The Solicitor General accepts the structuring of the sentence by the judge, whereby he imposed what he considered to be the appropriate overall sentence on each of the counts of sexual activity with a child was unexceptionable. His submission is that the judge fell into error in two respects. First, the starting point of four years' custody before the reduction for delay was overly favourable to the offender. If an adjustment for the age of LB was appropriate, this had to be balanced against the raised culpability factors and the repeated offending. Rather than moving down the category range the starting point should have been higher than five years' custody. Second, it is said that whilst there was a significant delay a reduction of 25 per cent was excessive. It failed to take into account the continuing impact of offending on LB. 18 On behalf of the offender, Mr Purcell repeated the submissions he made to the judge in the Crown Court. He argues that the judge was entitled to take the approach he did. He invites us to give proper weight to the fact that the judge who imposed the sentence was the judge who had heard the trial. In oral submissions, he made the particular point in relation to the grooming of LB by the offender. He argued that the grooming in this case was not as bad as online grooming and could not be described as predatory behaviour. Discussion . 19 We remind ourselves of what was said by Lord Lane LCJ in Attorney General's Reference (No 4 of 1989) 1991 WLR 41, when section 36 of the 1980 Act was in its infancy: "A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the Judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must, of course, be had to reported cases, and in particular to the guidance given by this court from time to time in so-called guideline cases. However, it must always be remembered that sentencing is an art rather than a science, that the trial Judge is particularly well placed to assess the weight to be given to various competing considerations, and that leniency in itself is not advice." Those principles hold good today, save, of course, a sentence now must be considered by reference to the relevant Sentencing Council Guidelines. In short, we have to ask whether the term of imprisonment imposed by this judge fell outside the range reasonably open to him. 20 Notwithstanding the fact that the sentencing judge was the trial judge, a factor to which considerable weight always must be attached, we are satisfied that the sentence in this case was unduly lenient. First, the judge implicitly acknowledged that the starting point of five years' custody was insufficient to reflect the repeated offending over months. He was right to do so. The guideline is intended to reflect a single offence, yet that factor was effectively ignored. There should have been an uplift from the starting point of five years' custody to reflect the multiple offences. As we have said, the Solicitor General does not criticise the way the judge structured the sentence. Nor do we. But when concurrent sentences are passed in relation to more than one offence the principles set out in the Sentencing Council Totality Guideline must be observed: "Where concurrent sentences are to be passed the sentence should reflect the overall criminality involved. The sentence should be appropriately aggravated by the presence of the associated offences." The starting point of four years' custody, which was the basis upon which the sentence was calculated, wholly failed to represent that overall criminality. 21 Moreover, the proposition that, in the circumstances of this case, the age of LB was a factor which served to reduce the starting point at the bottom of the category range was misconceived. As the judge found, LB was an immature teenager. The offence under section 9 of the 2003 Act is intended to protect girls like her from predatory sexual offenders. If she had been 13 or 14 when the sexual relationship began, that might well have been a basis to move the sentencing up the category range. In the particular circumstances of this case, LB's age provided no basis for moving the starting point to the bottom of the category range. The harm and culpability factors placed the offences squarely into Category A in the guideline, the multiple offending required a movement up the category range from the starting point. No other conclusion was reasonable on the facts of the case. The least uplift appropriate in the circumstances would have been 12 months i.e. a sentence of 6 years’ custody. 22 Secondly, the judge erred by reducing the sentence by 12 months (or 25 per cent) due to the delay. It was wrong to say, as Mr Purcell submitted to the judge, that the delay was no fault of the defendant. In February 2021 he appeared at the Crown Court, he was arraigned. Had he pleaded guilty he would have been sentenced shortly thereafter. Of course, he was entitled to have his trial and he was not to be penalised for that. Equally, he was not entitled to a benefit by reason of him contesting the case. As Mr Holt, on behalf of the Solicitor General, pointed out in the course of the hearing, suppose the offender had pleaded guilty at the PTPH. He would have had a reduction of his sentence for his plea of guilty of 25 per cent. In this case, the offender contested the case, yet his sentence was reduced as if he had pleaded guilty at a relatively early stage. It cannot be said that the delay before his trial was nothing to do with him. A trial was only necessary because he contested the case. In those circumstances, we consider that the delay would have to be wholly out of the ordinary for any reduction at all to be applied. 23 The situation here was wholly different to the situation which is all too common in criminal proceedings. Offences are committed, they are reported promptly to the police who investigate them with reasonable expedition. The investigation concludes with evidence available to justify charging of the offender. Then, many months, sometimes years, pass before the offender is charged. That type of delay often will result in some reduction in the eventual sentence, particularly in cases where the offender pleads guilty. We observe that the reduction would be most unlikely to be as great as 25 per cent, particularly where the offences were serious, but some reduction would follow. In this case, the offences were reported to the police in May 2020, the offender was charged in November 2020, he made his first appearance in the Crown Court in January 2021. That chronology does not reveal any significant delay, rather it is the progress to be reasonably expected in a case of this kind. 24 The judge referred to Article 6. Article 6 provides a criminal defendant with a right to a trial within a reasonable time. There are two aspects to this right which are of relevance to this case. First, the conduct of the defendant is relevant to the reasonableness of any delay. Second, where the courts are faced with some unusual or exceptional circumstances, which create a significant backlog, the backlog leading to delays, there will be no interference at all with the defendant's Article 6 rights, so long as the courts take remedial action insofar as they can. 25 We have already dealt with the conduct of the defendant. As to the backlog, there was undoubtedly a significant backlog in Crown Courts generally in 2021 and 2022. Up to June of 2022 it was predominantly due to the effects of the pandemic. During 2020 and the first half of 2021, the ability of any Crown Court to try cases was dramatically reduced. When the position improved after the middle of 2021, the courts were faced with a backlog of cases dating back to the beginning of the lockdown in March 2020. The Judiciary and HMCTS engaged in a recovery programme in which priority had to be given to older cases, cases involving offenders in custody and young offenders. The problem was exacerbated by the fact that those who might have sat as fee paid judges to deal with the backlog were unable to do so because they were committed to cases coming on for trial as part of the recovery programme. In addition, the number of courtrooms in many crown courts was reduced due to precautions required as a result of the pandemic. 26 The history of the proceedings in this case was plainly unfortunate. However, it was the consequence of extraordinary circumstances in respect of which the courts took such remedial action as they could. With great respect to the judge, it was not helpful to refer to Article 6 without any consideration of domestic or ECHR authority. It is clear to us that there was no actionable interference with the offender's Article 6 rights. Given the overall circumstances, the delay in trying the offender was not unreasonable. There was no proper basis for any reduction in the offender's sentence by reason of delay. Conclusion . 27 We give leave to refer the sentence imposed on the offender on 20 January 2023. We are satisfied that the overall sentence was unduly lenient. We shall quash the concurrent sentences of three years' imprisonment imposed on Counts 3 to 6 on the indictment. We substitute in their place concurrent sentences of six years' imprisonment on each of those counts. The other sentences will remain unaltered. It follows that the total sentence now will be six years' imprisonment. __________

2023_04_04-5632.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/453/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/453

9c3af196caa27851c6dfc7008036a6292a54372dbf3999a981a78eda46b75740

[2023] EWCA Crim 698

EWCA_Crim_698

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 698 No. 202202534 B2 Royal Courts of Justice Tuesday, 23 May 2023 Before: LORD JUSTICE WARBY MR JUSTICE HILLIARD HIS HONOUR JUDGE FLEWITT KC REX V RICHARD KWABENA ASUBONTENG REPORTING RESTRICTIONS APPLY: 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 _________ JUDGMENT LORD JUSTICE WARBY: 1 This case is one to which the provisions of the Sexual Offences (Amendment) Act 1992 applies. Their effect is that no matter relating to the child we shall mention shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the person against whom any of the offences was allegedly committed. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2 Richard Asubonteng renews his application for an extension of time of 455 days in which to apply for leave to appeal against conviction following refusal by the single judge. 3 On 19 April 2021, in the Crown Court at Kingston upon Thames, the applicant was convicted by a jury on 10 counts of sexual offending against a child. There was one count of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003 ; six counts of sexual assault, contrary to section 3 ; one of causing a person to engage in sexual activity without consent, contrary to section 4; and two of sexual activity with a child, contrary to section 9. The applicant was sentenced to a total of six years and six months' imprisonment. 4 The case concerned the sexual abuse of a girl whom we shall call C1. The applicant met C1's mother and became a friend. This included the mother inviting the applicant to the family home and introducing him to her partner and to C1. It was common ground that he was a family friend. 5 The prosecution case was that the applicant had breached the trust put in him by way of sexual activities with C1 which began with kissing and became progressively more serious over a period of four years, between 2016 and 2019, when C1 would have been between 13 and 17 years old. 6 The prosecution case relied on the ABE interview given by C1 in 2019 and supporting evidence from her mother, a cousin and a friend, together with a photograph and a recording of telephone conversations between C1 and the applicant. C1 was cross-examined before the trial and a video recording of the cross-examination was before the jury. 7 The defence case was that the alleged events never happened. The applicant denied the offending in interview and in his defence statement and gave evidence before the jury to the same effect. 8 The issue for the jury in relation to each count was whether they were sure that the alleged offence had occurred. 9 The delay in lodging the notice of appeal amounts to the best part of 18 months. We have considered the applicant's explanation for that delay which is, in essence, difficulties of the English language. Noting that the trial judge directed the jury to bear in mind that English is not the applicant's first language, we accept the broad proposition but we are unable to accept that it provides a sufficient ground for delay of this magnitude. We would, in any event, have refused leave to appeal on the merits, to which we now turn. 10 The applicant's grounds are not easy to disentangle, but we have been assisted by the helpful representations of the prosecution in a respondent's notice and the information provided by the applicant's counsel in response to some of the grounds, following waiver of privilege by the applicant. 11 Reviewing the notice of appeal and other later documents in the light of those observations, we have identified six individual grounds of appeal with which we can deal in turn in chronological order. 12 First, the applicant complains that there was a procedural irregularity due to a "change of judge" between the recording of the cross-examination and trial. This, however, is a commonplace occurrence. As Criminal Practice Direction V, Rule 18E.63 makes clear, this procedure is proper, and nor is there any arguable case that this has any effect on the safety of the applicant's conviction. 13 Secondly, the applicant contends that the judge erred in refusing a bad character application. The applicant had wished to cross-examine C1 about stealing from Primark in Tooting and in Croydon on 29 June 2017. She had no convictions but there were some apparent admissions within her school record. The application was dealt with and refused before the trial. It is not entirely clear quite what the applicant's intended criticism is. But having read the judge's ruling and reviewed the prosecution's response, we find ourselves in agreement with the single judge's observations that: "The judge was entitled to refuse your application to adduce evidence of 'bad character' of the complainant, namely evidence relating to two incidents of shoplifting in 2017, on the grounds that the conditions for its admissibility were not met." 14 The third written ground of appeal is that a picture from "the mother's phone" was allowed to be put before the jury. We believe this must relate to a photo which C1 emailed to the police, which was said to be one she had taken, showing the applicant in his boxer shorts while taking a Facetime call. That evidence was plainly admissible and properly admitted. It was introduced fairly, put to the applicant and dealt with by him, and the judge summed up the incident fairly to the jury. 15 Fourthly, the applicant complains that his barrister "blocked him" from calling witnesses. The complaint relates to the applicant's wife and another witness by the name of Joseph. We are satisfied there is nothing in this point. In short, there were extensive pre-trial discussions about defence evidence, and the applicant was given reasonable legal advice on which he relied. He has no ground of complaint in this court. In any case, far from anyone preventing the applicant's wife from giving evidence, it was never suggested by the applicant that she might have relevant evidence to give, nor has he, even now, identified any way that she could have materially assisted his case. We see no reason to suppose that she could have done so. It was common ground that she was present in the house on the occasion of one of the offences, but there was no suggestion or indication that she would have said anything or could have said anything to show that the offence did not take place. 16 As to Joseph, the suggestion is that he could have helped to show when the applicant arrived in the United Kingdom and met C1’s mother. But the applicant did not produce any proof of evidence for this witness, nor has he done so now, or offered any explanation of how the witness could have helped. The applicant's own evidence that he arrived in 2015 is refuted by documentary evidence that definitively demonstrated his entrance to the United Kingdom in 2014, as he accepted when confronted by the document in the course of his evidence. 17 The fifth ground of appeal is that the judge's summing-up was "wrong". The applicant says here that he was convicted "at a time when he was not in the UK". As we understand the applicant's representations, he challenges some of the evidence about things he is said to have done in 2012 and 2013, maintaining that he was not in the country at the time and did not go to the family home at that time. That, however, underlines the defence which he attempted to substantiate at trial but which was rejected by the jury. We see no arguable merit in the applicant's criticisms of the way the judge summed up on these aspects of the evidence. 18 Sixth, and finally, it is said that the trial was not fair and was in breach of the applicant's Article 6 rights. This, on analysis, is nothing more than another way of putting the effect of the points with which we have dealt already. There is nothing in addition to support this ground of challenge to the applicant's conviction. 19 For all these reasons we are satisfied that there are no arguable grounds for doubting the safety of this conviction, and hence no justification for extending the time. The renewed application is dismissed. __________

2023_05_23-5681.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/698/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/698

f0fe38f1dca821d90ca0895bf0f9ac9ac3ac5ddf4e0980687ce1b5a01db2425d

[2008] EWCA Crim 1059

EWCA_Crim_1059

crown_court

Neutral Citation Number: [2008] EWCA Crim 1059 No. 2008/00172/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 21 April 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE PITCHFORD and MRS JUSTICE DOBBS DBE - - - - - - - - - - - - - - R E G I N A - v - LUKE JAMES SHARP - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communica

Neutral Citation Number: [2008] EWCA Crim 1059 No. 2008/00172/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 21 April 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE PITCHFORD and MRS JUSTICE DOBBS DBE - - - - - - - - - - - - - - R E G I N A - v - LUKE JAMES SHARP - - - - - - - - - - - - - - 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 R Frieze appeared on behalf of the Appellant - - - - - - - - - - - - - - J U D G M E N T Monday 21 April 2008 THE LORD CHIEF JUSTICE: I will ask Mr Justice Pitchford to give the judgment of the court. MR JUSTICE PITCHFORD: 1. Luke Sharp was born on 7 July 1994. Four days before his 13th birthday he committed the offence of sexual assault on a female contrary to section 3 of the Sexual Offences Act 2003 . He admitted that offence at the Wakefield Youth Court on 5 December 2007 and was committed for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 , since the Youth Court believed that there required to be an assessment of the appellant's dangerousness in the Crown Court. 2. On 17 December 2007, in the Crown Court at Leeds, the appellant was sentenced by His Honour Judge Stewart QC to four years' detention in a young offender institution under section 91 of the Sentencing Act 2000. He now appeals against that sentence with the leave of the single judge. 3. Mrs Rosemary Pagett was aged 75. She lived alone in her bungalow in Wakefield. She suffered from a number of debilitating medical conditions. From time to time she needed to use a mechanical oxygen inhaler. Notwithstanding that she lived alone, Mrs Pagett had friendly neighbours who kept an eye on her and spent time with her. 4. During the afternoon of 3 July 2007 the appellant knocked on her door. That day was not a particularly good day for her. She was dressed only in her zip-up dressing gown. When she saw the appellant at her door, she mistook him for a grandson whom she had not seen for some time. She invited the appellant into her home. She offered him money. The appellant declined her offer but asked her what kind of underwear she was wearing. He proceeded to unzip her dressing gown and to touch her. He told her that he loved her and began to suck her breasts. He placed his hand on the inside of her thigh, near to but not against her genitalia. Mrs Pagett was able physically to prevent him going any further by closing her legs. The appellant told her that he wanted to come and live with her. He exposed his penis. This ordeal, as such it was for the victim, lasted for about 30 minutes before the appellant left her. 5. Not long afterwards Mrs Pagett was able to use her telephone to call for help. On arrival the neighbour found Mrs Pagett to be in a distressed state. The police were called. While they were waiting, Mrs Pagett explained to the neighbour what had happened to her. She then began to have difficulty with breathing and was taken to hospital. In hospital it was discovered that she had been suffering from an ulcer. That was unknown to her or her family before this day. It was on that day, 3 July, that she suffered a burst of the ulcer. She remained in hospital, but two days later she suffered a heart attack. On 13 July, ten days after the incident with which we are concerned, she died, having remained unconscious. 6. We have, as did the sentencing judge, a victim impact statement from the deceased's daughter. We entirely understand and sympathise with the belief of those dear to the deceased that the appellant, by his commission of the offence, set in train a sequence of physical events which led causatively to her death. We must, however, make it plain that the appellant was not, and could not on the evidence have been, charged with causing her death; still less could he be sentenced on the factual basis that he did cause it. 7. Having considered the available information, the sentencing judge concluded that he could not find that the appellant presented a significant risk of serious harm to the public. 8. In short but admirably focused submissions by Mr Frieze on the appellant's behalf, it is argued that a sentence of four years' detention for a boy of this young age, after an early acknowledgement of guilt, was manifestly excessive if not wrong in principle. Mr Frieze acknowledges that the circumstances of this offence do not fit easily into the guideline published by the Sentencing Guidelines Council on Sexual Offences. He submits that on a literal interpretation of the guideline the starting point for sexual touching of this kind should have been a community penalty. Nevertheless, Mr Frieze concedes that there were significant aggravating features of the offence. Having regard to the compelling personal mitigation available, it is submitted that the judge should have acceded to the recommendation of the Youth Offending Team that the appellant should be placed upon a structured supervision order for three years. 9. In examining those submissions, we shall first consider the seriousness of the offence by reference to the nature of the touching and the aggravating features of it. We have described the acts themselves. They were committed upon an elderly, vulnerable woman who, it was obvious to the appellant, had difficulty breathing and was quite unable to resist him in the initial stages of the assault. He took advantage of an unexpected and mistaken invitation into her home. The harm which the appellant did was manifested by the distress he caused. From the moment the ordeal ended Mrs Pagett was, as a matter of fact, in fatal physical decline. At the least the juxtaposition of the two events served to exacerbate the distress she experienced. 10. We turn to consider the appellant's culpability for the offence and the level of risk that he posed for the future. The appellant is the second eldest of four brothers. When he was aged about 3, his mother took up with a drug addict called Mark. Mark introduced her to drugs and she, too, became addicted to amphetamine and heroin. The home environment became almost indescribably bad. The children witnessed intravenous drug taking and overt sexual activity in proximity to their childhood domestic lives. The appellant and his older brother were neglected, physically abused and left largely to fend for themselves. In 2005, when the appellant was aged 9, he and his brothers were taken into care and placed with foster carers. Their younger brothers were returned to their mother in 2006 when, in response to the shock of losing the children and suffering hepatitis, she separated from Mark and ceased taking controlled drugs. By this stage serious damaged had been done to the relationship between the older boys and their mother. Their placement with foster carers was viewed positively. It was believed that the appellant and his brother were thriving (in comparative terms) in a more structured home environment. There were no significant concerns at school. Nevertheless, we agree with Mr Maguire, the author of the reports to the Youth Court, the Crown Court and this court, that the appellant's childhood experiences must have been emotionally damaging. 11. Since his arrest for this offence, contact has been renewed between the appellant and his mother and grandmother. The signs are, in general terms, encouraging. 12. The appellant told the police, when they made enquiries, that he had been playing a game by knocking on his victim's door. He agreed that he had entered her house, but denied any sexual contact. He told Mr Maguire that he had separated from his brother that afternoon and come across some older boys. He was given the task of knocking on the bungalow door as a "dare". Instead of running away, he remained at the door and entered when invited. He informed Mr Maguire that the offence was committed deliberately. He claimed that he needed to commit an offence of sufficient seriousness to achieve a change of his foster home in which he said that he had been unhappy for several months. He claimed that his thoughts had even encompassed committing a much more serious crime. 13. These claims caused Mr Maguire great reservations, with which we concur. In his report to the Youth Court Mr Maguire said this: "2.11 Luke's assertions, attitude and conduct during the interviews for the purpose of this report cause me major concern. He fails to show any genuine remorse for his actions and his expression of empathy for his victim comes only with prompts. .... What he offers, I would submit, is a 'script' concocted to justify his actions to himself and to offer him a degree of safety during the ensuing criminal investigations. ...." In his report prepared for the present appeal, Mr Maguire enlarged that opinion as follows: "4.9 It is my professional opinion through comprehensive assessment that there is no direct link between Luke's previous foster care placement and his offence. He maintains that the offence was a 'means to an end', planned months in advance with an emphasis on the type and seriousness of the incident in order to reach his favoured conclusion. I believe that it is far more likely to have been an example of deviant behaviour seeking sexual gratification that was exacerbated by pubescent urges, albeit from the distorted viewpoint of a young man who has witnessed extremely inappropriate sexual behaviour." 14. Mr Maguire advised the Youth Court and the Crown Court that the appellant represented a moderate risk for future offending, but possessed an unquantifiable but recognisable potential to cause serious harm in future. His view is encapsulated in paragraph 4.3 of his report to this court. In that paragraph Mr Maguire suggests that his behaviour is classic of that resulting from a young person who has been subject to significant rejection, dysfunction, neglect and chaos. The circumstances which might trigger a reaction include fear of rejection and times when his self-esteem might be under threat. He goes on: "He has entrenched coping behaviours that increase the likelihood of harmful reaction to stressful situations...." 15. It follows that the judge was faced with a particularly difficult sentencing assessment. On the one hand, the boy before him had committed a serious sexual assault for which his culpability was limited. On the other, by reason of his exposure to appalling life experiences, for which he could bear no personal responsibility, he possessed attributes which could, without being properly addressed, cause serious harm in the future. 16. In his reports Mr Maguire did his best to address the alternatives. He reached the conclusion that a return to the mainstream community was not a feasible option. What was required in his opinion was long-term and intensively-modelled supervision during which the appellant would live in a residential unit away from his home area at significant cost. Such an order would include the application of the Greater Manchester Adolescent Project Sexual Offending Programme. 17. Since the sentence of detention was imposed, the appellant has been in custody at a secure children's centre where he lives a properly structured working and learning day. He is required to engage in conventional offending behaviour work and, with the assistance of Mr Maguire, a programme of intervention intended to address the appellant's sexualized offending. We have, indeed, been provided with a report from Mr Gerry Miller, the Care Planning Officer, dated 18 April 2008, which assists the court with the appellant's current progress. We need only observe that the opinion expressed by Mr Maguire in his report is echoed and reinforced by Mr Miller in his. 18. We therefore move to the central question: whether, in the light of the information before the sentencing judge and that which has become available since sentence was passed, a sentence of four years' detention is wrong in principle or manifestly excessive. 19. In our judgment a sentence of four years' detention upon this child was manifestly excessive. We do not suggest that a custodial sentence upon a 13 year old boy would necessarily be wrong in principle for an offence of sexual assault. There was, however, before the sentencing judge information about this appellant which, in conjunction with his plea of guilty, mitigated the length of any custodial sentence very significantly. Having concluded that the appellant did not present a significant risk of serious harm, we do not consider that a sentence of this length could be merited. 20. The reports prepared by Mr Maguire were thoughtful, measured and painstakingly researched. We accept his opinion that the feature of this offence and this offender, which dominates the sentencing assessment, is the need effectively to address the appellant's potential for causing harm in the future. It will require close supervision in a structured environment such as that in Lincolnshire identified by Mr Maguire, together with long-term exposure to programmes designed to probe and remedy the appellant's sexual offending and to assist his development towards a conventional maturity. 21. The sentence of four years' detention will be quashed and substituted for it will be a supervision order for a period of three years containing the elements of treatment and programming referred to in Mr Maguire's report to this court at paragraph 5.3. 22. The appeal will succeed to that extent. 23. Registration and notification to the police will be for two-and-a-half years. Reporting restrictions were lifted in the lower court and we do not interfere with that.

2008_04_21-1467.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1059/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1059

6367881164b8844d6235700759b704ac1898a5234cae4130cad3e50908731c7e

[2022] EWCA Crim 264

EWCA_Crim_264

crown_court

WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraph 1 of the judgment, because the case concerns sexual offences. 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 breache

WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraph 1 of the judgment, because the case concerns sexual offences. 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 202102270/A3 NCN [2022] EWCA Crim 264 Royal Courts of Justice Strand London WC2A 2LL Tuesday 15 February 2022 LORD JUSTICE HOLROYDE MR JUSTICE HOLGATE RECORDER OF BRISTOL (HIS HONOUR JUDGE BLAIR QC) (Sitting as a Judge of the CACD) REGINA v JOEY SAUNDERS 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) MS O LYCOURGOU appeared on behalf of the Appellant. J U D G M E N T 1. LORD JUSTICE HOLROYDE: This is an appeal by leave of the single judge against a sentence of 7 years' imprisonment for an offence of rape. The victim of the offence (to whom we shall refer as "C") is entitled to the protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime, no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of this offence. 2. The appellant and C were both students at the same university. At the time of the offence C, unlike the appellant, was a virgin. Her virginity was important to her because of her religious beliefs. In her evidence at trial she explained that she had moderated her parents' strict principles to an extent which enabled her to join in student life and to drink alcohol with her friends. Her faith nonetheless remained important to her, and retaining her virginity was part of that faith. 3. On the night of the offence C went to the Student Union with some friends. There she met the appellant, whom she recognised because she had seen him about a week earlier. He appeared to be intoxicated. They danced and kissed. Later, C agreed to accompany the appellant to his room. She made clear however that she did not want to have sex with him. As a result of his intoxication the appellant vomited twice as they walked. 4. Once in the appellant's room, some initial sexual activity took place to which C consented. She did not however consent to the vaginal sexual intercourse which the appellant then forced upon her. C described herself as "freezing" when that happened. The appellant then tried to insert his penis into her mouth, but she pushed him away and told him to stop. The appellant apologised. C went to the bathroom, where she found she was bleeding heavily from her vagina. She sent text messages to her friends reporting what had happened. By the time she returned to the appellant's room to collect her purse, he had fallen asleep. 5. Very regrettably there was a delay of around 3 years before the trial could be heard. The appellant denied rape, and indeed denied that he had penetrated C's vagina with his penis, but was convicted. 6. The appellant was approaching his 21 st birthday at the time of the offence. He had no previous convictions. No pre-sentence report was thought to be necessary, and we are satisfied that none is necessary now. 7. C had initially feared that she might be pregnant, but that proved not to be the case. In a victim personal statement she described her distress and anxiety. She said that she had never imagined that her first experience of sexual intercourse would be rape. She did not feel able to tell her parents what had happened because of their religious views, and had only confided in one friend. She lost confidence in social situations and her studies were adversely affected. The judge in his sentencing remarks accepted that the offence had had a substantial effect upon her. 8. The judge was addressed about the appropriate categorisation of the offence under the Sentencing Council's definitive guideline for Rape offences. He concluded that it fell into category 2B, with a starting point of 8 years' custody and a range from 7 to 9 years. He was satisfied that the Autistic Spectrum Disorder which affects the appellant had not reduced his culpability. In relation to harm he explained his decision as follows: "... I do regard your victim as being somebody who was particularly vulnerable because of her faith, the way she was trying to live that faith in the modern context and her virginity, which she had retained and which she lost through you that night." 9. The judge identified a number of mitigating factors: the appellant's comparatively young age; the absence of previous convictions and the "many admirable qualities of kindness and support" which the judge accepted he had shown. He took into account the particular difficulties faced by those in prison during the Covid-19 pandemic, but regarded that as a less powerful factor in view of the inevitably lengthy sentence which would have to be imposed. Taking those factors into account he moved downwards from the starting point to the bottom of the category range and so imposed the sentence of 7 years' imprisonment. Appropriate ancillary orders were made, about which we need say no more. 10. In her written and oral submissions Ms Lycourgou, who represents the appellant in this court as she did at trial, submits that the judge was wrong to find that C was "particularly vulnerable due to personal circumstances" for the purposes of the sentencing guideline. The appropriate category, she submits, was 3B, with a starting point of 5 years' custody and a range from 4 to 7 years. She argues that the evidence showed that C was capable of making choices as to what she would and would not do, had chosen during her time at university to socialise and drink in ways which showed her not to be particularly vulnerable, and had chosen to engage in some sexual activity with the appellant. Ms Lycourgou contrasts the circumstances of this case with those of R v McPartland and Grant [2020] 1 Cr App R(S) 51, in which a finding of particular vulnerability was made in circumstances where the victim had been very drunk, alone with two older men in the home of one of them and had been raped when visibly unwell. 11. Ms Lycourgou has amplified her submissions orally this morning and we are grateful to her. 12. The factor "victim is particularly vulnerable due to personal circumstances", which appears in the guidelines relating to several sexual offences, has been considered in a number of previous decisions of this court. It is clear that the relevant personal circumstances need not be enduring characteristics such as a young age or a physical disability (see R v Rak [2016] EWCA Crim 882 ). Thus, for example, adult victims of sexual offences who were asleep or insensible through intoxication when the offending began may be found to have been particularly vulnerable (see, for example, R v Bunyan [2017] EWCA Crim 872 and R v Behdarvani-Aidi [2021] EWCA Crim 582 ). 13. The present case raises a rather different issue as to the ambit of this factor. It is important to remember that the particular vulnerability of the victim is identified as a harm factor in the sexual offences guidelines, not a culpability factor. Specific targeting of a vulnerable victim, which plainly is relevant to culpability, would be taken into account as an aggravating factor at step 2 of the sentencing process. The inclusion of the harm factor allows the sentencer to take account of a range of features which may increase the harm which the offence caused, was intended to cause or might foreseeably have caused to the victim. Often the relevant circumstances will be those which substantially limit or exclude the victim's ability to avoid, protest against or report the offence. This may be the case where, for example, a victim is very young or is insensible through drink. But personal circumstances may also render a victim particularly vulnerable to even greater harm than is likely to be suffered by other victims of a similar offence. A victim may, for example, have mental health problems which are greatly exacerbated by the effects of the offence. Similarly, a victim's religious and/or societal circumstances may be such that being the victim of a sexual offence strikes at her faith and/or results in condemnation by her peers. 14. It will be for the sentencer in each case to assess the relevant personal circumstances and consider carefully whether the factor applies. Due weight must, of course, be given to the words " particularly vulnerable", bearing in mind that a finding to that effect will place the case into a more serious category with a higher starting point for sentence. As always, care must be taken to avoid double counting. For example, circumstances which render the victim particularly vulnerable to injury may also bring the case within the factor of "severe psychological or physical harm". It must also be remembered that vulnerability which falls short of "particular vulnerability" may be treated as an aggravating factor at step 2 of the sentencing process. 15. Applying those principles to the particular circumstances of the present case, the judge was entitled to find that C's desire to preserve her virginity, and the religious importance to her of doing so, were personal circumstances which rendered her particularly vulnerable to suffer increased harm as a result of the offence, going well beyond the harm inevitably suffered by anyone losing their virginity in the greatly distressing circumstances of rape by a drunken man. The evidence and information available to the judge showed that C's religious and social background made the loss of her virginity a particularly heavy blow to her religious principles, and left her unable to seek support and comfort from her parents and friends. 16. We are therefore unable to accept the submission that the judge fell into error of principle in placing the offence into category 2B. Having done so, he correctly reflected the mitigation available to the appellant by moving downwards from the guideline starting point. The judge, having presided over the trial, was in the best position to assess culpability and harm. We recognise, of course, that the sentence is a heavy one for a young man with many good qualities. But he had committed a very serious offence and, although stiff, the sentence was neither wrong in principle nor manifestly excessive. For those reasons this appeal fails and is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2022_02_15-5270.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/264/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/264

363351a553a9c4aad69cb255b39bd9408bd458a8f3e223559ad92f3bfb3ac701

[2010] EWCA Crim 2971

EWCA_Crim_2971

crown_court

Neutral Citation Number: [2010] EWCA Crim 2971 Case No: 2010/06177/C5 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SWANSEA MR JUSTICE GRIFFITHS WILLIAMS Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/12/2010 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE DAVIS and MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - - - - - - Between : C Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2010] EWCA Crim 2971 Case No: 2010/06177/C5 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SWANSEA MR JUSTICE GRIFFITHS WILLIAMS Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/12/2010 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE DAVIS and MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - - - - - - Between : C Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Mark Evans QC and Mr A Munt for C Mr Gerard Elias QC, Mr David Elias and Mr Michael Jones for the Crown Hearing date : 8 th December 2010 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This case has had a chequered history; so least said, soonest mended. 2. The defendant (as we shall call the appellant to whom we have granted leave to appeal) is presently charged with offences of the utmost gravity, two separate cases of double murder where the victims were said to have been killed with a shotgun which took place in 1985 and 1989 respectively, as well as a rape/robbery which took place in 1996. He denies guilt. 3. The Crown wishes to adduce evidence that the defendant was convicted on an earlier occasion of a very large number of offences of burglary and one offence of robbery which took place in the locality where and in similar circumstances to those in which the present offences took place. These earlier convictions are described as the Huntsman convictions. They are said to be of direct relevance not simply as to propensity, but to the Crown’s case that the defendant was responsible for the commission of the present offences. By direct we mean that some of the evidence used to prove the defendant’s guilt of the Huntsman offences is linked with evidence intended to establish his guilt of the present offences. Notwithstanding his convictions for the Huntsman offences the defendant contends that he was not guilty of them. 4. On 1st and 2nd November 2010 Griffiths Williams J conducted a preparatory hearing designed to iron out how the issues relating to the earlier convictions should be handled at trial. In the course of that hearing, the defence agreed in writing a number of facts relating to the earlier convictions. The document was identified as Annex A. Annex A specifically agrees the offences of which the defendant was convicted, the dates and their venues. What were described as “other notable features of those offences” material to the present trial were identified. They included what was described as offence 30, the fact that a sawn-off shotgun was used against the victim of that offence, that immediately following the offence a shotgun (identified as item PH/2) was discovered, along with other discarded items, thrust into a hedgerow along the escape path along which the perpetrator fled. These items included, in addition to the shotgun PH/2, two live Italian shotgun cartridges, a home made jemmy type tool, a length of cord of similar type to that attached to the gun, a Head rucksack identified as having been stolen from an offence committed in April 1996 (described as offence 26), a balaclava item (MTJ/14) linked to the defendant by hairs found inside it, the victim’s handbag and other stolen items, a green/purple fleece jacket, and Puma size 9 trainers. 5. The Crown accepted that the summary represented the lowest common denominator of facts which, absent the agreement, the judge would have permitted the prosecution to place before the jury. So the Crown accepted the content of Annex A and indicated in consequence that it did not intend to call evidence on these matters. It was further indicated that the Crown was not minded to tender evidence for the sole purpose of enabling the earlier convictions to be undermined by the defence. 6. After considering the arguments, and at this stage in the proceedings we can see no advantage in examining very many pages of transcript of oral submissions, Griffiths Williams J understood the submission made to him on behalf of the defendant to mean that the only evidence that the defendant wished to adduce before the jury on the question whether he was guilty or not of the earlier offences was his own oral testimony. The judge also understood it to be suggested that the issue of the defendant’s previous convictions could in effect be re-litigated simply because the defendant asserted an entitlement to do so. And understandably, he was profoundly concerned about the dangers to the orderly running of the trial of satellite litigation, which might have the effect of requiring the Crown to prove to the jury trying the present cases what the Crown had already proved to the satisfaction of the jury considering the Huntsman offences. 7. Griffiths Williams J expressed his conclusions in this way, at paragraph 41 of his judgment, “(i) While there is a right to prove or seek to prove innocence of an earlier conviction, it is an absolute right, albeit it is fettered; the exercise of that right must be subject to he overriding objective of the Criminal Procedure Rules 2010 . A second jury is not the appropriate tribunal to determine the correctness of an earlier conviction and so there must be compelling grounds for satellite litigation…A defendant’s interest are protected generally by the appellate process; if a defendant has fresh evidence, then that evidence should be considered by an appellate court and not by a jury. (ii) A defendant must satisfy the court that there is a proper factual basis for challenging the correctness of the conviction; the defendant’s continuing claims of innocence alone will be insufficient to require the prosecution to call witnesses from the earlier trial. While a defendant may give evidence to that effect, if a witness is called by the prosecution as to the facts of a previous conviction, that witness may not be cross-examined in an attempt to challenge the correctness of the conviction. Had the defendant sought to maintain its challenge to the “bad character” evidence (on earlier grounds)…without more than the defendant’s continuing denials of guilt, no acceptable grounds for challenging the conviction would have been demonstrated… (iii) Mr Evans agreed that the summary of the facts giving rise to the Huntsman convictions together with a DVD presentation of the locations of all those offences (as well as the present offences) can be shown to the jury as evidence of the defendant’s guilt of the Huntsman offences but he submitted that the defence should be allowed, on grounds of fairness, to adduce evidence from the Huntsman trial which proves the defendant’s innocence of one or more of the offences…While – as Mr Evans submitted… - without the opportunity of challenging the conviction on count (30), it may be that the case is indefensible, that is not a material consideration and affords no ground for requiring the prosecution to call witnesses or to make incomplete admissions of fact. (iv) Any decision as to the evidence which the defendant may give to prove his innocence of the Huntsman convictions, or any of them, should properly await the defence case. ” 8. The effect of the submissions made on behalf of the defendant by Mr Mark Evans QC was simple. The ruling created an improper restriction on the right of the defendant to prove that he had not committed the Huntsman offences, an express entitlement under section 74 (3) of the Police and Criminal Evidence Act 1984 . This provides: “In any proceedings where evidence is admissible of the fact that the accused has committed an offence, if the accused is proved to have been convicted of the offence…by or before any court in the United Kingdom…he shall be taken to have committed that offence unless the contrary is proved.” 9. Section 74(3) is uncomplicated and it means exactly what it says: once it is proved (whether by agreement or otherwise) that the defendant was and remains convicted of a criminal offence and assuming that evidence of that fact is admissible, the prosecution is not required, merely because the defendant denies guilt, to prove that the defendant was guilty of the offence, or to assist him to prove that he was not guilty, or indeed to call witnesses for either purpose. The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. Equally, however, it is clear that the defendant cannot be prevented from seeking to demonstrate that he did not in fact commit the offence and therefore, that the jury in the current trial should disregard the conviction. If so, it follows that he should be entitled to deploy all the ordinary processes of the court for this purpose, and in particular to adduce evidence that will enable him to prove, whether by cross-examination of prosecution witnesses or calling evidence of his own that he was not guilty and that the conviction was wrong. It also follows that if the defendant does adduce evidence to demonstrate that he is not guilty of the offence, it remains open to the Crown then to call evidence to rebut the denial. 10. The danger in this situation is satellite litigation, which for obvious reasons is undesirable. That danger acknowledged, the stark principle remains that any defendant is entitled to contest his guilt in accordance with the ordinary processes of the criminal justice system, and therefore to challenge or to seek to undermine the Crown’s case against him or to advance evidence in support of his own case. That principle extends to evidential presumptions relating to his guilt of an earlier offence. To prevent him from doing so, or deny him the opportunity of adducing admissible evidence that he did not commit the earlier offence would be likely to result in an unfair trial of the present offences. 11. Mr Evans submitted that the effect of Griffith Williams J’s ruling is that, given the context of the overriding objective of the Criminal Procedure Rules 2010 , the right granted to the defendant under section 74(3) of the 1984 Act to establish that he had not committed the offence of which he was convicted, represented a fettering of the statutory right and its proper exercise. We agree that the way in which the right to challenge the conviction is exercised must be subject to proper judicial control and case management, but if what Griffiths Williams J was saying was that the overriding objective could nullify the exercise of a right granted by primary legislation, such an approach would be wrong. 12. Mr Evans accepted that speaking generally, Griffiths Williams J was right when he concluded that the fact that a defendant asserted his innocence was insufficient to require the prosecution to call witnesses from the earlier trial, and in effect, to reprove his guilt. The real issue is how to arrange the mechanics of the trial process so as to ensure that while the prosecution may adduce the admissible evidence which proves the defendant’s guilt, he should continue to be able to address and refute it, even when that evidence takes the form of a previous conviction, and without at the same time turning the present trial into a re-trial of the Huntsman offences. 13. Returning to the conclusion expressed in paragraph 41 (iv) of Griffiths Williams J’s judgment, we think that it should be reformulated in the light of the submissions made to us so as to read : “Any decision as to the evidence which the defence may adduce to prove the defendant’s innocence of the (earlier) convictions, or any of them, should properly await the defence case.” 14. In our judgment it is essential that the defendant should provide a more detailed defence statement in which, quite apart from setting out his case in relation to the offences with which he is presently charged, he should identify all the ingredients of the case which he will advance for the purposes of discharging the evidential burden of proving that he did not commit the earlier Huntsman offences. That may enable the prosecution to prepare draft admissions of fact, and also to collate the necessary evidence. The bare assertion that the defendant did not commit these offences is inadequate. 15. Informed by the defence statement the Crown will prepare its case. It is a broad rule of practice that the Crown should call all the evidence it intends to adduce to establish the defendant’s guilt before the end of its case. If that principle were to apply in a case like the present, it would in effect mean that the Crown would be obliged to re-present the evidence which led to the jury to convict the defendant of the Huntsman offences. That would nullify the statutory provisions which enable the Crown to rely on the fact that he was convicted. It would be satellite litigation indeed. Although in the ultimate analysis it will be for the trial judge to make whatever decisions are appropriate for the proper conduct of the trial, as it seems to us, it would at the very least be open to him to consider permitting the Crown to postpone its decision whether to call any evidence to confirm the guilt of the earlier offences and the correctness of the convictions until after the close of the defendant’s case. 16. In the result, to the extent that the decision by Griffiths Williams J precluded the defendant from advancing his positive case that he was not guilty of the earlier offence, we shall allow the appeal, without, as we emphasise, suggesting or implying that as a result of that ruling, the Crown must assist the defendant to establish that he is innocent of which he remains convicted or seeking to tie the judge’s hands as to how he actively manages the trial in accordance with the overriding objective and our decision on this appeal.

2010_12_17-2585.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2971/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2971

ad33b6f4e77f969bbe4e1b0e69ec3feb421f231751bb8e43d14ed35e2dfb0dd3

[2018] EWCA Civ 532

EWCA_Civ_532

crown_court

Case No: C5/2015/2634 Neutral Citation Number: [2018] EWCA Civ 532 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) IA083132012 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/03/2018 Before: LORD JUSTICE LEWISON and LORD JUSTICE SALES - - - - - - - - - - - - - - - - - - - - - Between: Sherif El Gazzaz Appellant - and - The Secretary of State for the Home Department Respondent - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: C5/2015/2634 Neutral Citation Number: [2018] EWCA Civ 532 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) IA083132012 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/03/2018 Before: LORD JUSTICE LEWISON and LORD JUSTICE SALES - - - - - - - - - - - - - - - - - - - - - Between: Sherif El Gazzaz Appellant - and - The Secretary of State for the Home Department Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Galina Ward (instructed by Sutovic & Hartigan Solicitors ) for the Appellant John-Paul Waite (instructed by The Government Legal Department ) for the Respondent Hearing date: 15 March 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Sales: 1. This is an appeal in an immigration case concerning the proposed deportation of the appellant, a national of Egypt, who falls within the definition of a foreign criminal for the purposes of the immigration regime. The appellant appeals to this court against the decision of the Upper Tribunal promulgated on 10 March 2015 by which it dismissed his appeal against a decision of the Secretary of State dated 25 March 2010 to maintain a deportation order in place in respect of him. 2. In about 2009 the appellant has developed a mental illness in the form of schizoaffective disorder, psychosis and pronounced anxiety, in relation to which he has recently been conditionally discharged from a medium secure mental health unit and for which he receives appropriate treatment, including drugs. He maintains that if removed to Egypt he would be deprived of essential support from his family and by reason of his ill-health would face very significant obstacles to integrating in Egypt to such a degree that his deportation would be disproportionate and in violation of his rights under Article 8 of the European Convention on Human Rights. 3. It should be noted that, as Ms Ward for the appellant emphasised in her submissions, this case is not one in which the individual says that he is receiving medical treatment in the United Kingdom which would not be available in the country to which he would be removed, so as to give rise to a violation of his rights for that reason under Article 3 or Article 8 of the Convention: cf GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40 ; [2015] 1 WLR 3312 . In relation to its decision, the Upper Tribunal had before it evidence about the mental health services available in Egypt on the basis of which the Secretary of State submitted that it “It had not been shown that the drugs and/or the other treatment [sc. required to manage his condition] were not accessible if he were returned to Egypt” ([22]); and the tribunal found that although the level of support in Egypt would be less than in the United Kingdom, “the necessary medication would be available to him” ([38], set out below). Factual background and grounds of appeal 4. The appellant was born in 1986 and came to the United Kingdom as a child aged 12 with his family in 1999. The family were granted indefinite leave to remain in 2003. In August 2004, when aged 17, the appellant committed an offence of violent disorder by participating in an incident in which someone was killed, for which offence he was convicted in August 2005. In September 2005 he was sentenced to three and a half years imprisonment in a young offenders’ institution for that offence. 5. In March 2006 the custodial element of the appellant’s detention came to an end and he was transferred into immigration detention with a view to his deportation. The Secretary of State notified her intention to make a deportation order and the appellant’s appeal against that notification was dismissed in June 2006. The Secretary of State proceeded to make a deportation order in relation to the appellant on 21 November 2006. 6. In November 2006, during his licence period, the appellant committed an offence of criminal damage during riots at the Harmondsworth detention centre. He was sentenced to two months imprisonment for that offence in January 2008. 7. The appellant became mentally unwell after this. In October 2009 a registered mental health nurse assessed the appellant as having a probable diagnosis of schizoaffective disorder, with possible symptoms of psychosis. In December 2009 a psychiatrist, Professor Freeman, saw the appellant and reported that it was difficult to make an assessment. He could neither confirm nor rule out a diagnosis of schizophrenia. 8. In January 2010 the Secretary of State was invited to revoke her deportation order on grounds of the appellant’s mental ill-health, but by her decision letter of 25 March 2010 under challenge in these proceedings she indicated that the deportation order would remain in place. She also issued a certificate that the appellant’s human rights claim was clearly unfounded, but in due course that certificate was quashed by consent and the appellant appealed to the First-tier Tribunal against the decision to maintain the deportation order in his case. 9. On 26 February 2010 the appellant was released from immigration detention on bail for a short period, but in March 2010 he was detained again. On 1 April 2011 he was transferred from detention to a secure hospital. On 1 August 2011 he was released from hospital on bail. In July 2012 he was arrested on suspicion of possession of cannabis and a search of his bedroom at the family home revealed a firearm and live ammunition concealed there. The appellant was detained again with a view to being tried for possession of the firearm and ammunition. 10. In the meantime, another psychiatrist, Dr Mehotra, examined the appellant and produced reports in May and June 2012 giving details of the appellant’s mental ill-health and stating his opinion that the appellant was not fit to give evidence in the tribunal proceedings. 11. By a decision dated 17 December 2012, the First-tier Tribunal allowed the appellant’s appeal against the Secretary of State’s deportation decision of 25 March 2010. However, on 25 April 2013 the Upper Tribunal set aside the tribunal’s decision for error of law. In due course the Upper Tribunal proceeded to re-hear the appellant’s appeal and to re-make the decision itself. 12. On 18 July 2013, a Home Office psychiatrist gave his view that the appellant was not fit to plead in the criminal proceedings against him for possession of the firearm and ammunition. However, the case proceeded to trial to determine whether the appellant was guilty of the actus reus of having the firearm and ammunition in his possession and whether a hospital order should be made against him pursuant to sections 37 and 41 of the Mental Health Act 1983. It seems that the appellant denied all knowledge of the firearm and ammunition and suggested that it had been put in his room without his knowledge by friends who visited him. However, on 7 November 2013 the Crown Court found the appellant guilty of committing the offence charged, although he was not fit to plead. 13. Dr Mehotra produced a further report dated 30 November 2013 to assist the Crown Court in making an appropriate order in relation to the appellant. Pursuant to section 38 of the 1983 Act the appellant was transferred to a medium secure mental health unit. 14. Dr Mehotra produced a supplementary report dated 4 July 2014, considered by the Upper Tribunal at [12]. In this report, Dr Mehotra gave his view that the appellant was suffering from schizoaffective disorder with psychotic features; the illness had a relapsing nature and the appellant’s co-morbid use of cannabis in the community together with sporadic compliance with his medication regime had complicated his prognosis; there had been some improvement in the preceding months in the hospital unit; although there were signs of recovery, his mental health remained relatively fragile and at risk of relapse in the community or in prison; so the recommended course would be to order detention for treatment under the Mental Health Act 1983, the index offence being serious enough to justify consideration of an order under section 41 of that Act. It appears from this report that Dr Mehotra’s view was that the anti-psychotic drugs prescribed for the appellant were effective in treating his mental illness, if the appellant properly complied with the medication regime. On 18 July 2014, the Crown Court made a hospital order in relation to the appellant pursuant to sections 37 and 41 of the 1983 Act. 15. For the hearing in the Upper Tribunal, the appellant adduced these reports in evidence together with a further psychiatric report dated 1 February 2015 from a Dr Arya. Dr Arya referred to family support for the appellant in the hospital, in particular from his mother. There were indications from his interview with Dr Arya that his condition improved somewhat when he complied with his medication regime. Dr Arya observed that he managed the routine of life on the ward with little prompting, but that it was difficult for her to comment on how he would manage with daily living outside that environment. She noted that the appellant’s mental state had deteriorated in relation to the immigration proceedings so that he required additional medication, support and reassurances and that he had shown good initial response to antipsychotic medication since admission. Her view was that it was necessary for the health and safety of the appellant and the protection of others that he should continue to receive medication and therapy at the hospital. 16. At the hearing in the Upper Tribunal on 9 February 2015, Dr Mehotra gave oral evidence and was cross-examined by counsel for the Secretary of State. We do not have a transcript of the hearing, but the Upper Tribunal noted Dr Mehotra’s evidence with some care at [13]-[19]. Dr Mehotra again referred to the history of relapses in the appellant’s ill-health, but emphasised the significance for him of the medication he was taking. Dr Mehotra seems to have regarded the medication as an appropriate and effective way to manage the appellant’s mental illness, although that was not the only way to manage the risk he posed to himself and others: [19]. Neither Dr Arya nor Dr Mehotra gave evidence that the appellant would be incapable of adapting to life in Egypt, especially in the context of his having access to appropriate medication there. Nor did either of them suggest that care he might receive in Egypt for his mental ill-health would be inappropriate or ineffective. 17. On that point, the main submission for the appellant, as noted at [26], was that there was evidence from a mental health social worker from June 2012 that his functioning at that time had been very poor: he had been unable to walk 50 metres down the road without needing calming; so, it was submitted, it was fanciful that he would be able to return to Egypt and fend for himself and access treatment there. However, it is clear that the Upper Tribunal focused on the more recent evidence of Dr Arya and Dr Mehotra, expert psychiatrists, as it was plainly entitled to do. 18. The Upper Tribunal had evidence before it regarding the availability of medical treatment in Egypt in cases of mental ill-health, both by relevant medication and through provision of therapy in hospital settings. 19. Despite the contention of the appellant that the support of his family in the United Kingdom was an important consideration, although family members had put in witness statements none of them came to the hearing to give evidence on his behalf. 20. The Upper Tribunal’s decision was promulgated on 10 March 2015. It applied the law as it stood at the time of its decision, including in particular the regime contained in sections 117A and 117C of the 2002 Act and the associated Immigration Rules in force at that time. It is agreed that it was correct to do so. The Upper Tribunal dismissed the appellant’s appeal against the decision of the Secretary of State to maintain her deportation order in his case. 21. The appellant appeals to this court on three grounds: (1) the Upper Tribunal erred in law in its approach to application of the relevant “very compelling circumstances” test in section 117C and reached a perverse conclusion that there were no very compelling circumstances to prevent deportation of the appellant to Egypt under section 117C and Article 8; (2) the Upper Tribunal failed properly to apply the guidance given by the European Court of Human Rights in Maslov v Austria [2009] INLR 47 regarding deportation of a foreign criminal who has lawfully been in the host country since childhood in its consideration of section 117C, in line with the approach set out by this court in AJ (Angola) v Secretary of State for the Home Department [2014] EWCA Civ 1636 at [45]-[46]; and (3) the Upper Tribunal erred in law in treating the appellant as someone to whom the presumption in favour of automatic deportation in section 32 of the UK Borders Act 2007 applied. Legal framework 22. Section 3(5)(a) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if “the Secretary of State deems his deportation to be conducive to the public good”. 23. Sections 117A and 117C in Part 5A of the 2002 Act are the central provisions for the purposes of this appeal. They provide: “ 117A Application of this Part (1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts— (a) breaches a person’s right to respect for private and family life under Article 8, and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998. (2) In considering the public interest question, the court or tribunal must (in particular) have regard— (a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. (3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2). … 117C Article 8: additional considerations in cases involving foreign criminals (1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where— (a) C has been lawfully resident in the United Kingdom for most of C’s life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh. (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.” 24. As this court held in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 , [24]-[27], section 117C(3) must be read as providing that, in relation to medium offenders (i.e. foreign criminals sentenced to more than one year’s but less than four years’ imprisonment), “the public interest requires C’s deportation unless Exception 1 or Exception 2 applies or unless there are very compelling circumstances over and above those described in Exceptions 1 and 2”. In considering whether “very compelling circumstances” exist apart from Exceptions 1 and 2, it is relevant to have regard, amongst other things, to any features of the case falling within the matters described in Exceptions 1 and 2 which might be said to make an individual’s claim based on Article 8 especially strong: see NA (Pakistan) , [29]-[33]. 25. The statutory provisions in Part 5A of the 2002 Act mirror the Immigration Rules in relation to foreign criminals which were brought into effect at the same time as Part 5A: see paras. 398 to 399A of the Immigration Rules as made in July 2014. Paragraph 398 provides, inter alia, that in relation to a medium offender whose deportation is conducive to the public good and in the public interest because of their conviction for an offence, where that offender claims that his deportation would contravene Article 8 the Secretary of State will consider whether para. 399 (equivalent to Exception 2 in section 117C) or para. 399A (equivalent to Exception 1 in section 117C) applies, “and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.” Therefore, although section 117A(1) only says that Part 5A applies “where a court or tribunal is required to determine” whether a decision made under the Immigration Acts breaches a person’s rights under Article 8, the Immigration Rules impose equivalent obligations on the Secretary of State herself. In any event, since the lawfulness of a decision by the Secretary of State by reference to Article 8 will be determined by the tribunal on an appeal according to the statutory provisions in Part 5A, it is plainly permissible (if, indeed, it is not a requirement in public law) for her to make her decisions by having regard to those provisions as well. 26. Section 32(5) of the 2007 Act provides that “The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).” Section 33 provides for a number of exceptions to this general obligation, including where deportation would breach the person’s Convention rights, i.e. including under Article 8 (Exception 1, set out in section 33(2)), and where a hospital order made under section 37 of the Mental Health Act 1983 has effect in relation to that person (Exception 5, set out in section 33(6)). Section 33(7) has the effect that the application of Exception 5 does not prevent the making of a deportation order, but “results in it being assumed neither that the deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good.” 27. In other words, if an exception applies within the regime set out in sections 32 and 33 of the 2007 Act, it is left to the Secretary of State’s discretion and judgment whether to assess that deportation would be conducive to the public good and that a deportation order should be made, subject always to any other legal obligations to which she may be subject in that regard. For example, if the Secretary of State assesses that deportation would breach a person’s Convention rights, Exception 1 in section 33(2) will apply thereby engaging section 33(7), but the Secretary of State will be prevented from making a deportation order by virtue of her general duty under section 6(1) of the Human Rights Act 1998 to act in a way which is compatible with that person’s Convention rights. Similarly, if Exception 5 applies (section 33(6)), the Secretary of State has a discretion to assess that deportation of the person is conducive to the public good for the purposes of section 3(5)(a) of the 1971 Act and she may be obliged to make a deportation order if relevant provisions of the Immigration Rules and sections 117A and 117C of the 2002 Act require that. Discussion Ground (1): “very compelling circumstances” 28. Since the appellant’s right to be in the United Kingdom was truncated by the deportation order made in 2006, the Tribunal found that the appellant could not bring himself within Exception 1 in section 117C because he had not been lawfully resident in the United Kingdom for most of his life: [34]. There is no appeal in respect of this part of its reasoning. Exception 2 is not relevant in this case. 29. The question for the Tribunal, therefore, was whether there were “very compelling circumstances” in the appellant’s case to outweigh the strong public interest in deportation of a foreign criminal in the medium category. The Tribunal correctly identified this as the relevant issue which it should address: see the last sentence of [36] and also the first sentence of [37] and the penultimate sentence of [38], as set out below. This was so even though the Tribunal’s decision pre-dated the decision of this court in NA (Pakistan) which made clear the proper interpretation of section 117C(3), no doubt because the Tribunal had in mind the way in which the relevant Immigration Rules identified this as the test. 30. In addressing itself to that issue, the Tribunal noted the points made by Ms Ward on behalf of the appellant, in particular as summarised by it at [37] as follows: “As regards the issue of whether there are very compelling circumstances in this case, these were essentially summarised by Ms Ward in her submissions referring to the age of the appellant when he came to the United Kingdom, his age when he committed the most serious offence, the amount of time he had been in the United Kingdom, the need for family support to enable him to benefit from the treatment, the need for the treatment itself, his inability to fend for himself on return and the need to ensure he does not become a danger to himself or others and the likelihood of a relapse should he come under the influence of others.” The Tribunal did not dismiss any of these points as irrelevant to the balancing exercise it had to perform for the purposes of applying the “very compelling circumstances” test and Article 8. It is clear that the Tribunal did take these points into account as relevant factors. 31. At [38] the Tribunal judge gave his assessment of the appellant’s case on very compelling circumstances: “I should say that in this regard that I accept in its entirety the evidence of Dr Mehotra and the other medical evidence that has been put in. I also note the background evidence concerning the difficulties the appellant would experience on return to Egypt in terms of such matters as his vulnerability, the need for support from his family in accessing and taking medication and lack of the same level of medical and other support that he would have there, albeit bearing in mind that it does appear that the necessary medication would be available to him. On the other side of the line is of course the very serious offence of which he was convicted and for which he was sentenced to three and a half years in prison, and the more recent offence of possession of a firearm and ammunition, as well as the criminal damage offence. I bear in mind also the point made by Ms Ward that the appellant does not pose a risk of harm to the community given that he will remain hospitalised until such time as it is decided that he is safe to go into the community and then would be subject to significant conditions. There are significant obstacles to the appellant’s integration into Egypt, but I am not persuaded that they would be very significant, and nor do I accept that the circumstances that he would face on return, problematic for him though they would undoubtedly be, are such as to meet the very high threshold of very compelling circumstances. His appeal under Article 8 is therefore dismissed.” 32. Ms Ward submits that the Tribunal has not sufficiently explained its reasoning on the very compelling circumstances test which it correctly identified it should apply. I do not agree. The reason for the decision is clear enough. The Tribunal recognised that there were strong points to be made for the appellant, in particular by reference to Maslov (see below) and his medical condition. However, the Tribunal considered that there were very strong countervailing factors, in terms of the public interest in deportation of an individual with the appellant’s record of offending. The overall effect of the balancing exercise was that in the Tribunal’s view it could not be said that the appellant had shown that there were very compelling circumstances why he should not be deported. 33. The Tribunal found that the points made by reference to the appellant’s medical condition fell to be qualified somewhat by the facts that appropriate medication would be available in Egypt, as the Tribunal was entitled to find on the evidence, and there was in place in Egypt a system for treatment of people with mental illness which, even though it might not be of the same standard as is available in the NHS, would mean that he would get appropriate treatment if he needed it: see also [32]. Ms Ward submitted that if the appellant suffered a relapse he would not be able to access treatment on his own initiative. But there is no indication that Egyptian society and its medical system would fail to pick up the appellant as a person suffering from serious mental illness, if that were the result, and then supply appropriate medical assistance much as society and the health system in the United Kingdom would do, without any necessity for self-referral. 34. Since the issue was whether it would be disproportionate under Article 8 to deport the appellant to Egypt, it was appropriate for the Tribunal to have regard to the comparison between the health care systems and the treatment available in the two countries as it did. The Tribunal was entitled to find that such gap as there was between them was not sufficient to indicate the treatment available to the appellant if he were removed to Egypt would make his removal disproportionate, particularly when applying the “very compelling circumstances” test. In that regard, it is in fact difficult to distinguish this case from a pure medical case such as was addressed in GS (India) . The Convention rights of the appellant do not have the effect that it is incumbent on the United Kingdom to go on providing him with medical treatment here for his mental ill-health. 35. So far as concerns other aspects of living in Egypt if removed there, the appellant had been brought up in Egypt and had made frequent trips there to see family members, as the Tribunal noted had been the position down to 2006: [31]. It was not suggested that the appellant could not speak the language, nor that he lacked any understanding of how society operates in Egypt. This is in contrast to the position of the individual in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 ; [2016] 4 WLR 152 , an authority particularly relied on by Ms Ward on this appeal. Also, Kamara involved a person who had come to the United Kingdom at a significantly younger age (six) than the appellant. Contrary to Ms Ward’s submission, it is not an authority which shows that the Tribunal erred in its assessment in the present case. She submitted that, if removed to Egypt, the appellant would not be able “to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships …” ( Kamara , [14]). However, the appellant would have broadly similar possibilities to operate on a day-to-day basis in Egypt and build up human relationships there as he has in the United Kingdom. Those are limited in both cases by his mental ill-health, and the treatment for that in Egypt might not be at the same level as in the United Kingdom. But as already pointed out above, such gap as there is in that regard does not indicate that his removal to Egypt would be disproportionate for the purposes of Article 8. 36. In the circumstances of this case, I consider that the Upper Tribunal was entitled to make the assessment it did that whilst the appellant would face significant problems of integration in Egypt, they could not be characterised as very significant problems of integration. The Tribunal was not required to assess the issue of “very compelling circumstances” and proportionality under Article 8 using this formulation, but it did not err in doing so. The scope for a degree of integration in Egypt was likely to be broadly equivalent to that in the United Kingdom, with an ongoing need for medical assistance and some relapses into more severe phases of illness, in relation to which appropriate health support would be available. That was so albeit there would be likely to be less direct family support and the healthcare services available might not be at the same level as in the United Kingdom, which are the reasons why the Tribunal assessed in the appellant’s favour that there would be significant (albeit not very significant) problems for him regarding integration in Egypt. 37. Ms Ward submitted that the Tribunal erred because it did not give proper weight to the regime set out in Part 5A of the 2002 Act and the relevant Immigration Rules and failed to assess the appellant’s case in light of that regime: see now the guidance given by Lord Reed JSC in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 ; [2016] 1 WLR 4799 , in particular at [53]. This is a hopeless contention. The Tribunal understood very well the significance of the provisions in that regime, as is clear from its reference to the significant parts of it in [38], set out above. I note in particular the reference in [38] to the absence of very significant obstacles to integration in Egypt (cf section 117C(4)(c) and the corresponding rule in para. 399A of the Immigration Rules) and the reference to the high threshold of very compelling circumstances (cf para. 398 of the Immigration Rules and section 117C(3) as interpreted in NA (Pakistan) ). 38. Ms Ward further submitted that the Tribunal erred in its assessment for the “very compelling circumstances” test because it failed to address the issue by first finding to what extent the circumstances of the appellant departed from Exception 1 as specified in section 117C(4) and then deciding whether the extent of the notional gap could be overridden by the factors relied on by the appellant. I cannot accept this submission either. The Tribunal properly determined that the appellant’s case did not fall within Exception 1. The only question then remaining was whether he could show that there were “very compelling circumstances” at a level sufficient to outweigh the strong public interest that he should be deported. The Tribunal was entitled to approach that as a holistic exercise, taking account of a range of factors as it did. It was not incumbent on it to force its reasoning into what is, to my mind, the rather unnatural straitjacket proposed by Ms Ward. The nature of the exercise is as described by Lord Reed in Hesham Ali at [53] and does not have to follow any particular format, so long as the tribunal or court has weighed all the relevant factors bearing on the question it has to determine. 39. Finally, Ms Ward submitted that the conclusion arrived at by the Tribunal was perverse. For the reasons given above, this submission is not sustainable. The conclusion arrived at by the Tribunal on this issue was one which was properly open to it on the evidence. Ground 2: Failure to have regard to Maslov 40. Ms Ward submitted that the Tribunal failed to apply the guidance in Maslov within the context of the foreign criminal regime as it should have done. In her submission, the proper approach in a foreign criminal case involving a person who came to the United Kingdom as a child to whom the guidance in Maslov applies is for the Secretary of State and a court or tribunal to bring that guidance into account as a factor in the context of the “very compelling circumstances” test. 41. I agree with this. The “very compelling circumstances” test is the rubric which structures the Article 8 proportionality balancing exercise in a case like this, so any factors which are relevant to that exercise, including those emphasised in the guidance given in Maslov , fall to be brought into account in the context of applying that test. 42. I note in passing that the authority Ms Ward cited in support of this - AJ Angola - is in fact an authority on the 2012 version of the Immigration Rules in relation to foreign criminals, which are different from the relevant provisions in this case in section 117C and the corresponding 2014 Immigration Rules. However, the basic point is the same in the latter regime, as NA (Pakistan) indicates: see [61]. 43. The difficulty for Ms Ward on this ground of appeal is that it is clear that the Tribunal did in fact approach the case in the way she submitted it should have done. At [36] the Tribunal directed itself by reference to AJ (Angola) and made the point that assessment of the application of the Maslov guidance had to be integrated “within the framework of the new Rules and asking … whether there were very compelling reasons to outweigh the public interest in deportation.” That is the correct approach. 44. The Tribunal also made reference to Maslov at [31] and plainly sought to apply the guidance from that judgment to the case in hand. It should be noted that the factors referred to by the Tribunal at [37], set out above, include those referred to in the guidance in the Maslov case at [75], where the ECtHR said: “In short, the court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify explusion. This is all the more so where the person concerned committed the offences underlying the measure as a juvenile.” 45. Having correctly stated the relevant test, incorporating consideration of the guidance in Maslov in its consideration whether the “very compelling circumstances” test was satisfied, the Tribunal was entitled to reach the conclusion it did in [38] that this test was not satisfied. Ground 3: Section 32 of the 2007 Act 46. When the deportation order was made in 2006, the 2007 Act did not exist. When the Secretary of State took her decision in March 2010 to maintain that order in place the 2007 Act was in force, the appellant was not yet subject to a hospital order under the 1983 Act and the Secretary of State was bound to confirm the deportation order unless the human rights exception in section 33 of the 2007 Act applied. The Secretary of State decided that there would be no breach of the appellant’s Convention rights if he were deported. 47. The Upper Tribunal was required to apply the legal regime in place at the time of its decision in 2015 in light of the facts as they stood then. By that time, the regime in Part 5A of the 2002 Act was in place and the appellant was subject to a hospital order, with the result that Exception 5 in section 33 of the 2007 Act was applicable. 48. It is unclear whether Ms Ward or the advocate for the Secretary of State pointed out to the Upper Tribunal the significance of the hospital order in relation to the 2007 Act. I rather think they did not, since there is no reference to the point in what otherwise appears to me to be a careful analysis by the Tribunal. At all events, at [30] the Tribunal identified the issue in the appeal as being the Article 8 rights of the appellant, “bearing in mind that under section 32 of the UK Borders Act 2007 the respondent is required to make a deportation order” in relation to a foreign criminal unless deportation would breach his Convention rights. This was an error, because the making of a hospital order in relation to the appellant removed the presumption in favour of deportation under section 32 of the 2007 Act. 49. However, this was not a material error in the Tribunal’s analysis, because that analysis proceeded by reference to section 117C. That provision is directed to assessment of a foreign criminal’s Article 8 rights in relation to a proposed deportation and stipulates that the deportation of foreign criminals is in the public interest (section 117C(1)) and also that in the case of a medium level foreign criminal the public interest requires deportation unless Exception 1 or Exception 2 applies or there are very compelling circumstances sufficient to outweigh that public interest (section 117C(3)). There is no exception to the application of section 117C if a hospital order is in effect in respect of a foreign criminal. 50. Hence, so far as the present case is concerned, section 117C covers the same ground as section 32 of the 2007 Act and provides that the public interest requires deportation unless the individual can bring himself within either of the Exceptions or can show very compelling circumstances. The substantive effect of section 117C in relation to the appellant is as strong - indeed stronger, because the provision itself structures and limits the scope for successful Article 8 arguments to be made - than the effect of section 32(5) and section 33(2) of the 2007 Act would have been, had no hospital order been made in respect of him. The Tribunal’s failure to appreciate the effect of the hospital order in the context of the 2007 Act therefore had no material bearing on the outcome of the appeal. Conclusion 51. For the reasons given above, I would dismiss this appeal. Lord Justice Lewison: 52. I agree.

2018_03_21-4230.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/532/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/532

36d3cfe34ff8d72c95efe1e06fa3d37c5e33cfaacbada9c3a70dde6bca815e02

[2023] EWCA Crim 1371

EWCA_Crim_1371

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1371 CASE NO 202302185/A3 Royal Courts of Justice Strand London WC2A 2LL Friday, 6 October 2023 Before: LORD JUSTICE EDIS MRS JUSTICE STACEY DBE HIS HONOUR JUDGE LEONARD KC (Sitting as a Judge of the CACD) REX V TIRMINDER SINGH LALLIE __________ 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 J RICHARDS appeared on behalf of the Appellant J U D G M E N T 1. LORD JUSTICE EDIS: This is an appeal against sentence with leave of the single judge. The appellant is now 38 years old. On 8 November 2022 in the Crown Court at Wolverhampton he entered a late guilty plea to an allegation of assault occasioning actual bodily harm. On 21 March 2023 he entered a guilty plea to an offence of using threatening abusive or insulting words or behaviour with intent to cause fear or provoke unlawful violence, contrary to section 4 of the Public Order Act 1986 . That is a summary only offence. He was able to plead guilty to it because the indictment had been amended to include a count of affray. Originally the appellant had been charged with an offence of assault on an emergency worker. He had elected trial. That allegation appeared on the indictment. Subsequently, as a result of discussions between the parties, as we have said, an allegation of affray arising out of the same facts was added to the indictment and that enabled at that stage and for the first time the guilty plea to the alternative summary only offence under section 4 of the 1986 Act to be tendered. 2. Ultimately, following a process which we shall briefly describe in a moment, the appellant was sentenced to immediate custodial terms of 26 weeks for the assault occasioning actual bodily harm and six weeks for the section 4 offence to run consecutively. That was a total of 32 weeks' imprisonment. That sentence was imposed with effect from 29 June 2023. 3. The appellant has in fact been released under Home Detention Curfew having served nine weeks of that sentence. He is therefore here in court before us, at liberty but subject to the terms of that curfew. 4. Briefly, the facts of the two offences are as follows. The first offence in time, the assault occasioning actual bodily harm, was committed on 4 August 2021 against a victim named Alan Jarman. Mr Jarman was a painter who was at about 3 o'clock in the afternoon packing his equipment away in his van which was parked in the street. The appellant was driving a Range Rover along the road nearby. Mr Jarman thought he was driving too fast so made a gesture at him which was intended to say that the appellant should slow down. In one sense he did - in fact he came to a complete halt. However, that was not to reduce the danger that he may have been presenting by his driving, it was so that he could confront Mr Jarman. The appellant had formed the impression that Mr Jarman had called him a "brown bastard". He lent out of his window, shouting and swearing at Mr Jarman and then got out of the car. He approached him shouting, "I'll knock your block off". There was a stand-off in the street. Mr Jarman asked him whether he was on drugs and the appellant said, "I could be". 5. Mr Jarman, it was agreed for the purposes of sentencing, had a pole in his hand. At that point he hit the appellant twice over the head with it. That was the first physical violence that was used during this confrontation. Although the confrontation itself had been inspired by the appellant's behaviour, it is not the case that he was the first person to strike a blow. He did however then headbutt Mr Jarman to the forehead, causing him to stagger back. This was followed by punches which caused him to fall to the ground. He then held him in a headlock, hitting him three or four further times. 6. Mr Jarman said that the appellant was wearing a steel bangle around his wrist which he apparently pulled over his fist in order to make those blows more forceful while he was in the course of striking them. Some neighbours came out and broke this incident up and it ended without further violence. Mr Jarman was taken to hospital where wounds in his scalp had to be glued back together. 7. The appellant initially said that he acted in self-defence. His guilty plea was tendered on the basis that he had acted in self-defence but that he had overreacted in self-defence and went far beyond what was reasonably necessary to prevent Mr Jarman causing him any injury. 8. Subsequently, and while on bail, on 1 July 2022 the appellant was encountered by two police community support officers. He was driving a vehicle. They were concerned about the manner in which he was driving it. When he pulled up outside a shop they attempted to speak to him about his driving. He was told to wait where he was while the police officers parked their vehicle, but he went into the shop while they were doing that. When he came back to his van the police officers tried to speak with him but he became aggressive and gesticulated with his hands, saying that they were lying and that there had been nothing wrong with his driving at all and it was in any event none of their business. He went back to his van. One of the police community support officers stood by and inside the open door of the van so that he (the appellant) could not close it. He nevertheless tried to do that while the police community support officer was in the way. He did this twice and then got out of the vehicle and was again aggressive towards the police community support officer, pointing his finger in the officer's face and saying he did not like the police and that they should "fuck off". He then got in his van and drove away. Subsequently he was arrested and charged with assaulting an emergency worker. The matter was dealt with in the way that we have already described. 9. The case came for sentence before District Judge MC Lower sitting in the Wolverhampton Combined Court on 29 June 2023. The judge can be commended for the brevity of his sentencing remarks but unfortunately the attempt to achieve brevity resulted in one or two aspects of the sentencing process being rather unclear. In particular, the extent to which the judge thought it right to give credit for the guilty pleas which had been tendered is not clear. In the result the sentence of the court, as pronounced, was a total term of 12 months' immediate imprisonment. That was comprised of a sentence of 12 months for assault occasioning actual bodily harm with a concurrent term of six weeks' imprisonment for the section 4 public order offence. In relation to the matter of credit for the guilty plea, the judge said that he would give "some limited credit" for those pleas but said no more than that. 10. The judge observed, as is the case, that the appellant has no previous convictions and presumably took that into account. He said: "I suspect that finding yourself at court is more of a punishment to you than anything else and you are now likely to be back in court again." 11. The judge dealt with the assault occasioning actual bodily harm guideline by referring to the mitigation to be derived from the plea which was on the basis of excessive self-defence, but also observed that the use of the bangle over the knuckles was the equivalent of a weapon. He said that this should lead to a starting point of one-and-a-half years' imprisonment, with a range between 36 weeks to two-and-a-half years. For the public order offence he said that this would normally be dealt with in the Magistrates' Court where the guideline would suggest a medium level community order with a range of a fine up to 12 weeks' imprisonment. 12. The judge had a pre-sentence report. The pre-sentence report observed, as may have become obvious from what we have already said, that the appellant has difficulty controlling his temper. It appears that he suffers from anxiety and depression which may perhaps have something to do with that, although the causal link is not clear. 13. The pre-sentence report suggested that these matters could be dealt with by way of a community order with an unpaid work requirement and a 25-day rehabilitation activity requirement. The judge did not refer to that recommendation or explain why it was not to be accepted. Perhaps more significantly he did not either in the course of his sentencing remarks explain why the custodial sentences which he had decided were required could not be suspended. Counsel after the sentencing remarks were complete asked for an explanation of why the sentences were not suspended and the judge said: "I have considered it however I do not consider it just to suspend the sentence of custody in all the circumstances of the case." 14. Even at that stage the judge did not refer to the relevant guideline on the imposition of sentences. 15. There appears to have been some further discussion at that hearing during which the judge observed: "Well, even if you are right about that, Mr Richards, there was a headbutt." 16. The case then, on 24 August 2023, came before the court again in circumstances which are not fully explained. The appellant was not present but a hearing in open court took place at which he was represented. Mr Richards, who has appeared on his behalf before us and who appeared at the original sentencing hearing on his behalf was not present and through no fault of his own has been unable to explain what we are about to set out. The judge said this: "It's my error, I am sure, but when I sentenced Mr Lallie on 29 June, I intended to sentence him to twenty-six weeks for the offence of assault occasioning actual bodily harm, with six weeks to be served consecutively for a section 4 Public Order Act offence making a total of thirty-two weeks, compensation ordered, the surcharge reduced to zero to prioritise compensation and no order as to costs. I understand that Mr Lallie has made an application to the Court of Appeal asking for an appeal against sentence to be considered, and the registrar has been in touch with me possibly with counsel as well, to ask that I correct my sentence under the slip rule in open court, which I am more than willing to do subject to any other representations that either counsel want to make." 17. The judge then said that the sentence was intended to be a different sentence from that which he had pronounced on 29 June, namely 26 weeks for assault occasioning actual bodily harm (half the term which was actually imposed) and a consecutive term of six weeks for the section 4 Public Order Act offence, rather than, as was originally imposed, a concurrent term. 18. It is not wholly clear to us why there was a slip rule hearing or what exactly had gone wrong with the process so that the judge initially pronounced a sentence other than the one which he intended to pronounce but nevertheless he did correct the position and reduce the sentence and that was an effective order which was made. It is that reduced sentence against which this appeal is now brought. Discussion 19. It appears to us that the judge did err in failing first to consider what alternatives there were which were available to the court to an immediate sentence of custody. Two clear alternatives presented themselves to that course. The first was that suggested in the pre-sentence report and the second was the option of suspending the term which was imposed. That second option was available to the judge given the length of the sentence which was imposed on both occasions, which was in total less than two years, and in those circumstances the guideline requires the court to consider suspension of the sentence before it can be imposed as an immediate sentence. There was no express consideration of either those two alternative courses by the judge and there is therefore no explanation from him as to why they did not commend themselves to the court. In our judgment, given the fact that Mr Lallie at the date of sentence was 37 years old and of good character, and given the fact that it was agreed for the purposes of sentencing that the more serious of the two offences by far had been committed as a result of an assault against him (in that the victim used the first violence between the two), this was a case which did not require an immediate sentence of imprisonment. The exercise therefore which the judge ought to have been embarking on was a consideration of which of the two alternative courses was available to the court which would not involve an immediate sentence of custody. 20. In our judgment, sentencing on 29 June 2023 in the circumstances which then prevailed the option of a community order suggested by the author of the pre-sentence report would have been a perfectly appropriate outcome. Equally, the alternative option of a suspended sentence with or without some additional requirements would have been another perfectly appropriate option and the task of the judge was to choose between those. 21. Accordingly, we will allow this appeal and we will substitute for the sentences imposed by the judge different sentences of our own. We consider that on the facts of this case the decision to impose an immediate sentence of custody on this man of good character was manifestly excessive. We are not of course sentencing on 29 June of this year. Events have taken place since then which have changed the position and we consider that it would not in the circumstances be appropriate to impose a community order. This appellant has in fact served all of the immediate sentence which he is required to serve under the current regime. That current regime includes Home Detention Curfew and after nine weeks he is now free to that extent. We therefore do not consider it is appropriate to impose a community order. The case plainly passes the custody threshold and we consider that broadly speaking adopting the approach to the guideline of the judge sentences of 20 weeks in relation to the assault occasioning actual bodily harm and a consecutive term of six weeks in respect of the section 4 public order offence would have sufficed. We therefore impose those sentences in the place of those imposed by the judge. Those sentences include a modest reduction for the late pleas. In the case of the assault offence the reduction is 10%. The plea to the public order offence was entered on the first occasion when that was possible, but was not foreshadowed by any earlier admissions of guilt to it. That sentence would have been 8 weeks after a trial and has been reduced by 25%. Those sentences will be suspended for 18 months. 22. We do consider it appropriate to attach as a requirement to that suspended sentence the 25-day rehabilitation activity requirement. That was an appropriate option in June and again in August and in our judgment remains so now. We are confirmed in that view by the very sensible approach of the appellant himself who tells us through Mr Richards, his counsel, that following his release from imprisonment he has found his dealings with the Probation Service while on licence to be of considerable value to him. That, it seems to us, shows a sensible approach to his current position. He is a man of good character. He has found himself involved in two separate acts of criminality both of which involved unrestrained and uncontrolled behaviour in public, one of them involving the use of significant unlawful violence. Plainly he has, or at least had at those times which are now quite remote, a problem with anger. The fact that he has acknowledged that and regards the assistance of the Probation Service as useful is reassuring and encouraging. We will therefore attach the rehabilitation activity requirement of 25 days to the suspended sentences. The other orders made by the judge in relation to compensation and so on are unaffected and 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.

2023_10_06-5852.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1371/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1371

e911edcaff522465574dcb3593724eec76ca1ae01eeb1317530d2a0f37eba313

[2020] EWCA Crim 487

EWCA_Crim_487

crown_court

Neutral Citation Number: [2020] EWCA Crim 487 Case No: 201902234 C3 / 201902236 C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT LEICESTER HHJ DEAN QC T20177398 / T201807263 / T20180446 Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/04/2020 Before : THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MRS JUSTICE CARR DBE and MR JUSTICE GOSS - - - - - - - - - - - - - - - - - - - - - Between : JOSHUA HORNE Appellant - and - The Quee

Neutral Citation Number: [2020] EWCA Crim 487 Case No: 201902234 C3 / 201902236 C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT LEICESTER HHJ DEAN QC T20177398 / T201807263 / T20180446 Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/04/2020 Before : THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MRS JUSTICE CARR DBE and MR JUSTICE GOSS - - - - - - - - - - - - - - - - - - - - - Between : JOSHUA HORNE Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Graeme Wilson (instructed by Paytons Solicitors ) for the Appellant Miss Nicola Moore (instructed by CPS Appeals & Review Unit ) for the Respondent Hearing dates : 24 th March 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Judgment Approved by the court for handing down. Lord Justice Fulford: Introduction The Issue Double-click to enter the short title 1. The appeal against conviction in this case involves the admissibility of the guilty plea of one of two alleged co-conspirators in a closed conspiracy. There is, additionally, a renewed application to appeal against sentence, following refusal by the single judge. The Facts 2. On 3 December 2018 in the Crown Court at Leicester, the appellant pleaded guilty to conveying a list B article into or out of prison and 8 counts of the unauthorised transmission of an image or sound by electronic communication from within a prison (“the telephone offences”). 3. On 16 May 2019 at the same venue the appellant was convicted of an offence of conspiracy to pervert the course of justice contrary to section 1 Criminal Law Act 1977. The count was in the following terms: “Joshua Horne and Ryan Parry between 7 November 2017 and 1 July 2018 conspired to pervert the course of public justice by interfering with the witnesses in a case namely Liam Roberts and Barry Roberts” 4. He was acquitted of attempted murder, causing grievous bodily harm with intent and attempting to cause grievous bodily harm with intent. 5. The prosecution offered no evidence on counts of dangerous driving and using a motor vehicle without insurance. 6. On 23 May 2019, the appellant was sentenced to 3 years’ imprisonment for the offence of conspiracy to pervert the course of public justice, with a consecutive term of 9 months’ imprisonment for conveying a list B article and concurrent sentences for the 8 telephone offences. The overall sentence, therefore, was 3 years 9 months’ imprisonment. 7. Daniel Horne pleaded guilty to doing an act tending and intended to pervert the course of public justice. On the first day of the trial, Ryan Parry pleaded guilty to conspiracy to pervert the course of public justice and was sentenced to 20 months’ imprisonment. 8. Before this court, the appellant appeals against his conviction on the count of perverting the course of public justice, with the leave of the single judge. He applies for an extension of 2 days in which to renew his application for leave to appeal against sentence, following refusal by the single judge. 9. The relevant facts can be shortly described. On 7 November 2017, Naquan Powell was hit by a BMW X5 on Hillsborough Road, Leicester. Liam Roberts, a friend of Naquan Powell, saw the collision. Although not immediately, he identified the appellant as the driver and told his father, Barry Roberts, that the appellant had been driving (this latter communication was introduced as res gestae evidence). It was the prosecution’s case that the appellant had deliberately driven at Nequan Powell and that he had intended to run over Liam Roberts at the same time. Nequan Powell suffered life-changing injuries as a result of the collision. The appellant stayed at a hotel in Leicester for the night following the accident, and thereafter stayed at a variety of hotels outside Leicester. He was arrested near Southampton on 21 November 2017. 10. Liam and Barry Roberts provided witness statements to the police. However, before the date originally set for trial in May 2018, Liam Roberts received a telephone call from the appellant during which he was told to say that he had seen a black male driving the BMW. Barry Roberts was contacted by Ryan Parry who informed him that he had spoken with the appellant, and that Barry Roberts should go to a solicitor in order to change his witness statement. Thereafter, Barry Roberts was contacted by the appellant who told him to “withdraw” the witness statement he had made, stating instead that he had seen a mixed-race man driving the BMW. On the Sunday before the date when the trial was originally set down to commence, Barry Roberts was visited at his home by Daniel Horne who offered him money and a holiday in return for not attending court. The Respective Cases 11. It was the prosecution’s case, therefore, that the appellant had conspired with Ryan Parry to persuade Liam and Barry Roberts either to alter their evidence or to avoid testifying altogether. In addition to the account of Liam Roberts and Barry Roberts, the Crown relied on evidence from Liam Roberts’ grandmother, Michelle Roberts, as to contact between the appellant, Ryan Parry and Liam Roberts. The appellant admitted communicating with Liam Roberts in advance of the trial and the prosecution relied on his previous convictions, which included growing cannabis and robbery. In relation to the latter offence, he admitted lying to the police in giving a false alibi. The prosecution suggested that this demonstrated a preparedness on his part to provide a false account of his whereabouts in order to escape the consequences of his actions. Additionally, the prosecution introduced evidence of the appellant’s lies to the police as to his movements on 7 November 2017, why he had “gone on the run” and his links to the BMW motor car. The appellant abandoned his mobile telephones and replaced them with new devices, one of which he smuggled into prison following his arrest. There was evidence that the appellant had used two telephones from prison to contact Liam Roberts and Barry Roberts. It was Barry Roberts evidence that he spoke to the appellant who told him that he should go to a solicitor to retract his statement and to expect a telephone call from Ryan Parry. Finally, the Crown, with the leave of the judge, introduced (only towards the end of the trial) evidence of Ryan Parry’s guilty to plea to conspiracy to pervert the course of public justice as some support for the truthfulness of Liam and Barry Roberts. This was admitted pursuant to section 74 (1) Police and Criminal Evidence Act 1984: Conviction as evidence of commission of offence. (1) In any proceedings the fact that a person other than the accused has been convicted of an offence […] 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. 12. The charge of conveying a list B article into or out of prison and the 8 telephone offences related to the use by the appellant of mobile telephones whilst in custody to organise, as alleged by the Crown, the interference with the evidence of Liam and Barry Roberts. 13. The appellant contended at trial that he had not been the driver of the BMW motor car. He denied he had agreed with Ryan Parry to persuade Liam and Barry Robert not to give evidence. Indeed, he suggested, to the contrary, that he had been trying to encourage them to testify, particularly since he was aware Liam Roberts had initially said he was unable to identify the driver of the vehicle. He did not accept that he had asked Daniel Horne to visit Barry Roberts at his home. The Conviction Appeal Ryan Parry’s Guilty Plea 14. The judge permitted Ryan Parry’s plea to conspiring with the appellant to pervert the course of public justice by interfering with the witnesses in the case, namely Liam Roberts and Barry Roberts, to be introduced on the following basis: “In my judgment this is one of those rare occasions where if a formulation is not possible by way of an admission then the Crown should be permitted to adduce evidence of his guilty plea to count 5 and I will direct the jury that that guilty plea is not evidence against Mr Horne on count 5 or any other count on the indictment; that in the unusual circumstances of this case it does not have any meaning other than that it demonstrates that some, at least, of what Barry Roberts, Liam Roberts and Michelle Roberts have said is true and that that is relevant in turn to their overall credibility in this case.” The submissions 15. In essence, it is submitted by the appellant that the judge erred in admitting the evidence of Ryan Parry’s guilty plea, given this was alleged to have been a “closed conspiracy” consisting solely of the appellant and Ryan Parry. In those circumstances it is submitted that it was inevitable that the jury would have concluded, however the judge directed them, that Parry’s plea demonstrated the appellant’s guilt. 16. The summing up on this issue was as follows: “What about count 5? Well now a conspiracy is no more than an agreement to do something unlawful. No formality is required, the agreement is usually tacit, that is inferred from the actions of the participants. In this case you know that Ryan Parry has pleaded guilty to count 5. You have heard about Ryan Parry’s plea of guilty for one reason and one reason only, and that is because it demonstrates (that) Liam Roberts and Barry Roberts have told the truth about aspects of the case about Parry’s contact with them, and his efforts to influence whether they gave evidence and what they should say in their evidence. Beyond that Parry’s plea is of no significance and it is not evidence that you can take into account at all other than how it may provide some support for the truthfulness of Liam and Barry Roberts. To prove count 5 the prosecution must demonstrate, make you sure, that Joshua Horne agreed with Ryan Parry that they would do acts tending, and (intended) to pervert the course of justice, namely that they would contact Liam and Barry Robert with a view to influencing them concerning whether they would testify, that is give evidence, what they would say in their evidence. […]” Later the judge added: “I will deal with the cross-examination of Barry Roberts in a moment, but you will remember that I gave you a direction about the significance of Ryan Parry’s guilty plea, that it did no more than confirm that both Liam and Barry Roberts had told the truth about certain aspects of what he, Barry Roberts and Liam Roberts were saying about Ryan Parry’s involvement. The credibility, the truthfulness of Liam and Barry Roberts, has been very much attacked in this case, but you can take into account when deciding whether they have told the truth about what they say concerning Joshua Horne that they have told the truth about what Ryan Parry did […] That is the only relevance of the conviction of, the guilty plea of Ryan Parry, and the conviction and guilty plea of Daniel Horne.” 17. The respondent submits that the law does not prohibit the introduction of evidence of this kind even in a closed conspiracy, and it is suggested that the judge admitted it on a valid basis (see [14] above), and directed the jury appropriately. Ms Moore, for the Crown, highlights that in the summing up the judge directed the jury that this evidence went no further than the truthfulness of Liam Roberts and Barry Roberts. It is suggested that the plea was admissible for the limited purpose of demonstrating that the witnesses were telling the truth about the visits and calls on the part of Ryan Parry. The prosecution relies on R v Denham [2016] EWCA Crim 1048 ; [2017] 1 Cr App R 7 as support for the proposition that the judge must ensure that the introduction of this evidence does not create unfairness. In R v Shirt [2018] EWCA Crim 2486 ; [2019] 1 Cr App R 15 , this court emphasised that the issue is not whether the introduction of the evidence creates difficulties for an accused, but whether it would make the proceedings unfair (see particularly [35]). 18. In addition, Ms Moore submits that even if Ryan Parry’s plea should not have been admitted, the case against the appellant was strong and his conviction on this count is safe. It is stressed that there was abundant evidence of telephone contact between Ryan Parry and the appellant during the relevant time, along with the communications with Liam Roberts and Barry Roberts. In those circumstances it is argued by Mr Moore that there was ample evidence in addition to the conviction of Parry and the evidence relating to the attempted murder and grievous bodily of the appellant’s involvement in calls to Liam Roberts and Barry Roberts, and “the use of Ryan Parry as a conduit for messaging about tailoring evidence”. Discussion 19. It is material to note that the appellant’s case was that he did not know what Ryan Parry had been doing or saying when he contacted Liam Roberts or Barry Roberts. He accepted that he had made telephone calls to these two witnesses but he maintained that he was trying to ensure that they told the “truth”, namely that Liam Roberts had not seen the appellant driving and he was trying to ensure they were not pressurised into providing an account that falsely implicated him. Liam and Barry Roberts were cross-examined on the basis that they were lying about what they claimed he had said during the course of the telephone calls. 20. There were attempts prior to the introduction of the plea to agree an admission by the appellant and the respondent as to the actions admitted by Ryan Parry but an acceptable basis was not found. 21. Neither Denham nor Shirt (see above), relied on by the respondent, involved a closed conspiracy consisting of two individuals, as is the position in the instant case. Although they assist on general principles, the court in those cases was not addressing circumstances of any real similarity to the present case. Of far greater relevance is R v Derk Nathan Smith [2007] EWCA Crim 2105 . We need not rehearse the facts of that case, save to say that it involved two defendants jointly charged with a robbery and a firearm offence. One of the two accused pleaded guilty to these two offences and her pleas were admitted during the trial of the other defendant. In the course of giving judgment, Hughes LJ observed: “16. We have been taken to the line of cases which begins with R v O'Connor [1987] 85 Cr App R 298 . They are well known; we need not review all of them. We should, however, refer to the helpful distillation of many of them in R v Kempster [1990] 90 Cr App R 14 in the judgment of Staughton LJ. That line of cases indicates that section 74 should be sparingly applied. The reason is because the evidence that a now absent co-accused has pleaded guilty may carry in the minds of the jury enormous weight, but it is nevertheless evidence which cannot properly be tested in the trial of the remaining defendant. That is particularly so where the issue is such that the absent co-defendant who has pleaded guilty could not, or scarcely could, be guilty of the offence unless the present defendant were also. In both those situations the court needs to consider with considerable care whether the evidence of the conviction would have a disproportionate and unfair effect upon the trial. With those cases can be contrasted the kind of case in which there is little or no issue that the offence was committed, and the real live issue is whether the present defendant was party to it or not. In those circumstances, commonly, the pleas of guilty of other co-defendants can properly be admitted to reinforce the evidence that the offence did occur, leaving the jury independently to consider whether the guilt of the present defendant is additionally proved. 17. We accept, as did the trial judge in this case, that this line of cases was decided before the passing of the Criminal Justice Act 2003 . We agree that that new Act does proceed, as the judge in this case said, upon the basis that in some respects the ambit of evidence with which a jury can be trusted is wider than the law formally allowed. That thinking is, we do not doubt, there to be discerned in the bad character provisions of the Criminal Justice Act 2003 and also in the relaxation of the rule against hearsay. It does not, however, follow that the approach of the line of cases to which we have been referred is simply out of date. It remains extremely relevant what the issue is in the case before the trial court. It remains of considerable importance to examine whether the case is one in which the admission of the plea of guilty of a now absent co-defendant would have an unfair effect upon the instant trial by closing off much, or in some cases all, of the issues which the jury is trying. 18. It remains a proper approach, we are satisfied, that if there is no real question but that the offence was committed by someone and the real issue is whether the present defendant is party to it or not, evidence of pleas of guilty is likely to be perfectly fair, though of course each case depends upon its own facts. However, it also remains true that such evidence may well be unfair if the issues are such that the evidence closes off the issues that the jury has to try. […]” 22. We have no doubt that the introduction of Ryan Parry’s plea would have tended significantly to close down the central issue relevant to this count, namely whether the appellant entered into this conspiracy with Ryan Parry, which was the charge he faced. The latter could not have been guilty of this offence unless the appellant was also guilty, and, considered with a degree of realism, Parry’s involvement entirely depended on the participation – indeed, the direction – of the appellant. There would have been no sense in Parry taking these steps unless the appellant considered them necessary in order to enable him to present a false defence. Furthermore, once the conviction was admitted into evidence, it was not admitted as a mere plea of guilty but instead it included all the detail in the count. Notwithstanding the judge’s directions in which he sought to limit the evidential impact of this evidence, there was a high risk that the jury would have drawn the conclusion that Ryan Parry’s admission that he had conspired with the appellant meant inevitably that the appellant had conspired with him. Given the fact on which the conviction was based was that Ryan Parry and the appellant conspired together—and it takes at least two conspirators to make a conspiracy—then the conviction proved just that: Ryan Parry and the appellant were both guilty of conspiracy. 23. There are criticisms of the judge’s direction to the jury, particularly that he did not direct them, first, in unequivocal terms that the evidence of the plea was not evidence against the appellant, and second, in a consistent manner that it tended to establish that only some of what was said by members of the Roberts family was true. Given our conclusions on the main issue, it is unnecessary to analyse these submissions in any great detail. It is necessary to note, however, that during the summing up the judge sought to indicate the limited relevance of the guilty plea, albeit he did not state in terms that it was not evidence against Mr Horne on any of the counts on the indictment and, at least in the second part of the direction, he indicated the direction tended to demonstrate that “certain aspects” of what was said by members of the Roberts family was accurate. There remains a fundamental logical difficulty, however, with the judge’s approach. If the conviction of Ryan Parry tended to prove the truthfulness of Liam and Barry Roberts, this was directly relevant to the issue of the guilt of the appellant on this charge: if the evidence of Liam and Barry Roberts was accepted, that essentially established the appellant’s involvement in the conspiracy to pervert the course of public justice. On these facts, therefore, the attempt by the judge to limit the evidential impact of the Parry’s plea to a discrete and subsidiary issue in the case would necessarily have been ineffective. 24. There was undoubtedly significant other evidence against the appellant, but he was nonetheless acquitted of the other serious charges of attempted murder, causing grievous bodily harm with intent and attempting to cause grievous bodily harm with intent. We are not sufficiently persuaded that he would necessarily have been convicted of this particular charge if the jury had not heard of Parry’s guilty plea, the force of which we have analysed above. This important evidence should have been excluded under section 78 Police and Criminal Evidence Act 1984 on the grounds that its admission would have such an adverse effect upon the fairness of the proceedings that it ought not to be admitted. In the result, the appeal must be allowed and the conviction should be quashed. We would finally note in this regard that it appears that the learned judge was not taken to the critical line of authority which included Derk Nathan Smith . If this jurisprudence had been drawn to his attention, we very much doubt he would have admitted this evidence. The Sentence Appeal 25. There is a renewed application for leave to appeal against sentence in relation to the term of 9 months’ imprisonment for conveying a list B article and for the telephone offences. The application was also made in respect of the sentence imposed for conspiracy to pervert the course of justice but in the light of our earlier conclusion that has self- evidently fallen away. We grant leave and the necessary extension of time for the delay which was caused for administrative reasons. 26. The appellant submits that the starting point for time served for the telephone offences should have been 24 November 2017 when the applicant was arrested near Southampton and remanded in custody (which was before these nine offences were committed), on the basis that the telephone offences were “related offences” for the purpose of s. 240ZA of the Criminal Justice Act 2003 viz-a-viz the counts on which he was acquitted. 27. Section 240ZA provides materially as follows: “(1) This section applies where – (a) An offender is serving a term of imprisonment in respect of an offence, and (b) The offender has been remanded in custody […] in connection with the offence or a related offence […] (8) In this section “related offence” means an offence, other than the offence for which the sentence is imposed (“offence A”), with which the offender was charged and the charge for which was founded on the same facts or evidence as offence A.” 28. The appellant submits that the telephone offences were ‘related’ to the attempted murder/grievous bodily harm offences. In the absence of any direct authority on the point, the appellant points to the approach of the courts to the question of joinder under s. 4 of the Indictments Act 1915 and the Criminal Procedure Rules which permit joinder where the offences charged are “founded on the same facts”. Reference is made to R v Barrell & Wilson [1979] 69 Cr App R 250 for the proposition that the test is whether the offences have a “common factual origin”. It does not mean that the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. 29. The test for joinder as identified above is well-established and non-contentious. But we see no justification for its cross-application to s. 240ZA which, first, is not in identical terms and, second, addresses the technical area of when and to what extent time spend on remand in custody should count towards a sentence of imprisonment (or detention). In our judgment, in this context, the words of s. 240ZA should be interpreted literally. An offence is related to another if it is founded on the same facts or evidence. Whether an offence is founded on the same facts or evidence is then to be determined on an analysis of the facts of the case. 30. In this case, whilst the telephone offences were properly joined by reason of having a common factual origin, we do not consider that they are founded on the same facts or evidence as the attempted murder/grievous bodily harm offences for the purpose of s. 240ZA. The telephone offences did not commence until March 2018, approximately 4 months after the incident on 7 November 2017 and they were founded on evidence relating to that later period. They involved separate incidents and were not of a similar character. They could have been charged as offences without any reference to the charges of attempted murder/GBH. 31. This conclusion accords with public policy and common sense: it would be wholly counter-intuitive if time should be counted from a date before the relevant offences were even committed. 32. For these reasons, we dismiss the appeal against sentence.

2020_04_02-4870.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/487/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/487

4cc2bbf6a45c44a83996c5085ca8715a899e7b534899a26d64acb9caf3a19bf4

[2011] EWCA Crim 2842

EWCA_Crim_2842

crown_court

No: 2011/2448/D3 Neutral Citation Number: [2011] EWCA Crim 2842 IN THE COURT OF APPEAL CRIMINAL DIVISION( Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 16 November 2011 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE OWEN MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - - - R E G I N A v SCOTT LENNON EVANS - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Flee

No: 2011/2448/D3 Neutral Citation Number: [2011] EWCA Crim 2842 IN THE COURT OF APPEAL CRIMINAL DIVISION( Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 16 November 2011 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE OWEN MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - - - R E G I N A v SCOTT LENNON EVANS - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Mr A Sharma (Solicitor Advocate) appeared on behalf of the Appellant Mr R Whittam QC and Mr R Hallowes appeared on behalf of the Crown Mr L Mably appeared as Amicus - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The issue on this appeal is whether, when at the Crown Court the defendant's advocate went into the courtroom where his case was likely to be heard and told the usher that he (the defendant) was in the building, the defendant had thereby surrendered to his bail. The issue arises because after that had happened the defendant walked out of the building and did not return. When his case was called on he was not there and in due course he was dealt with for the criminal offence of failing to surrender to bail, contrary to section 6(1) of the Bail Act 1976 . Although the sentence passed upon him was a concurrent one, so that it added nothing to what he received, the issue which he raises is one that he is entitled to raise and, as has been apparent from the argument before us, it is a point which may recur in other cases. 2. The facts are agreed here and were agreed in the court below. The defendant was indicted for burglary of a flat and stealing from it two televisions which he was found carrying away some time after midnight. He had been sent for trial at the Crown Court on bail. His case was listed for plea and if necessary case management on 1st March 2011. On that day the defendant duly went to the Crown Court building. There he met the advocate who was to appear for him. She in turn went into the courtroom in which his case was listed and she told the usher that he was in the building. Then, as is likely to happen with a great number of defendants, she and he went to confer somewhere convenient in the building. She last saw him at about 11.30 by which time he had decided on his plea which was to be guilty. 3. Unfortunately between then and 12.45 when his case was mentioned in court, he simply walked out of the building and was not seen again that day. Later in the afternoon, after enquiries as to whether there was perhaps a reasonable explanation for his departure, the judge, satisfied that there was not, issued a bench warrant for his arrest and detention. 4. The defendant was arrested promptly the following day, having surrendered himself to the police. He was returned in custody to the Crown Court. There he pleaded guilty to the burglary. The additional offence of failing to surrender was also put to him and he pleaded guilty to that as well. However, Mr Sharma, who was then appearing for him as he is now, raised a prompt query whether the latter plea to the Bail Act offence was erroneous on the grounds that the defendant had in fact surrendered the previous day when the usher had been told that he was in the building. 5. At that stage the judge declined to vacate the plea and proceeded to sentence. He passed a sentence of 12 months for the burglary and a concurrent sentence of 14 days for the failure to surrender. There is and could be no complaint about the sentence for burglary, particularly in view of the defendant's antecedents. However, his advocate thought further about the charge of failing to surrender and gave notice to the court of an application to vacate the plea. That came before the same judge 28 days later on 30th March. The judge rightly observed that the plea of guilty was not necessarily an insuperable bar to an appeal to this court, but in the purported exercise of his discretion he allowed the defendant to vacate his plea. He then heard argument, but ruled that on the agreed facts the defendant had not in fact surrendered on 1st March and thus that he was indeed guilty of the offence contrary to section 6 . From that decision the defendant now appeals. 6. The first thing to say is this. We appreciate that the judge was trying for the best of all possible motives to get through the form to the substance. We are however unable to avoid saying that he had no jurisdiction to allow the defendant to change his plea after he had passed sentence a month earlier. The dealings with the defendant were completed and the judge was functus officio . That is confirmed by the decision this court in R v McNally [1954] 1 WLR 933 . That case was listed precisely to provide the court with the opportunity to explain the rules about vacation of plea. The Lord Chief Justice, Lord Goddard, ruled that (i) up until sentence vacation of plea is a matter entirely within the discretion of the judge, but (ii) after sentence there is no power to permit it. That had been held to be the position in previous cases there reviewed going back over a century. The court specifically held that one recent instance of a trial judge permitting a change of plea after sentence was wrong and ought not to be followed. The judge in the present case was not referred by either advocate to McNally and it is unsurprising that he unwittingly failed to follow it. 7. Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (frequently known as the slip rule) does not alter this position. Although it refers to altering a "sentence or other order" it is perfectly plain that it deals with orders which are made by way of disposal, that is to say by sentence or orders ancillary to sentence and does not reverse McNally to give the court jurisdiction to vacate a plea after sentence. Whilst side headings do not control the content of a statutory section, the side heading of this one confirms that ordinary reading of it because it reads "alteration of Crown Court sentence". 8. Nevertheless, that error does not affect the power of this court to hear an appeal against the conviction which was recorded not on 28th March but on 2nd March when the defendant had pleaded guilty to the Bail Act offence initially. Generally of course a plea of guilty is an acknowledgement of guilt which will prevent any possibility of appeal. However, one exception is where the plea is entered on agreed facts where, it is contended, the judge has wrongly ruled that they amount to the offence. Accordingly, with that rather lengthy introduction, we turn to the merits of the appeal. 9. The Bail Act distinguishes between two situations. The first is where a defendant is on bail but fails without reasonable excuse to "surrender to custody". "Surrender to custody" means by section 2(2) in this context "surrendering himself into the custody of the court ... at the time and place for the time being appointed for him to do so." The failure to do that is by section 6(1) an offence. The offence may be dealt with according to section 6(5) either by summary conviction before the magistrates or as if it were a criminal contempt of court. Note that it is not in law a contempt of court, it is simply punishable as if it were - see Reader (1987) 84 Cr.App.R 294. In consequence, the maximum is not the two years which is applicable to contempt of court by virtue of section 14 of the Contempt of Court Act 1981 , but rather it is the 12 months specifically provided for this offence by the Bail Act. 10. The former process before the magistrates was considered by the Divisional Court in Schiavo v Anderton (1986) 83 Cr.App.R 228 , but it does not arise in this case and we say nothing about it. Here it was the latter procedure which the judge adopted. 11. The second situation contemplated by the Bail Act is where a defendant has surrendered to bail but absents himself from the court before the hearing either begins or resumes as the case may be. That is not a Bail Act offence but the court may issue a warrant for the defendant's arrest - see section 7(2) of the Bail Act which provides as follows: "If a person who has been released on bail in criminal proceedings absents himself from the court at any time after he has surrendered into the custody of the court and before the court is ready to begin or to resume the hearing of the proceedings, the court may issue a warrant for his arrest ..." Whilst this second situation therefore does not constitute the Bail Act offence of failure to surrender, because by definition surrender has happened, it is of course the common law offence of escape which is indictable and for which the sentence is at large - see R v Rumble [2003] EWCA Crim. 770 . The purpose of section 7(2), additionally to the law of escape, is plainly to enable the absconder to be apprehended as soon as possible so that the proceedings can begin or continue as the case may be. 12. In the present case Mr Sharma's argument is that the defendant here had surrendered by making himself known through his advocate to the responsible officer of the court, that is to say the usher, and thereby submitting to any directions which the usher might give, for example, as to where he should go until his case was called on or on any other topic. We have additionally been very much assisted by careful submissions by Mr Mably, helpfully acting as advocate to the court. He also invited us to consider that submission as a practical solution to the need for such certainty as can be achieved on the topic of what constitutes surrender. Says he, the usher will be somebody specifically tasked to find out whether those concerned in each of the cases listed in that court are present. He or she will have a list and be able to mark off attendance as it is noted. To report to the usher is, says Mr Mably, a convenient and practical way of putting yourself at the disposal of the court which is, he says, the essence of surrender. From the time that that is done, say both Mr Sharma and Mr Mably, the defendant is not free to leave as he wishes; that is because he has surrendered. 13. For the Crown Mr Whittam QC supports the need for such certainty as can be achieved in this area. He submits however that just as it is common ground that attendance at the Crown Court building is not an act of surrender, so neither is a report to the usher, whether it is made personally by the defendant or by his advocate on his behalf. Mr Whittam's submission is that surrender is accomplished by overtly subjecting oneself to the directions of the court and that in the Crown Court at any rate that is conventionally and normally accomplished by entering the dock when the case is called on and placing oneself in the hands of the custody officers. However, he adds that surrender may also be accomplished in a particular case in the Crown Court by the commencement of a formal hearing before the judge at which the defendant is identified as present and whether he is placed in the dock or not. 14. Mr Sharma's argument that the defendant had surrendered in the present case, and that report to the usher amounts to surrender, derives substantially from the decision of the Divisional Court of Queen's Bench in DPP V Richards (1989) 88 Cr.App.R 97 . In that case the defendant was on bail to appear at the Magistrates' Court. On the appointed day he arrived at the building in good time. There was a notice in the concourse which said: "All persons due to appear in court please report to the enquiry counter." He did that and he obeyed directions which were there given to him to wait in the concourse. His case was not reached and he became tired of waiting and absented himself. He was subsequently charged with the offence contrary to section 6(1) of the Bail Act of failing to surrender. The magistrates before whom he was tried held that he had in fact surrendered because he had complied with the direction given to those attending as to what they were to do. The Crown appealed by way of case stated to the divisional court but the appeal failed. Glidewell LJ giving the reasoned judgment in the case, said inter alia this: "... what precisely constitutes the person or body to whom a person on bail is to surrender depends upon the procedure followed at the particular court and the directions given in accordance with that procedure to the person who is coming to surrender ... If having done so the person at the Inquiry office said: 'Go to the cells and surrender to a prison officer' that would have been the surrender. If the Inquiry Officer says: 'Go and sit in the concourse until your case is called,' then the court procedure envisages that being the surrender to the court." A little later at page 104 he said this: "I take the view that if a court provides a procedure which directs - there has to be some form of direction, by notice or by oral direction - a person surrendering to bail to report to a particular office or to a particular official, when he complies with that direction he surrenders to his bail." 15. That, as is apparent, was a decision primarily on the particular arrangements in the Magistrates' Court in question. We respectfully agree that what constitutes surrender has necessarily to vary to some extent according to the arrangements which are made for accepting surrender at any particular court. We are very conscious that the physical arrangements at a Crown Court are very likely to be different from those at a magistrates' court. A magistrates' court may have a dock, but it may have none, and it may have custody officers but also it may in a particular courtroom at a particular time have none of those either. 16. Mr Sharma reminds us that Glidewell LJ in Richards relied in part for his conclusion on what he concluded was the absence of any purpose for section 7(2) of the Bail Act unless surrender might take place without entry to the cells. We agree that section 7(2) plainly contemplates the possibility that a defendant may have surrendered but yet not be in the cells or the dock, since if that is where he were the occasion to absent himself before the hearing begins or resumes would, at least ordinarily, rarely arise. It is not, however, impossible to envisage situations where it might arise even after surrender to the cells or the dock. 17. An extreme example is afforded by the facts of Rumble where a defendant was in the process of being sentenced in a Magistrates' Court which had no physical dock and not finding the decision of the Bench to his liking delivered himself of some insulting remarks and left through the public exit. Similarly it can happen in the Crown Court that a defendant who has been in the dock in the custody of the cells officers is allowed for some reason to leave it without a fresh grant of bail. That could happen at a temporary interruption in the hearing or it could happen if counsel were given the opportunity to take instructions from a defendant without the necessity of going downstairs to the cells. 18. Another example of circumstances in which section 7(2) plainly has content is afforded by the decision of the House of Lords in R v Central Criminal Court ex parte Guney [1996] AC 616 . That concerned the liability of a surety. The defendant was indicted for complex fraud and his case was transferred to the Crown Court under the then comparatively new provisions of the Criminal Justice Act 1987 . The judge directed a preparatory hearing. It was held at a new court building which had neither cells nor dock. The defendant was present. The surety was not. Thinking that they were thereby preserving the recognisance, counsel agreed between themselves that there was no need for the defendant to surrender into the custody of the court. The judge was not aware of that discussion. The defendant then fell to be arraigned having been asked by the judge to stand up in the place in court where he was sitting. There ensued a number of preparatory hearings but after several of them the defendant absconded by leaving the country and remained away for many years. The Crown sought to estreat the recognisance and the liability of the surety depended upon whether counsel's agreement meant that the defendant had not surrendered. 19. After different opinions had been expressed in the Divisional Court and the Court of Appeal, the House of Lords ruled that whenever else it might occur surrender is accomplished as a matter of law when the defendant is arraigned. It added that any practice of a judge directing that despite arraignment the defendant should be deemed not to have surrendered was a direction devoid of legal consequence. It might also have pointed out that by statute a preparatory hearing is the beginning of the trial ( section 8 of the 1987 Act ). 20. The moral of that decision is that once arraignment has taken place, however informal its particular circumstances may be, the court must review the question of bail and if a surety is involved direct a fresh taking of a reconnaissance. We will return to that topic at the end of this judgment. But so far as the authority of Guney is concerned, to say, as it does, that whenever else it may happen surrender is deemed to have taken place on arraignment, leaves open the question of when before that moment it may otherwise have occurred. 21. Other examples of a case proceeding in the Crown Court without the defendant being in the usual place in the dock flanked by custody officers come fairly readily to mind. First, a defendant, if youthful, will ordinarily be allowed to sit elsewhere than in the dock. The Criminal Consolidated Practice Direction expressly provides that that should ordinarily be the case. Such a youthful defendant might of course have been in custody and be allowed to leave the dock and sit alongside his representatives or at some other convenient place. In other cases he may not have been in custody at all. In either case the entire trial may proceed with him sitting other than in the dock. 22. Secondly, similar arrangements are infrequently but not all that rarely made for defendants who are, for example, very infirm or very elderly or who need physically to be separated from someone by whom they would otherwise have to sit in the dock. 23. Thirdly, there may also be occasions when a management hearing, often relatively short, may take place before the judge who may explicitly say to the defendant that he need not on this occasion enter the dock. The range of topics covered may vary from the briefest of applications for a half hour adjournment or notice of postponed hearing later in the day, up to detailed preparations for a complex trial. In all those situations, it is plain that section 7(2) may have useful content because a defendant might avail himself of the opportunity to abscond without having been in the dock. 24. The Recorder of Birmingham, where the events which concern us in this case took place, has provided a helpful note of the practice which obtains in the particular Crown Court with which we are concerned. It is appropriate to look at that for the same reasons as it was necessary in DPP v Richards to look at the practice in the particular Magistrates' Court with which that court was concerned. There is at this Crown Court no notice directing defendants who come into the building to go anywhere in particular, although in one of the two buildings occupied by this Crown Court there is what is termed a "customer service desk". If a defendant goes to that desk he will simply be told to keep an eye on the monitor which indicates which case is to be heard in which courtroom and when it is likely to be called on. He will be given no directions as to what he is to do by way of surrender. Each courtroom ordinarily has an usher whose job it is to assist the judge and the court clerk in managing the business. An important part of his work is to smooth the flow of cases by identifying when each is ready so that the court can take it if it wishes. In order to do that the usher will be told, normally by advocates or solicitors but occasionally by the defendant himself, that the defendant is present. That is not, according to the Recorder of Birmingham, generally regarded as accepting a surrender into custody. In that court in the absence of unusual circumstances and specific direction, such as in the case of young defendants, every defendant whose case is called on is there and then required to enter the dock in the court where he becomes formally the responsibility of the dock officers. Some court clerks when calling the case on do so using the time honoured expression "Let X surrender to his bail." The Recorder's note contains this conclusion: "The ordinary defendant is not considered to have surrendered to bail until he has entered the dock and identified himself to the dock officer. The young defendant ... is not considered to have surrendered until he has been identified. In each case this point is the first occasion on which there is any formal notice given to the court that the defendant is at court. Any earlier acknowledgment of the defendant's presence by the usher or any other member of the court staff will be arbitrary." 25. For the purpose of the present appeal enquiries have also been made by Her Majesty's Courts and Tribunals Service. Some 28 Crown Courts responded to an invitation to explain their surrender procedures. Of those, 27 answered that the defendant is treated as having surrendered once he enters the dock. Several reported procedures similar to Birmingham whereby ushers are responsible for finding out who is present and ready. We agree that as explained in Richards individual courts may have particular arrangements and accordingly no absolute rule can be deduced. However, the procedure concisely explained by the Recorder of Birmingham and by the 27 Crown Courts who responded to the request for information accords exactly with our several experiences in Crown Courts up and down the country over a certain period. We would be surprised if most do not have ushers responsible for finding out who is present and ready. Generally, however, the almost universal practice is to require those who surrender to enter the dock and place themselves in the custody of the custody officers. 26. It seems to us that that general practice also accords with principle. Surrender means surrender to custody - section 2(2) of the Bail Act. Whatever may be the position in courts such as the Magistrates' Courts where there is no physical movement into an identifiable place of custody and perhaps no custody officers in the courtroom, in the great majority of Crown Courts the dock is such a place and it is staffed for the purpose by uniformed custody officers. Next, once a defendant has surrendered he must by definition be under the control of the court and he must be the responsibility of the court. The plain threshold for such control and responsibility in the ordinary case is placing oneself in the dock. If simply reporting one's presence to the usher were to constitutes surrender, the defendant could not then go off into conference with his lawyer without express permission and indeed arguably without a fresh grant of bail for the purpose. He certainly could not leave the building for lunch even if he was told that his case would not be reached until after 3 o'clock, unless there were a fresh grant of bail. The business of the court would be, as it seems to us, unnecessarily and impracticably delayed by fresh considerations of bail in every case not to be taken before the midday adjournment. Moreover, the fact that the custody officers plainly have some responsibility for any defendant in their custody would be at least likely to have the consequence that if reporting to the usher constituted surrender those officers would then feel it necessary to insist that every such defendant thereupon went into cells, lest for example there should be an outbreak of disorder or violence, or a contretemps with a witness whom the defendant might encounter elsewhere and the custody officers might face a claim in tort. 27. Accordingly, as it seems to us, the general practice of accepting surrender by way of entry into the dock accords not only with common experience and general practice, but also with principle. However, by analogy with Guney we agree that in the Crown Court surrender may also be accomplished by the commencement of any hearing before the judge where the defendant is formally identified and whether he enters the dock or not. In any of the examples which we have given of youthful, elderly or vulnerable defendants or of the case management hearing in which the defendant is not required to enter the dock, it seems to us that surrender would have occurred. The hearing would have begun. The defendant would be present and formally identified and plainly would overtly have subjected himself to the control of the court. The same is not necessarily so if there is but a brief mention of the case in the absence of the defendant. That may occur at the initiative of the advocate or it may sometimes occur at the initiative of the judge. The enquiry might be about whether the case is ready or is likely to be reached or about whether a particular document can or should be supplied. That kind of mention does not, as it seems to us, involve surrender by the defendant unlike the case where the defendant is formally identified in court and a hearing, however brief, commences. 28. Accordingly, we do not agree that reporting to the usher amounts to surrender. We make it clear that we do not rest that decision upon the fact that the Act speaks of surrender to the court and the court is, for the purposes of the Bail Act, defined in section 2(2). The definition reads: "... 'court' includes a judge of the court, or a justice of the peace ... having powers to act in connection with the proceedings before that court..." It is true that there is no mention of the usher in that definition, but then there is no mention of the dock officers either. Surrender to the dock officers is plainly not only a possible but the normal manner of surrender and indeed is likely generally to happen before the judge is present in the courtroom. Likewise, DPP v Richards shows that in a particular court if the arrangements call for it, as it may do in some magistrates courts, a court officer other than the judge may be designated to accept surrender. 29. The reason for our decision does not thus depend upon the definition of the word "court". The reason for it is that in the absence of either stepping into the dock in a Crown Court or in such a court being formally identified for the purposes of hearing, the defendant has not put himself into anything which can properly be called "custody". Nor, we should add, has he overtly subjected himself to the directions of the court. He may of course accept advice as to where it is convenient to wait and what he ought to do, but it does not follow from that that he is in custody. 30. That point is conveniently illustrated by a subsidiary submission made to us on behalf of the appellant by Mr Sharma. In this particular area the notice issued by the magistrates to a defendant who is committed or sent to the Crown Court on bail informs him that he is committed or sent "to Birmingham Crown Court on" (and then the date) "at 9.30 am ... on bail." If there are conditions to the bail those are then identified. Mr Sharma invites us to say that that means that a defendant recipient of such a notice is required to surrender precisely at 9.30 in the morning and that any failure to do so constitutes the offence contrary to section 6(1) of the Act. Mr Whittam QC offered the alternative view that the reference to 9.30 in the morning in the notice given to the defendant is rather than an obligation to surrender at that moment, a duty to arrive at court at that time imposed by way of a condition of bail. 31. It seems to us that the status of this particular part of this notice is in fact rather simpler than that. This is a notice to the defendant that he must be at the Crown Court in order to surrender when called upon and it is a notice that that may happen at any time from 9.30 in the morning onwards. It is neither a condition nor is it a requirement that surrender must actually take place at 9.30. If it were the latter of those things then every defendant appearing at a busy Crown Court would have physically to place himself in the custody of the court precisely at the same moment. That is neither necessary nor is it practicable. 32. We do agree that once a defendant arrives at the Crown Court building he is in one sense not entirely at liberty to come and go as he wishes. That, however, does not seem to us to mean that he has thereby surrendered. Indeed it is common ground that mere arrival at the Crown Court building does not constitute surrender and could not do so. The correct analysis seems to us to be not that he has surrendered but that he knows that he may be required at any moment to do so and in consequence he would be very unwise to wander away. 33. We return briefly to the general position in relation to grants of bail and sureties. Guney points up a particular issue concerning sureties but the point is of more general application. It is important to remember that if a Magistrates' Court commits on bail with or without a condition that a surety provide a recognisance, that bail and recognisance lapse on the first appearance in the Crown Court. It cannot in law carry through subsequent adjournments in that Crown Court. On the other hand, the Crown Court, if it renews bail, does have the power to make the recognisance continuous for all future appearances. All that underlines the importance of attention being paid to the terms of a defendant's bail, particularly at the conclusion of the first hearing in the Crown Court. At that point conditions of bail should always be considered. Of course it is sufficient to do so briefly by simply reimposing conditions previously placed there by the magistrates, if that is appropriate and especially if there is no objection. But in both surety cases and non-surety cases an assessment of bail is required at the end of the first hearing in each Crown Court. 34. For all those reasons, we are quite satisfied that the arrangements in place at Birmingham on the day when this defendant went to the building but subsequently absconded meant that he did not surrender unless and until he put himself physically in the hands of the custody officers by entering the dock or a hearing before the judge was begun at which he was formally identified as present. Those are the requirements for surrender. That means that this appeal must be dismissed. The defendant was correctly convicted of the Bail Act offence. 35. We observe, of course, that even if the rule were that surrender could be accomplished by a defendant presenting himself to a court official such as the usher, it would still have to be accomplished personally. It could not be done by an advocate simply reporting to the usher that he had been seen, as happened in this case. For all anyone might know he might already by that time have decided to leave. 36. We do not however rest our decision on that narrow ground. Rather, we conclude, as we have previously said, that in the absence of special arrangements either particular to the court or particular to the individual case, surrender to the Crown Court is accomplished when the defendant presents himself to the custody officers by entering the dock or where a hearing before the judge commences at which he is formally identified as present. Secondly, if there has been no previous surrender, as ordinarily there will have been, it is also accomplished by arraignment. Thirdly, the position in the Magistrates' Court may be the same, but may easily differ as explained in DPP v Richards . 37. We have helpfully been provided with a copy of the Crown Court Manual which displays a certain degree of ambivalence about the position as to surrender. We hope that what we have said will enable at least some of those doubts to be resolved and the form of the document to be modified. Similarly, there is a reference to Richards in the current edition of Archbold at paragraph 3-30. That too leaves open the possibility that the court was in that case holding that in every case in every kind of court report to some person on the court staff might suffice for surrender. Unsurprisingly the commentary suggests that if so there may be some consequential directions needed. We hope that what we have said here will enable a different and more certain note to be included in subsequent editions.

2011_11_16-2864.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2842/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2842

f4cfdb43cb3ac4bf538c1c3fba491ced766110b332e8c3ad5de7762510dc8d66

[2009] EWCA Crim 2459

EWCA_Crim_2459

crown_court

Neutral Citation Number: [2009] EWCA Crim 2459 Case No: 2009015125 A4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Liverpool His Honour Judge Globe QC T2009 0934 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/11/2009 Before: LORD JUSTICE SCOTT BAKER MR JUSTICE OWEN and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - Between: Karl Campbell Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 2459 Case No: 2009015125 A4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Liverpool His Honour Judge Globe QC T2009 0934 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/11/2009 Before: LORD JUSTICE SCOTT BAKER MR JUSTICE OWEN and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - Between: Karl Campbell Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Davies (instructed by Bell, Lamb and Joynson ) for the Appellant Hearing dates : 20 November 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Cranston Introduction 1. This application for leave to appeal concerns the sentence applicable to an offence of causing death by careless driving under section 2 B of the Road Traffic Act 1988 (“ the 1988 Act ”). That offence is relatively new. It was introduced by the Road Safety Act 2006 and came into force in August 2008, subject to certain savings. The heading of section 2 B is “Causing death by careless, or inconsiderate, driving”. The section itself provides that the offence occurs if a person causes the death of another person by driving a vehicle without due care and attention, or without reasonable consideration for other persons. 2. Along with the enactment of section 2 B, Parliament adopted a statutory definition of careless or inconsiderate driving. Section 3 ZA of the 1988 Act provides that a person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a careful and competent driver: s 3 ZA(2). In determining what would be expected of a careful and competent driver in a particular case, regard must be had not only to the circumstances of which the careful and competent driver could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused: s 3 ZA(3). A person is to be regarded as driving without reasonable consideration only if those persons are inconvenienced by his driving: s 3 ZA(4). 3. The offence is an either way offence. Under the statute it is punishable on conviction on indictment with up to five years’ imprisonment, or a fine, or both, and on summary conviction by twelve months’ imprisonment or the statutory maximum fine, or both: Road Traffic Offenders Act 1988 , schedule 2, Part 1. The offence carries an obligatory disqualification and obligatory endorsement. Penalty points may be imposed where there are special reasons found for not disqualifying from driving. Background 4. On 19th August 2009, at the Crown Court at Liverpool the applicant, aged 19, pleaded guilty on re-arraignment to an offence under section 2 B of the 1998 Act. As a result, at the direction of HH Judge Globe QC, he was found guilty of causing death by careless driving. On 26th August 2009 the learned judge sentenced him to 24 weeks imprisonment, suspended for 2 years, with 2 years supervision and a 100 hour unpaid work requirement. He was disqualified from driving for 3 years and his licence was endorsed with 8 penalty points. The application for leave to appeal against sentence has been referred to us by the Registrar. 5. The tragedy occurred in Kirby, Merseyside, in October 2008. South Boundary Road is a long straight dual carriageway with two lanes in each carriageway and a large central reservation. The applicant was driving his Volkswagen Polo from a car park side road and needed to cross the carriageway in order to turn right. The evidence of the applicant’s female passenger, Cassandra McArdle, was that he was driving slowly and cautiously. The road surface was damp and it was dark, but the carriageway was well lit and there was a clear field of vision to his right of approximately 300 yards. 6. At about 22.16 the deceased, 20 year old Jonathon Wilkinson, was riding his Kawasaki motorcycle along the South Boundary Road, approaching from the applicant’s right hand side. He was in the right hand lane, nearest to the central reservation. His estimated speed exceeded the speed limit, which is 40mph. The prosecution’s expert, Mr Boulton, made a number of calculations and suggested that the motorcycle was being ridden at a speed of around 48mph, when the rider reacted and applied the brakes. The defence expert, Mr Greatrix, was of the opinion that the speed of the motorcycle at the start of the tyre skid was more realistically 57 mph and that the approach speed would have been greater because speed would have been lost before the tyre mark became visible. The independent witness, Mr Wilson, who was on his way home from work, estimated the speed at 80 mph and remembered the revving noise of the motorcycle engine. His evidence was that the motorcycle’s engine was screaming and it was as if the rider had opened the throttle like he was on a race track. 7. As the applicant pulled out of the side road, intending to pause at the central reservation, he was struck by Mr Wilkinson’s motorcycle, just by the rear passenger door. Mr Wilkinson died as a result of the injuries he sustained. At the scene the applicant told an off duty police officer: “I came out of the junction and the motorcycle came from nowhere and the motorcycle went into me”. 8. When interviewed the applicant said that he had collected his friend, Kevin Stewart, from work. He drove to the junction with South Boundary Road. He stopped, looked right, looked left and looked right again before pulling out. On neither occasion when he looked to the right did he see the motorcycle. He confirmed that he had not been distracted by anything in the car. He had not been fiddling with the radio, talking to his passengers or using a phone. At all times his attention was on his driving and the manoeuvre he was making. He was not tired. The trial begins and the defendant pleads guilty 9. The trial began on 18 August 2009. On the final day evidence was given by two witnesses for the prosecution, Ms McArdle and Mr Wilson. Ms McArdle was a student who at the time was learning to drive, but not a qualified driver. One of her workmates, Mr Stewart, the friend Mr Campbell was to collect, had offered her a lift home. She described the car as stopping at the junction of South Boundary Road. She saw what she thought were car headlights in the distance before a road which leads to a car show room. Since that is a long distance away she thought it was safe for the vehicle she was in to cross the carriageway. 10. Apart from his evidence on speed, Mr Wilson said that he looked in the direction the motorcycle was travelling and saw a car stationary at the junction waiting to emerge and cross South Boundary Road. He saw the car emerge and cross the two lanes and then he saw the collision. Mr Wilson does not drive and his assessment of the accident does not match in some important respects the undisputed account of other parties. 11. That evening, the 18 th August, the applicant went with the defence expert and his counsel, Mr Davies, to the site of the accident. The background was that at the time of the plea and case management hearing, when the applicant pleaded not guilty, there was the evidence of Ms McArdle, Mr Wilson and the applicant himself. There was also the evidence of a police collision investigator, who had been unable to assess the motorcycle’s speed but had concluded that the motorcycle would have been within the view available from the junction and since it was displaying twin headlights it was there to be seen. However, it was also his opinion that it will have been some distance away and that its speed has been a contributory factor in the collision. 12. Then shortly before the original trial date the CPS instructed their expert, Mr Boulton. His report placed the motorcycle well within the applicant’s field of vision when he pulled out. The defence were unable to commission their own report in time for the trial and an application to vacate was successfully made. The defence encountered difficulty in finding an expert, although eventually they located Mr Greatrix. Despite efforts by the judge to accommodate the defence, suffice is to say that the defence expert’s report was not available until the eve of the trial. 13. When Mr Greatrix’s report did become available it contained these passages: “75. Since the visibility distance from the junction is just over 300 metres, it follows that the motorcycle was in [the applicant’s] field of view when he decided to pull out on to the main road. However, judging the approach speed of a motorcycle with a single headlamp would be difficult. In the expectation that the motorcycle is not travelling at an excessive speed a driver may well conclude that it is safe to move out. 76. If the motorcyclist had been driving in the nearside lane or had moved into the nearside lane, this collision would not have occurred. I have not seen any explanation as to why the motorcyclist was driving in the offside lane if the carriageway was clear of other traffic. … 91. Based on an assumed impact speed of 30 mph Mr Boulton estimates that the speed of the motorcycle at the start of the tyre mark was around 48 mph. 92. Based on a consideration of momentum exchange in the collision, I believe that a speed of 57 mph at the start of the tyre mark is far more realistic. 93. The approach speed of the motorcycle would have been greater than 57 mph because speed would be lost before the tyre mark became discernable. It is not possible to quantify this additional loss of speed.” 14. However, Mr Greatrix had not visited the scene, because of time constraints. Nor was he able to attend court on the first day of trial. The judge agreed that no expert evidence would be called until he was present. That evening, as we have said, he accompanied the appellant and his counsel, Mr Davies, to the scene. 15. What happened next is evident from the basis of plea, tendered the following day, the 19 th August. “[The applicant] stopped at the junction. He looked right, left and right again. He did not see the motorcyclist. Believing the road to be clear he pulled out. He still has a mental picture of an empty road. Last night he attended the scene of the accident with his counsel and Mr Greatrix. This was his first opportunity to have a conference with Mr Greatrix. Mr Greatrix satisfied [the applicant] that the motorcycle must have been in his field of vision both times he looked right. There were no distractions to the field of vision. [The applicant] therefore accepts that he couldn’t have looked properly. He therefore changes his plea to guilty.” The judge’s sentence 16. In sentencing the applicant, the judge had a pre-sentence report, dated 19 th August 2009, which indicated that the applicant accepted responsibility for the offence and was devastated that an unintentional momentary lapse in concentration could have such fatal and far reaching consequences. He was still coming to terms with what he had done and suffered flashbacks. There was a low risk of re-offending and a low risk of future harm. The applicant had no previous convictions or cautions. 17. In his sentencing remarks the judge said that the applicant had pleaded guilty after the first two witnesses had given evidence at trial. The applicant and Mr Wilkinson were not friends, but the applicant knew him from primary school. Account was taken of the victim impact statements, which conveyed the impression of a talented, highly motivated, engaging and successful young man with a bright future ahead of him. 18. The judge explained that there was an important distinction, that this was causing death by careless driving and not by dangerous driving. The offence of causing death by careless driving when there was no excess alcohol was a relatively new offence. Account was taken of the evidence and the basis of plea. The judge then said that the expert view in the documents he had read was that there was a field of vision of about 300 metres to the applicant’s right-hand side and that from an accident reconstruction the motorcycle was being ridden in excess of the speed limit. The expert’s view was that Mr Wilson’s estimate of 80 mph was wrong. It may have been travelling at no more than 50 mph. However, the speed limit was 40 mph and anyone travelling in excess of the speed limit would approach a vehicle crossing the road more quickly than expected. It was not always easy to judge how quickly a vehicle is travelling towards one. These were important considerations when deciding upon the sentence. 19. After referring to the pre-sentence report, the favourable references which had been produced on the applicant’s behalf and the mitigation advanced on his behalf by his counsel, Mr Davies, the judge said this: “I do not find this case easy to assess in the categories that are set out in the sentencing guidelines. Mr Davies urges me to come to the conclusion that it is in the lowest category. … I agree that there are no aggravating factors such as any of those which are listed in the guidelines … but the facts of this case don’t sit comfortably with the expression of this being careless driving arising from momentary inattention. It may only have been moments as you were at that junction needing to look right but you were moving off from a give way junction into a major carriageway and had an obligation to check that there was going to be no obstruction in your path as you did so. The one and most important feature of your driving as you moved your car was to check that there was nobody going to be in your path and you failed to make that observation. I find it difficult to reconcile those facts and the serious consequences that could result from a failure to observe somebody coming along the road with the expression of it being momentary inattention. By way of alternative Mr Davies invites me to assess the case at the lower end of the next category upwards, category 2, which is reserved for other cases of careless or inconsiderate driving. I agree with that part of his submission.” 20. The judge turned to mitigation. He said that he took into account the applicant’s age, previous good character and obvious remorse. However, it was not accepted that maximum or significant credit should be given for his plea. The credit given should be the minimum, if not slightly lower than the ten percent which he would have received had he pleaded guilty at the beginning of the trial. The judge explained as follows: “[T]here was evidence on the papers that made it clear that somebody in your car had seen the motorcyclist travelling towards you and you could have gone back to the scene of the accident, thought about that and entered your plea at an earlier stage without needing the advantage of Mr Greatrix and to enter the plea part way through the trial. There is an argument on those facts in my view that you should be given no credit whatsoever for entering a guilty plea even at the stage that you did. However, I don’t go that far but the amount of credit that you should be given in my view amounts to the minimum, if not a slightly lower minimum, than what you would have received if you had pleaded guilty right at the beginning of the trial, which is normally assessed in the region of ten percent.” The judge then imposed the sentence as described. Sentencing guidelines 21. In his sentencing remarks, the judge referred to the sentencing guidelines and to what he described as the lowest category and category 2. This is a reference to the Definitive Guideline issued by the Sentencing Guidelines Council in 2008, Causing Death by Driving . As with any guideline issued by the council our duty is to have regard to it: Criminal Justice Act 2003 , s. 172 . Ultimately it is the relevant legislation which is determinative. 22. The definitive guideline has an annex with examples of the types of driving behaviour likely to result in an offence of causing death by careless driving being charged: overtaking on the inside or driving inappropriately close to another vehicle; inadvertent mistakes such as driving through a red light or emerging from a side road into the path of another vehicle; and short distractions such as using a car radio. 23. For the offence of causing death by careless driving, the definitive guideline has three categories. The highest category is “careless driving, falling not far short of dangerous driving”. A starting point of 15 months custody and a sentence range of 36 weeks – 3 years custody is specified. The intermediate, or second category, is described as “other cases of careless driving”. The starting point is 36 weeks custody and the range is a high community order to 2 years custody. The lowest category is “careless driving arising from momentary inattention with no aggravating factors”. The starting point given is a medium community order and the range from a low to a high community order. As in all definitive guidelines these are sentences which would follow conviction after a trial of a first time offender. 24. Five additional aggravating factors are listed in the definitive guidelines. Since there were no aggravating factors in this case there is no need to list them. Among the five mitigating factors identified is whether the offender’s lack of driving experience contributed significantly to the likelihood of a collision occurring and/or of death resulting. In terms of personal mitigation particular attention is drawn to good driving. 25. In setting out the factors to be taken into consideration the definitive guideline explains that it is unavoidable that some cases will be on the borderline between dangerous and careless driving, or may involve a number of factors that significantly increase the seriousness of an offence. Thus the range for the highest category overlaps with ranges for the lowest level of seriousness for causing death by dangerous driving. The three levels of seriousness are defined by the degree of carelessness involved in the standard of driving. The most serious level for the offence is where the offender’s driving falls not that far short of dangerous. The least serious group of offences relates to those cases where the level of culpability is low: “for example in a case involving an offender who misjudges the speed of another vehicle, or turns without seeing an oncoming vehicle because of restricted visibility.” Other cases, it is said, will fall into the intermediate level. 26. The definitive guideline also adds that where the level of carelessness is low and there are no aggravating factors, even the fact that death was caused is not sufficient to justify a prison sentence. That is the Parliamentary intention although we also note that Parliament also contemplated that even on indictment the offence could be visited with a fine. The applicant’s submissions 27. In his cogent written and oral submissions Mr Davies contended that the custodial sentence the judge imposed was manifestly excessive. The judge classified the driving in category 2, as defined by the sentencing guidelines, when it should properly have been classified as category 3. Moreover, he did not allow sufficient credit for the plea of guilty. In the result the judge should have considered a community order. The disqualification from driving should also have been for a shorter period. 28. As to categorisation, the submission was that there were no aggravating features to this defendant’s driving. He was not doing anything to distract himself, he was not tired, he had not been drinking, he was not uninsured, and there was no problem with his vehicle. Not only on his account, but on the accounts of Ms McArdle and Mr Wilson, relied upon by the prosecution, the applicant had stopped at the junction. His only reason for stopping was to look to see if the road was clear before pulling out. That he made a mistake and failed to see the motorcycle was not as a result of a failure on his part to observe proper driving procedures. As the basis of plea made clear he stopped, looked right, looked left and looked right again. He did look twice to his right before emerging – a proper procedure to double check that the road was clear and it was safe to proceed. The speed of the motorcycle, its position in the outside lane, the absence of a high visibility jacket together with the damp road conditions and artificial lighting on the road may have combined to defeat his observation. In Mr Davies’ submission these factors placed this offence in category 3 as defined by the sentencing guidelines. If this was category 2 driving it was very much at the lower end. 29. Mr Davies’ second submission was that far greater credit should have been given to the guilty plea, despite the applicant pleading guilty on the second day of the trial. Ordinarily, conceded Mr Davies, such a submission would be wholly misplaced. In the circumstances of this case, however, the merit lay in the history of the case. No complaint was made about the judge’s desire that the case be listed quickly out of respect for the feelings of the bereaved family. But the only reason the original trial date was vacated was the late service by the CPS of the report of their accident investigator. That report significantly altered the evidence and the defence were obliged to instruct their own expert to consider its accuracy since it was so at odds with the evidence of the independent witness called by the prosecution, Mr Wilson. The timetable set by the judge meant that defence report was not available until a day or two before the trial. Having been completed without a site visit, the report could not be relied upon, according to the expert himself. 30. It was therefore not until the evening of the first day of the trial that the applicant had the benefit of his own expert’s opinion. The effect was immediate. The very next day he changed his plea. If it had not been for the late service of the prosecution’s report and the judge’s timetable this could have happened before the trial date. In Mr Davies’ submission there was every difference between a criminal who knows he has committed an offence, which is later confirmed by forensic evidence, and the applicant, who had a mental picture of an empty road. He believed therefore that the motorcycle was not within his field of vision when he emerged from the side road. He was encouraged in that belief by the account of the incident that he saw in Mr Wilson’s statement and the opinion he voiced to the police at the time. Analysis 31. Like the judge we do not find it easy to apply the categories in the sentencing guidelines. The lowest category is momentary inattention with no aggravating factors, which under the guidelines is to be visited by a community order. The examples given in the sentencing guidelines involve an offender who misjudges the speed of another vehicle or who turns without seeing an oncoming vehicle because of restricted visibility. Perhaps another instance would be the parent or carer, momentarily distracted by the urgent cry of a child in the backseat of a vehicle. At the other end, with the highest category, driving falling not far short of dangerous driving, there is the assistance of the statutory definition of dangerous driving in section 2 B of the 1998 Act and the case-law on the subject. 32. No assistance is available, however, as to the second, the intermediate category in the sentencing guidelines, “other cases of careless or inconsiderate driving”. It is a residual category, if the driving falls neither just short of dangerous driving on the one hand nor constitutes momentary inattention on the other. We envisage that this category can include instances of single misjudgements. Each case will turn on its facts. Each piece of driving has to be viewed objectively in relation to the surrounding circumstances. It is necessary as well to have regard to the circumstances as known to, and understood by, the driver: see section 32 A(3) of the 1988 Act . 33. In this case we do not think that the judge fell into error in treating this driving as falling into the second, the intermediate, category in the sentencing guidelines. We agree with him that it is very difficult to characterise what happened as momentary inattention. The applicant stopped at the junction and looked right, left and right again. As he conceded by his plea his uninterrupted field of vision was some 300 metres to his right-hand side. He should have seen Mr Wilkinson’s motorcycle. One of his passengers, Ms McArdle, thought she saw car headlights in the distance but that it was at such a distance that the applicant would have had time to cross the junction. As the judge said, it may have only been moments, but the applicant was moving off from a give way junction into a major carriageway and had an obligation to check that there was no obstruction in his path as he did so. 34. Where we differ from the judge, however, is in his treatment of speed and the implications of this for the applicant’s driving. The judge had the benefit of hearing a day of the evidence and his sentencing remarks demonstrate his characteristically careful attention to both the law and the facts. He heard Mr Wilson give evidence and he rejected his estimate of Mr Wilkinson’s speed of 80 mph as wrong. But he then said that Mr Wilkinson “may have been travelling no more than 50 mph”. That, of course, was the evidence of Mr Boulton, the prosecution expert. But the defence expert, Mr Greatrix calculated that Mr Wilkinson’s speed was more than 57 mph, although he was not able to give an exact figure. He also said that an expectation that Mr Wilkinson was travelling at the speed limit might well have assured a driver that it was safe to move out. 35. We are not certain that the judge was aware of the defence evidence on speed. Mr Davies frankly conceded that he did not major on Mr Wilkinson’s speed in his submissions before the judge. There were other considerations at the forefront of his case. In our view, the unresolved issue of speed means that the applicant’s single misjudgement must be placed at the low end of the intermediate, the second category, of careless driving in the sentencing council guidelines. 36. The limited discount which the judge gave for the applicant’s guilty plea is also of concern to us. Now that we understand the special circumstances of how the applicant came to plead guilty on the morning of the second day of trial we are persuaded that the judge should have given a greater discount than he did. Conclusion 37. This type of case is immensely difficult. As we have said this particular case is especially tragic. The accident involved two young men, both highly thought of and with great promise. Coincidentally they had known each other at primary school. It is evident from the victim impact statements that the parents, sister and a grandparent of Mr Wilkinson have suffered a most grievous loss. Nothing the court does can replace their son, brother or grandson. But the impact of Mr Wilkinson’s death is not confined to his family and friends. According to the Pre Sentence Report the applicant himself is deeply scarred by what happened and the report writer opines that he may be dealing with the situation on the surface only. 38. In our view, for the reasons we have explained, the level of the applicant’s culpability did not justify a custodial sentence. That being the case we give leave and allow the appeal and substitute a community order involving an unpaid work requirement of 100 hours. Ordinarily a more onerous community order would have been justified but we are mindful that the applicant has been subject to the sentence we have just quashed for the last three months. We also quash the penalty points imposed. The judge was misled by counsel as to his power to impose these: if the court does disqualify from driving it is not able, on the same occasion, to order penalty points: section 44(1) of the Road Traffic Offenders 1988 Act.

2009_11_27-2173.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2459/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2459

cb4c5d2bfb08ecaac3c68ca530cd667c66b86f8f3693083ef4191f9f4192ef47

[2009] EWCA Crim 374

EWCA_Crim_374

crown_court

No. 2009/00647/A8 Neutral Citation Number: [2009] EWCA Crim 374 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 18 February 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE WYN WILLIAMS and MR JUSTICE HOLROYDE __________________ R E G I N A - v - BILLY METCALFE __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, L

No. 2009/00647/A8 Neutral Citation Number: [2009] EWCA Crim 374 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 18 February 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE WYN WILLIAMS and MR JUSTICE HOLROYDE __________________ R E G I N A - v - BILLY METCALFE __________________ 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 R S Sandford appeared on behalf of the Applicant ____________________ J U D G M E N T THE LORD CHIEF JUSTICE: I shall ask Mr Justice Wyn Williams to give the judgment of the court. MR JUSTICE WYN WILLIAMS: 1. On 24 September 2008, at Barnsley Magistrates' Court, the applicant pleaded guilty to one offence of handling stolen goods and he was convicted of a second such offence. He was committed to the Crown Court for sentence. On 17 October 2008, again at Barnsley Magistrates' Court, the applicant pleaded guilty to an offence of theft. He was committed to the Crown Court for sentence in respect of that offence. On 22 October 2008, at the Crown Court at Sheffield, before the Recorder of Sheffield, His Honour Judge Goldsack QC, the applicant was sentenced as follows: in respect of the offence of handling stolen goods of which he had been found guilty, twelve months' imprisonment; in respect of the offence of handling stolen goods to which he had pleaded guilty, eight months' imprisonment, concurrent; and in respect of the offence of theft, two months' imprisonment, consecutively. The total sentence passed was therefore fourteen months' imprisonment. 2. By the time that he appeared at the Crown Court for sentence, the applicant had spent 88 days in custody on remand in connection with the offences for which he was sentenced. Mr Sandford, his counsel, assumed that the judge would direct that those 88 days spent on remand should count towards the applicant's sentence. He therefore made no submissions to the judge about that aspect of the sentencing process during the course of mitigation. When the judge passed sentence, however, he expressly specified that the 88 days should not count towards the sentence. 3. On 26 October 2008 (that is four days after sentence was passed), Mr Sandford settled grounds of appeal against sentence. He took one point, namely that the judge fell into error in directing that the 88 days should not count towards sentence. For reasons about which we are not entirely clear, the grounds of appeal were not lodged in time. Indeed, they were lodged 82 days late. However, upon consideration of the documents lodged, the Registrar granted an extension of time in which to apply for leave to appeal and referred the application to the full court. For reasons which will become obvious, we consider that this is an appropriate case for leave and accordingly we grant it. Henceforth in this judgment we will refer to the applicant as the appellant. 4. The facts of the three offences for which the appellant was sentenced can be stated very briefly. In the early hours of the morning of 8 June 2008, police officers came across some male persons acting suspiciously. When the men saw the police they ran off. The appellant was one of the men. After a short chase he was found hiding in some long grass. He was searched and found to be in possession of a toy and a car stereo lead which had been stolen from a car which had been parked outside a house. This was the offence of theft for which the appellant was given two months' imprisonment. 5. He was arrested. Upon arrest and during interview he denied any wrongdoing. 6. Approximately six weeks later, on 24 July 2008, the appellant's home was searched. A power drill and drill bits worth £210, which had been stolen during the course of a burglary of a garden shed the previous day, were discovered. Also discovered and recovered were some tools consisting of a wrecking bar, two saws, two boxes of screws, a transformer and battery, which had all been stolen from a building site the previous night. Those constituted the two offences of handling stolen goods. 7. The appellant was arrested. When interviewed he did not admit his involvement in either offence. 8. When the appellant appeared for sentence on 22 October 2008 he was aged 24. He had a large number of previous convictions. In summary, he had appeared before courts on 17 occasions in relation to 30 offences. For present purposes by far the most significant of those appearances was that which occurred on 6 March 2006. On that occasion the appellant appeared before the Sheffield Crown Court and was sentenced to a total term of four years' imprisonment. He was sentenced to two years' imprisonment for the offence of assault with intent to rob, and a consecutive term of two years' imprisonment for the offence of possessing an imitation firearm with intent to cause fear of violence. 9. The appellant was released from the sentence of four years' imprisonment on 26 October 2007. It follows that he was being supervised on licence at the time that he committed the offences of handling and theft in June and July 2008. By virtue of section 254 of the Criminal Justice Act 2003 it would have been open to the Secretary of State, or those persons to whom she delegated the relevant function, to recall the appellant to prison once it had been discovered that he had committed offences in June and July 2008. It appears, however, that a considered decision was made that the appellant should not be recalled. The information we have about that is contained in the pre-sentence report which was before His Honour Judge Goldsack QC. The pre-sentence report indicated that the Probation Service had taken the decision that there should be no recall and that there were two bases for that decision. The first was that the appellant had been remanded in custody. The second was that the view had been taken that the offences committed were offences of dishonesty, not violence, and that in those circumstances the appellant could be appropriately managed in the community. In fact, the pre-sentence report presented to the sentencing judge suggested sentencing options other than immediate custody. 10. Judge Goldsack QC decided not to follow the recommendation in the pre-sentence report, but imposed immediate custodial sentences. No complaint is made about this aspect of the sentencing process. 11. The judge also expressly considered what he should do about the 88 days spent on remand. On this topic he said this: "It is outside the power now of the court to order you to go back and serve the balance of the four year sentence. That power has apparently been given by Parliament to either the Prison Governor or the Probation Service, and the Probation Service in this case decided not to recommend your recall because these were not offences of violence." The judge then went on to explain the nature of the sentences he was to pass and why he was passing them. At the end of his sentencing remarks he returned to the question of the 88 days. He said: "I then have to consider whether I should direct that the 88 days spent on remand should count towards your sentence. In my judgment, in this case, they should not, given that you were on licence at the time and really should still have been serving your sentence, so it is fourteen months from today." 12. The relevant parts of section 240 of the Criminal Justice Act 2003 are in the following terms: "(3) Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence. (4) Subsection (3) does not apply if and to the extent that -- (a) rules made by the Secretary of State so provide .... (b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection." 13. The issue raised by Mr Sandford in this appeal relates to sub-paragraph (b). He submits that it was not just in all the circumstances not to give a direction under the subsection. He has developed his submission most helpfully in his advice and grounds of appeal. In paragraph 22 he makes the following submission: "In the case of R v Gordon [2007] 2 Cr App R(S) 66, paragraph 31, the Court of Appeal stated as follows: 'The imperative is that no prisoner should be detained for a day longer than the period justified by the sentence of the court. Section 240 of the 2003 Act is clearly directed to achieve that, save in cases specifically identified for express reasons, credit should be given to the prisoner for time spent in custody on remand, unless such credit would contravene some other statutory provision or result in double crediting. That is why the Sentencing Guidelines Council in "New Sentences: Criminal Justice Act" explained that "The court should seek to give credit for time spent on remand in all cases .... it should explain its reasons for not giving credit ....'" In paragraph 23 Mr Sandford continues by submitting that one of the effects of the Criminal Justice Act 2003 was to take decision-making on the issue of recall to prison during a licence period out of the hands of the judiciary and to place it in the hands of the Home Office and Probation Service. He therefore submits that in the instant case, where the Probation Service has made a conscious decision not to recall the appellant, it was not just in all the circumstances to decline to credit the remand period against sentence, thereby indirectly and in effect triggering a custodial period arising from the licence period. 14. On the particular facts of this case we agree with those submissions. We accept them to be well-founded. Accordingly we take the view that the judge should have made a direction under section 240 , as opposed expressly declining so to do. 15. Mr Sandford makes a further complaint about the sentencing process. He complains that he was not given the opportunity to deal with the possibility that the judge would make no direction under section 240 before the judge took that course. In his grounds he referred to the decision of this court in R v Barber [2006] 2 Cr App R(S) 81, which makes it clear that a sentencing judge who has it in mind to direct that time spent in custody on remand should not count towards sentence should raise the issue squarely with defence counsel before sentence is passed, thereby affording him the opportunity to make appropriate submissions on the point. 16. We repeat what was said in Barber . In our judgment good practice demands that counsel is given the opportunity to address the point head-on if a sentencing judge is considering not making a direction under section 240 of the 2003 Act . 17. For the reasons we have indicated, this appeal is allowed. This court directs, pursuant to section 240 of the Criminal Justice Act 2003 , that the 88 days spent in custody on remand should count towards the appellant's sentence.

2009_02_18-1825.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/374/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/374

f352d4892905212d3c138a1b9a09baefa30c5383020ed4eae76ea61e6e5fe22b

[2007] EWCA Crim 147

EWCA_Crim_147

crown_court

No: 200606008/A6 Neutral Citation Number: [2007] EWCA Crim 147 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 23rd January 2007 B E F O R E: SIR IGOR JUDGE (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE GRAY MR JUSTICE RAMSEY - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 130 OF 2006 (KATE ELIZABETH JONES) - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith

No: 200606008/A6 Neutral Citation Number: [2007] EWCA Crim 147 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 23rd January 2007 B E F O R E: SIR IGOR JUDGE (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE GRAY MR JUSTICE RAMSEY - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 130 OF 2006 (KATE ELIZABETH JONES) - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR J LAIDLAW appeared on behalf of the ATTORNEY GENERAL MR N GEDGE appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. SIR IGOR JUDGE: This a Reference, under section 36 of the Criminal Justice Act 1988 , by Her Majesty's Attorney-General, of a sentence imposed on Kate Elizabeth Jones on 31st October 2006. 2. The offender is now 23 years old. She was born in January 1984. On 27th September 2006, before His Honour Judge Furness and a jury, at Cardiff Crown Court, she was convicted of offences of causing grievous bodily harm with intent and assault occasioning actual bodily harm. Sentence was adjourned for the purposes of a pre-sentence report and on 31st October the offender was sentenced to a term of 2 years' imprisonment in respect of the section 18 offence, with a concurrent term of 9 months' imprisonment for the section 47 offence. 3. As to the section 18 offence, the victim of that offence was a man called Lee Moorland. The offender had pleaded guilty on an earlier occasion to unlawful wounding contrary to section 20 of the Offences Against the Person Act. The issue on which she stood her trial was whether the Crown proved the necessary intent. 4. So far as the assault offence was concerned, the jury acquitted the offender of unlawfully attempting to cause grievous bodily harm to the victim, a young woman called Jahrine Purser. 5. The facts of the offence are not complicated. We are concerned with an incident that occurred on 6th October 2005. The man, Lee Moorland, and the young woman, Jahrine Purser, went with a group of friends to watch a band playing at a nightclub in Cardiff. At about 10 o'clock that evening they were watching the main act and found themselves standing just behind the offender. She was behaving in a disgusting fashion, taking mouthfuls of beer from a bottle and spitting on the backs of those in front of her. She appeared to be drunk and unsteady on her feet and on a number of occasions she fell back or lent forwards, but in particular fell back into Miss Purser. Unsurprisingly Miss Purser asked her to be careful. The response from the offender was to become aggressive, shouting and swearing, calling Miss Purser among other epithets "a stupid bitch" and "a cunt". She then appeared to leave the immediate vicinity but she returned carrying a beer bottle. This was thrown, without warning, in the direction of Miss Purser. The bottle missed her but struck Lee Moorland in the forehead. He was in fact caused a very serious injury, but to begin with his injury was not apparent. 6. Indeed, he followed the offender to an area near to the entrance of the club, accompanied by Miss Purser and two other friends. The offender was in a corner of the room. Mr Moorland asked whether she had thrown the bottle. The offender became abusive and, in the course of an altercation, she pushed a lighted cigarette into the face of Miss Purser, making contact with her face, just below and to the left of her eye, then dragging the lighted cigarette down her cheek. Mr Moorland intervened to protect Miss Purser. He was head-butted to the forehead by the offender. She was then asked to leave the club. She did so. She was arrested by the police later. 7. Throughout the interviews she denied throwing a bottle and denied assaulting Miss Purser with a cigarette. 8. As we have indicated, Mr Moorland did not immediately appreciate the seriousness of the injury which he had suffered. In fact he had sustained a fracture to his skull and, as the X-ray photographs show, it was a very serious fracture. It was not until 17th October, after a bout of severe headaches and periods of dizziness, that he went to hospital. After that he underwent major surgery to repair a complicated fracture to the centre of his forehead. This involved the insertion of Titanium mesh and screws. He was off work for five weeks. He has permanent scarring across the top of his head, concealed by his hair when worn at normal length but apparent when his hair is worn short. He appears, fortunately, to have made a full recovery from the physical effects of the attack but he continues to suffer some psychological consequences: he is reluctant to go out; he has not returned to the nightclub in question and, as it is put, he finds himself more anxious than he was previously. 9. Miss Purser was left with a burn and a blister below her left eye. A scab which formed within two or three weeks of the incident had healed completely. In the end she did not pursue medical attention for her injury. 10. The serious nature of this case is readily apparent from the short narrative. The offender was behaving in an aggressive and unpleasant way. When she was called gently to order, she became violent. She armed herself with a bottle. She threw it. The jury found that when she threw it, she intended to cause really serious injury in what amounted to an unprovoked attack. Having used the bottle as a weapon, shortly afterwards she forced a lighted cigarette into the face of another victim. Serious injuries were caused by the misuse of the bottle. It is fortunate that the consequences of the use of a lighted cigarette as a weapon were not more severe. Altogether this was a serious offence. 11. The offender is a young woman of previous good character. The facts which we have endeavoured to narrate simply do not square with the very carefully prepared, thoughtful and detailed character references that we have received and which were before the judge. 12. Let me just quote one of them from someone who is a mature woman, who has known this young woman since she, the young woman, was 3 years old and herself works as an LEA adviser. She describes the offender as "vibrant, engaging and a talented girl with a big heart. Amongst her friends her generosity is legendary, whether in terms of her time or possessions. They also love her for her loyalty." Then omitting some further observations: "one of her most engaging qualities is her self-deprecating sense of humour. In conversation about Kate, her teacher and I were agreed that she is a very clever girl, creative and imaginative. The potential in Kate is enormous. Given the right advice and support, she has a lot to give both to her immediate society and the wider community." We need not quote any other of the relevant references but they do indicate that this is a young woman about whom very positive things can properly be said. 13. Again, we know and the reasons are not apparent from the pre-sentence report, nor, and we make no complaint about this, from what Mr Gedge has had to say on this topic, and we are not, for one moment, blaming her parents, nor her, this talented young woman is very seriously estranged from her parents. That is a great sadness. It is also unhappy to record that she was intelligent enough to have won a place at university but that was lost before this incident simply because she was unable, for whatever reason, to continue with it. It rather looks as though she ran into debt. But on the face of the reports we have seen, her inability to continue to complete her university course, to achieve an appropriate degree and then take her ordinary place in the community is an underachievment. 14. We have considered two reports on her since she has been in custody. The first report was prepared at a very difficult time. Indeed, as we understand it, the response which indicates a degree of concern about one particular incident arose because she had been told on that very day that her case would be referred to this Court. The latest report, on 21st January, that is to say a day or two back, describes her as extremely helpful and polite. She has been patient and understanding when seeking responses from the Legal Services Officer. She received some distressing news to which she reacted in a very much mature way. The recommendation, and it is a high recommendation, is that she should apply to become a member of the Resettlement Unit in the prison. This is an area within the prison where prisoners are expected to display a high level of responsibility and trust. They are not locked up. They are subject to far less supervision than normal. It is expected that she would behave in the appropriate manner expected of someone entrusted with a place on this unit. The report ends by describing her as "a well behaved polite lady who has been willing to work hard to change her behaviour and I feel deserves to be rewarded in due course for her efforts." 15. In dealing with the evidence from the prison, we have, of course, gone ahead. We have considered the pre-sentence report. That was silent about the circumstances of estrangement. It did not in truth take the case very much further forward. 16. We have, of course, closely examined the judge's sentencing remarks. He had presided over the trial and would have been well able to form his own view about the character, personality and attitude of this offender. We cannot discern in his sentencing remarks the reasons why this undoubtedly lenient sentence was thought by him to be appropriate. If the judge had identified any individual feature or features which had led him to that decision, we should, of course, have paid very close attention to it. In the end, the features which seemed to him to be most important, and understandably they were certainly of some importance, were the very many positive features of the offender's character set out in the references. 17. A number of sentencing decisions, sometimes described as "authorities", which they are not, were drawn to our attention. We have considered them. We have been invited by Mr Gedge to notice some of the differences between the individual cases drawn to our attention, and the features of this case. We do not find our thinking greatly illuminated by consideration of the previous decisions. They are fact specific. The facts in this case that we have a young woman who behaved in this extraordinary violent and dangerous way when she was in drink. 18. The final feature of the case which we attend to is this. We were asked to consider the possibility of reflecting on double jeopardy. We need not add to, nor attempt to describe the jurisprudence currently developing at a great rate on this topic. What seems to us to have some significance in this case, given that in particular that we are dealing with a young woman of good character, who by definition has never been to prison before and who has responded well to her sentence, now that she is well into it, is that quite apart from her date of release, she has already been told that she may -- nobody suggests she has been told that she will -- may be eligible for release in this coming June, on the usual Home Detention Curfew arrangements. That is a factor which we bear in mind in reflecting on the proper outcome of this Reference. 19. Our conclusion is this: the Reference is properly made. We have already given leave. This sentence was unduly lenient. We have tried hard to see whether there is any basis on which, given so much that could be said on behalf of the offender, we can avoid an increase in sentence. We cannot do that. We find ourselves in effect obliged by the circumstances of her behaviour on this sad night in October 2005 to say that the sentence imposed at the Crown Court must be increased. We shall raise it to the minimum level that we think appropriate given all the circumstances, and in place of the sentence of 2 years' imprisonment for the offence contrary to section 18, we shall impose a sentence of 3 years' imprisonment. To that extent, this Reference is upheld and the sentence increased.

2007_01_23-1012.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/147/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/147

6ecf7e1e60b9cf1daf71751db2ddc851c4fab80d759ee05b94e4e5af296d555c

[2006] EWCA Crim 244

EWCA_Crim_244

crown_court

No: 2005/5089/A5 Neutral Citation Number: [2006] EWCA Crim 244 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 31 January 2006 B E F O R E: LORD JUSTICE GAGE MR JUSTICE NELSON SIR JOHN ALLIOTT - - - - - - - R E G I N A -v- SAM MITCHELL - - - - - - - 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: 2005/5089/A5 Neutral Citation Number: [2006] EWCA Crim 244 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 31 January 2006 B E F O R E: LORD JUSTICE GAGE MR JUSTICE NELSON SIR JOHN ALLIOTT - - - - - - - R E G I N A -v- SAM MITCHELL - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR N HAMBLIN appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MR JUSTICE NELSON: On 23rd August 2005 at the Crown Court at Lewes, the appellant was convicted of eight offences of obtaining property or money transfer by deception. When he was sentenced the same day he asked for five offences of a similar nature of obtaining property or money transfer by deception to be taken into consideration and those were by the judge. On the same day, 23rd August 2005, he was sentenced to seven years' imprisonment on each of the eight counts concurrent, making a total of seven years' imprisonment. He appeals against that sentence by leave of the single judge. 2. There was a co-accused, Emma Mitchell, the appellant's daughter. She was convicted of assisting in the retention of the proceeds of criminal conduct and facilitating the retention, use or control of criminal proceeds and was sentenced to a 200 hour community punishment order. 3. The facts are that from the beginning of 2000 to the end of 2003 the appellant dishonestly obtained money from two elderly individuals, Mr Heal and Mrs Taylor, both of them at the time in their late seventies. The appellant's method was to pretend that their homes needed some roofing work, that he would carry out the work and that the monies paid to him, often in advance, were a fair price for the work. In fact such work as he carried out was of poor quality and he knew the value of it was far less than the amounts he obtained. His daughter, the co-accused, allowed him to pay some of the money he obtained dishonestly into her bank account. 4. In January 2000 when these offences started the appellant knocked on the front door of Mr Heal's bungalow and offered to clean his gutters. Mr Heal accepted and let him get on with the work. The appellant then advised him the roof would need remedial work and that was the beginning of a pattern which carried on for over three years. The overall sum the appellant obtained from Mr Heal was nearly £94,000. This caused Mr Heal considerable financial hardship and having exhausted his life savings he had to rearrange his finances with an equity release on his house, the consequence of which was that approximately half the equity in his house was lost. Most of the payments were made to the appellant in cash. Some five payments were made by cheque. 5. The offences came to light when Mr Heal's daughter visited her father in late November 2003 and on hearing her father's account of what was going on alerted the authorities. An independent surveyor was requested to look at Mr Heal's property. He did and found that the majority of the alleged work carried out was poor and that the overall amount of work carried out was actually worth in the region of £2,000. 6. As a result of their enquiries, police officers found that the appellant had targeted Mrs Taylor, an 83-year-old woman, in 2002. She had hired him to do some work on her roof and had paid him £7,500 in total to do so. An independent surveyor considered the charges for that work to be extortionate, unnecessary and most of it was indeed worthless. It was those offences in relation to Mrs Taylor which the appellant asked to be taken into consideration. 7. He was arrested on 15th May 2004. In his first interview he said that he had done building work for Mr Heal for nothing since they were friends, that the money given to him by Heal was a gift and that no cash had changed hands. He used his daughter's bank account for cheques because he did not have a bank account of his own. In his second interview concerning Mrs Taylor he declined to comment but read out a statement saying he worked for her on a number of occasions and believed that he had carried out the work correctly. 8. The appellant is a man who was born on 25th January 1954. He has various convictions, none for which he received a custodial sentence and none in the recent past. When the judge sentenced him he said that on the clearest of evidence, which of course the judge had heard, the appellant had been convicted and his dishonesty as described by the account that he gave of what had happened was blatant. He was an unprincipled man without any idea of honesty or decency and had tried to talk his way out of the allegations and showed no remorse or regret. The sum over the three year period for Mr Heal was some £94,000. He preyed on the elderly and had done here. It was inconceivable that he did not know that Mr Heal had had to take out loans as a result of the extortionate demands which he had made. The victims were not only elderly but vulnerable and had suffered as a consequence. The appellant was even prepared to involve his own daughter who now had a criminal record because she went along with his gross dishonesty. The appropriate sentence was therefore, the judge concluded, seven years concurrent on each of the offences in relation to Mr Heal having taken into account the offences relating to Mrs Taylor. 9. Before us today Mr Hamblin has submitted that the sentence of seven years was simply too long. He prays in aid the appellant's age (51), his health (he has high blood pressure), the fact that his wife is totally dependent upon him, the fact that although he has previous convictions he has never served a custodial sentence showing that they were not regarded by the courts then sentencing him as being serious. He contrasted with this situation the cases upon which he relied in his written perfected advice and today in particular such as the case of R v Campbell [1995] 16 Cr.App.R (S) page 20 where a five year sentence of imprisonment for obtaining over £64,000 from an elderly lady by falsely representing the need for building work was reduced to one of four years in the Court of Appeal. The deception there was against a 78-year-old woman. The total sum obtained, as we have said, £64,000, and the distinguishing features were twofold: first of all that was a sentence where the man concerned had not only numerous previous convictions for dishonesty but had already observed substantial terms of custody including one sentence of four years. When that case, and in addition the cases of R v Flynn [1999] 1 Cr.App.R (S) 413 and R v Bennett [1992] 13 Cr.App.R (S) 586 were considered, it could be seen that the sentence was too long in the case of this appellant, bad though the offences were. 10. We agree with the remarks which the sentencing judge made when passing sentence and indeed his analysis. The Court of Appeal has referred to cases of this kind as being outrageous, mean and devious, and even evil. The characterisation is particularly apt to offences where the criminal conduct involves a sustained period of preying on the elderly. Here very substantial sums were involved. The offences took place over a considerable time and the victim lost a considerable portion of the value of his house in order to pay the appellant for the unnecessary works carried out. These were without doubt serious offences. It is to be noted that in Mrs Taylor's case (the offences to be taken into consideration) those were also against an elderly victim. It would be right to say that the appellant's conduct was despicable. But this court has to ask itself whether given the line of authorities and the general pattern of sentencing in cases of this kind, the sentence of seven years was overall too high. 11. We have come, after considerable thought, to the conclusion that it was. When one looks at, as has been cited by Mr Hamblin today, the case of Campbell and indeed the cases of Flynn and Bennett as well, it can be seen that cases of this kind, even for substantial sums, customarily receive a sentence of the order of four years' imprisonment, sometimes on a plea sometimes on a fight. Campbell is an example of a contested trial, worse in some ways than this though somewhat less in the overall value of money taken, where four years was the sentence which was substituted by this court. We have considered and concluded therefore that this sentence was severe, it was for a very bad offence, but in spite of the meanness and the sustained nature of the dishonesty, the sentence of seven years was too long. In our view a sentence of six years would meet the justice of the case. Accordingly, the sentence of seven years on each of the eight counts is quashed and a sentence of six years on each count concurrent is substituted for it, making a total of six years. To this extent the appeal is allowed.

2006_01_31-702.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/244/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/244

9ae28f43508184f18e24a8de554b715b1f38d201b760b8918a711e7359d33716

[2022] EWCA Crim 832

EWCA_Crim_832

crown_court

Neutral Citation Number: [2022] EWCA Crim 832 Case No: 2021/01792/01793/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEWES MR JUSTICE FRASER T2020/7114 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/06/2022 Before: LORD JUSTICE FULFORD MRS JUSTICE CUTTS and MR JUSTICE HENSHAW - - - - - - - - - - - - - - - - - - - - - Between: JENNIFER NANCY JOHNSON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2022] EWCA Crim 832 Case No: 2021/01792/01793/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEWES MR JUSTICE FRASER T2020/7114 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/06/2022 Before: LORD JUSTICE FULFORD MRS JUSTICE CUTTS and MR JUSTICE HENSHAW - - - - - - - - - - - - - - - - - - - - - Between: JENNIFER NANCY JOHNSON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Christopher Henley QC and Mr Andrew Bishop (instructed by Bishop and Light Solicitors ) for the Applicant (This was a renewed application for leave and the Crown was unrepresented) Hearing date: 15 June 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Fulford: There are no reporting restrictions. 1. On 17 May 2021 in the Crown Court at Lewes before Mr Justice Fraser and a jury, the applicant (now aged 56) was convicted of count 1, perverting the course of justice and count 2, making a false statement. 2. On 19 May 2021, the applicant was sentenced by the judge to two concurrent terms of 6 years’ imprisonment. 3. Before this court, she renews her application for leave to appeal against conviction and sentence following refusal by the single judge. 4. In November 1987 the applicant’s then partner, Russell Bishop, was tried for the murders of two nine-year-old girls, Nicola Fellows and Karen Hadaway who had been killed on 9 October 1986 in a woodland called “Wild Park”. The trial became known as the “Babes in the Wood” case. A crucial piece of evidence against Bishop was a blue sweatshirt with the word “Pinto” written on it. It had been found during the search for the girls and was linked to the murderer. As suspicion of Bishop’s involvement grew, the police tried to establish if he owned the sweatshirt because it had been found on an obvious route from Wild Park and the flat where he and the applicant lived. If it belonged to Bishop, it was a critical piece of evidence against him. 5. The applicant provided the police with various witness statements during the police investigation. Bishop, by then the key suspect, was arrested on 31 October 1986. Police officers went to the applicant’s address on the same day. PC Edwards, who knew the applicant and Bishop, accompanied the two detectives. The applicant was shown the Pinto top and she said words to the effect of “you’ve brought Russell’s top back”. The applicant thereafter provided a witness statement stating that she recognised the sweatshirt as being exactly the same as Bishop’s. Although she did not examine the garment, she indicated that the one belonging to Bishop had red compound staining on one of the sleeves, something that had happened when he was “rubbing down one of his vehicles”. She particularly recalled this substance because it would not wash off. She said a pair of Bishop’s jeans also had the same red substance on them. Her description matched the sweatshirt. She could not recall when she last saw it, and she thought it was in their wardrobe; however, she was unable to find it. She had recently thrown some clothes away, but she did not recall that the sweatshirt was amongst those items. 6. On 1 November 1986, the applicant attended the police station and told the police that she was withdrawing the statement she made on 31 October and would not attend court. On 3 December 1986 Bishop was re-arrested and charged with the murders. 7. Whilst in custody awaiting trial, Bishop and the applicant wrote to each other. The letters included discussion about a 15-year-old girl with whom Bishop was sexually involved, and that Bishop would marry the applicant on his release. Bishop, however, did not think he would be at liberty in the near future due to forensic developments in the case and the Pinto sweatshirt. 8. On 2 January 1987 the applicant provided a signed statement to Bishop’s solicitors stating that Bishop’s behaviour was normal on 9 October 1896; that the police had not shown her any of her written statements and she had never seen the contents of them; that the police kept calling at her house and had taken numerous items of Bishop’s clothes; that she could say with absolute certainty that she had never seen Bishop wear a Pinto sweatshirt; and that had he worn one she would have seen it. 9. She wrote a further statement on 13 October 1987, again denying that she had seen Bishop wear the Pinto sweatshirt 10. Bishop stood trial in November 1987. The prosecution indicated that they intended to rely on the applicant as a prosecution witness and the defence thereon served the prosecution with the applicant’s withdrawal statement of 13 October 1987. The applicant gave evidence on 20 and 23 November 1987. She was treated as a hostile witness. She testified that she did not recognise the Pinto sweatshirt when shown it by the police; that it did not belong to Bishop, a fact which she claimed she had told the police; that she had signed for a pair of trousers only and had not made a statement about any other item; that whilst her signature was on the statement from 31 October 1986, she said she simply signed where indicated and, accordingly, she did not write the statement relied on by the prosecution; and that she signed it because of the poor way the police officers treated her, assuming she was guilty. Furthermore, she alleged her initials on parts of the statement had been forged. 11. Bishop was acquitted of the offences. 12. On 4 February 1990 offending occurred that resembled the murder of the two victims in the present case. A seven-year-old girl left her home, was grabbed, bundled into the boot of a car and taken to the Devil’s Dyke area of Brighton, another wooded area. She was stripped, sexually assaulted and strangled. She was left for dead by her assailant in wooded undergrowth, but fortunately she regained consciousness and survived. She provided vital evidence that identified Bishop and his car. Bishop stood trial for the offence and on 13 December 1990 was convicted of attempted murder, kidnap and indecent assault and sentenced to life imprisonment. 13. In 2003 the double jeopardy rule was abolished and in 2017 advances in scientific analysis and DNA enabled the prosecution to apply to this court for Bishop’s acquittals to be quashed on the basis of new and compelling evidence. Bishop was re-tried for the offences in December 2018 and convicted. He was sentenced to life imprisonment with a minimum term of 35 years for each murder. In 2019 the applicant was interviewed by the police about the witness statements and evidence she gave at the trial in 1987. She accepted that the statement of 31 October 1986, identifying the Pinto sweatshirt as Bishop’s, was truthful and she admitted she had subsequently lied. In March 2020 she was charged with perverting the course of justice and perjury. Her defence was that she had been acting under duress. It is to be stressed, therefore, that it was not in dispute at the applicant’s trial that the witness statements of 2 January and 13 October 1987 were false, as was the oral evidence she gave at Bishop’s trial, and that the original statement of 31 October 1986 had been true. 14. By way of relevant background, the applicant turned 21 in November 1986 and worked as a cleaner. Bishop was a few months younger. They were parents to a son who had been born in February 1985, when Bishop was in prison for burglary. There was evidence that the relationship between the two of them was volatile. Bishop had assaulted the applicant, including when she was pregnant. This violence had particularly featured following the commencement by Bishop of an affair with a 15-year-old girl in October 1985, to which we have referred above. On 1 June 1986 the applicant told police officers that she had been assaulted by Bishop and requested alternative housing. There was bruising to her face and neck. A health visitor provided some support for the contention that Bishop was violent to the applicant. There was other evidence confirming Bishop’s capacity for violence. 15. At the applicant’s trial, the prosecution argued that when she provided the witness statements of January and October 1987 and testified at Bishop’s trial, she was not acting under duress. It was suggested that the applicant had not given a credible account and that she lied when it suited her. The applicant suggested she had been subjected to imminent threats of death or serious violence and had acted as she did because of those threats. The applicant maintained that she had been in a coercive and controlling relationship with Bishop and effectively had no will. As a consequence, she was obliged to do as she was told by Bishop and his family. 16. In terms of the detail of her account, she recounted that her parents were strict and she was told she would have to move out of the family home when their first child was born. The local authority provided her with accommodation after the birth of their son, which coincided with a period when Bishop was in prison for burglary. The only support she had, therefore, was from Sylvia Bishop, her partner’s mother. Bishop, she said, was violent towards her. He raped her and forced her to have anal sex. A letter he wrote from prison that contained graphic sex references was an example of how he treated her. He strangled and hit her if he failed to get what he wanted. She agreed that Bishop had told her of the significance of the sweatshirt because the person who wore it murdered the girls and she knew Bishop was the person who wore and owned it. She maintained that she did not know Bishop had killed the girls, because she did not think any human being could do such a thing. 17. She suggested that the police were at fault for her lies which would not have been told if they had protected her. She denied playing a part in Bishop’s acquittal and indicated “you never get on the wrong side of his family”. It was her contention that his family was violent. 18. Sylvia Bishop had taken her to visit Bishop in the prison every day. On one occasion, she visited Bishop’s solicitor’s office after visiting Bishop in prison. The solicitor gave her a document and told her where to sign. She did not read it – indeed, she was told she did not need to do so – but she knew it was something to do with Bishop. She accepted, however, she may have given the solicitors details to put in the retraction statement. She maintained she did not have a choice when giving evidence at Bishop’s trial. Every time she met Bishop in prison he told her she had to change her statement or he would find her and kill her. She said she was naïve, stupid and scared of Bishop. When she arrived at court in 1987 she could see the Bishop family staring at her. She was nervous and frightened and decided to give a false account only once she was in the witness box. She wanted to tell the truth but she was unable to do so because she had no choice. It is to be noted that there was a large measure of agreement between the defence and prosecution experts during the trial regarding our contemporary understanding of the linked issues of coercive control and domestic abuse. 19. Her case was, therefore, that she acted as she did on account of threats of imminent death or serious violence, in the context of a relationship which was coercive and abusive. 20. Turning to the three grounds of appeal, the applicant argues that: a. A fair trial was impossible over 30 years after the relevant events and the proceedings therefore should have been stayed, b. The summing up was demonstrably one-sided; it amounted to a direction to convict, and in the event the applicant was denied a fair trial, and c. The defence of duress as currently formulated fails adequately to address the circumstances of a violent, coercive and controlling relationship. 21. As to the first ground of appeal, the applicant relied before the trial judge on R v Maxwell [2010] UKSC 48, along with a number of other authorities, to suggest that the prosecution should be stayed as an abuse of process, both because it was impossible to give the accused a fair trial and because this step was necessary to protect the integrity of the criminal justice system. 22. It was submitted that the defendant’s rights had not been protected or respected: she was not advised either as to her right not to incriminate herself by giving false evidence or of her right to seek independent legal advice. Neither the prosecution nor those defending Bishop advised her in this regard, given both sides had their own interests to serve from her evidence, and in those circumstances the trial judge should have warned and advised her. Instead, she was manipulated by the defence into giving the evidence and she was then trapped by the prosecution. She was, at the time, a vulnerable young mother in an abusive relationship with Bishop. It was contended that Bishop’s mother pressured her to change her account; that Bishop’s father once accompanied her to the police station for the same purpose; that she was taken by car to visit Bishop in prison regularly by his mother; that Bishop accused her of being responsible for his situation; and that she was taken to see Bishop’s dishonest solicitor in London. It is alleged that the prosecution knew prior to calling her that she would disavow her statement of 31 October 1986. We note that this latter assertion is somewhat misleading, given, as we have just set out, the applicant’s own account was that she had wanted to tell the truth and decided to lie only once she was in the witness box. However, we accept it was evident that she might renege on the truth when called. 23. The judge ruled that the difficulty with these submissions was that they did not make it unfair to try the applicant; indeed, the majority of the points raised went to the very heart of her defence of duress. There was no basis for concluding that prosecuting the defendant risked damaging the integrity of the criminal justice system, nor was there any unfairness in trying her. The prosecution was of a person who accepted in 2019 that in 1987 she gave false evidence on oath at a murder trial. Whilst the prosecution came a long time after the event, that substantial period should not be viewed in isolation since there were other relevant factors. First, advances in science enabled the prosecution to demonstrate that the sweatshirt belonged to Bishop and clearly linked him to the murders of the two girls; second, the acquittals had been quashed by the Court of Appeal in 2018; and third, Bishop was convicted of those murders later that year. 24. Notwithstanding the above, when performing the balancing exercise referred to by Lord Steyn in the case of R v Latif [1996] 2 Cr App R 92 , namely weighing countervailing considerations of policy and justice, the judge determined that that exercise of judgment came down on the side of permitting the prosecution to continue. Whilst it was accepted that the protection afforded to witnesses and vulnerable people is very different now than in 1987, that change did not make it unfair to try the defendant. Indeed, the judge held that the integrity of the criminal justice system would be damaged by upholding the application and staying the prosecution, rather than the converse. 25. In relation to the submission that the delay had made a fair trial impossible, the judge ruled that simply because there had been a substantial delay did not mean that a fair trial was impossible. There were directions on delay that would be given to the jury and this was not a case where the gap in time had had a material adverse impact upon the availability of relevant evidence. By way of example, this was not a case in which important dates or locations, for example, had become unavailable. As the Crown submitted, there was a significant body of contemporary material available, including social services records, and in one sense the defendant would benefit from the delay due to improved understanding of the consequences of domestic violence and coercive control, as compared to 30 years ago. As to the defence submission that there were limitations on the psychiatric evidence, given the reliance on the applicant’s account as to her circumstances decades earlier, any difficulties in this regard would be dealt with within the trial process by way of conventional directions on delay. 26. The judge concluded, additionally, that the application had proceeded on an erroneous factual basis, namely that all the ingredients were present for a prosecution of the defendant to have been brought far earlier, viz. in the late 1980s or in 1990 after the conviction of Bishop for attempted murder, kidnap and sexual assault of the seven-year-old girl. The judge observed that it was not correct that all the relevant facts that the prosecution relied on were available at the end of 1987. The judge accepted the Crown’s submission that it was not until later scientific advances in DNA occurred that it was possible to establish a secure link between the sweatshirt, Bishop and the murders, thereby providing a realistic prospect for a conviction for perjury. 27. The judge additionally set out that a further reason why any prosecution of the defendant prior to the above would have been impeded was that, before 2018, Bishop’s acquittals in 1987 would have been presumptive as to whether he had or had not murdered the two girls. Prior to those acquittals being quashed, the defendant would have been able to advance the compelling argument that the verdicts of the jury in 1987 indicated that the sweatshirt did not belong to Bishop. That position changed in 2018. The defendant was interviewed in September 2019 and charged in March 2020. That was not an unreasonable delay. In any event, adverse impact due to delay could be accommodated within the trial process by suitable directions to the jury. 28. With all of those conclusions we agree without reservation, as did the single judge. The trial judge directed the jury impeccably as to how they were to approach the issue of delay and there was no particular feature of the evidence or the issues in the case, or a combination thereof, that meant a fair trial was impossible. There is no material support for the broad contention by Mr Henley Q.C. on behalf of the applicant that she was at “an impossible disadvantage (occasioned by the delay), not remotely remedied by any judicial decision, intervention, direction or comment”. To the contrary, the judge’s direction in the Final Directions in Law was a model of its kind, as follows: “Delay 29. The events relating to both of these charges took place almost 34 years ago, in 1987. As you have heard, the two little girls were murdered in October 1986, but Bishop was only convicted of this in November 2018. He was originally acquitted in 1987 and obviously the circumstances in which that occurred are at the heart of this case. 30. There is an undoubted passage of time between the events of 1987 and now. This passage of time is bound to have affected the memories of witnesses. Some witnesses have given evidence by reference to statements made by them at the time in 1986 and 1987, and so in those circumstances therefore delay will have lesser impact. A lengthy delay between the time when an incident is said to have occurred and the time when the complaint is made and the matter comes to trial, is something that you should bear in mind when considering whether the Crown has proved its case or not. Necessarily, the longer the delay the harder it may be for someone to defend themselves because memories will have faded and material that might have been of assistance may have been lost or destroyed. If you find that the delay in the case has placed her at a material disadvantage in meeting the case against her, that is something that you should bear in mind in her favour. 31. Someone describing events long ago will be less able to remember exactly when they happened, the order in which they happened, or the details, than they would if events had occurred more recently. 32. You have to judge the issues in this case on the indictment by reference to the Defendant as she was at the time in 1987, and not by reference to her now and/or how she appears now. A great deal can happen in that period of time, and the person you see in the dock in 2021 is not the same as she would have been in 1987, which is the period of time that the indictment covers. 33. You have also heard from the Defendant that she was raped by Russell Bishop, and this is something that she first mentioned to the psychiatrists in this case. The Crown rely upon this lapse of time as support for the challenge to its truthfulness. In relation to this, you should consider why she said that she had not referred to this earlier. This is dealt with further at paragraph 41 below. If, having looked at all the circumstances, you conclude that what the Defendant has told you is or may be true then you can take this into account as supporting the evidence that she gave in court. If you are sure that this is not true, then this would undermine the evidence that she gave in court. 34. You should take these matters into account when considering whether the Crown have proved, so that you are sure, that she is guilty in respect of each of the two counts on the indictment. […] 41. The Defendant has told you that she was regularly raped by Russell Bishop, and was subject to sexual violence by him. This is challenged by the Crown, who also rely upon the fact that the first time this is recorded is when she was interviewed by the two psychiatrists in this case in 2021. 42. Experience shows that people react differently to serious sexual assault. There is no one classic response. Some may complain immediately whilst others feel shame and embarrassment, and may not mention it for a very long time, if at all. The fact that someone does not mention it at the first opportunity does not mean that it is a false complaint. 43. This is, as with all matters of fact, something for you to decide, if you think it helps you resolve the issues in the case, taking into account all of the circumstances of the case.” 29. The suggestion that the judge in the first trial, Mr Justice Schiemann, should have cautioned the applicant against incriminating herself is unsustainable. Although there was a possibility that she would give evidence supporting Bishop, as we have already rehearsed above, the applicant’s own evidence in the present trial was that she did not know what she was going to say until she was in the witness box and she had wanted to tell the truth. In those circumstances, the suggestion that Schiemann J should have cautioned her before she testified is without proper foundation. Indeed, on Mr Henley’s formulation every witness in a contested criminal trial would have to be given this warning before giving oral testimony, in case it was later established or suspected that they had lied. 30. Although the applicant has suggested that the trial should have been halted because this step was necessary to protect the integrity of the criminal justice system (one of the two limbs of abuse of process), no substantive submissions have been advanced in this regard. 31. As to the second ground of appeal, namely that the summing up was so one-sided that it amounted to a direction to convict and that Jennifer Johnson was denied a fair trial, it is necessary to consider the examples provided by Mr Henley which are said to support these contentions. It is accepted by the applicant that she gave conflicting descriptions in her evidence as to when Bishop first raped her. As summarised in the Grounds of Appeal (we interpolate to note that we do not have a transcript of the applicant’s testimony), in her evidence-in-chief she said this occurred in 1985 when living in bed and breakfast accommodation, whilst in cross-examination she indicated that this was in 1987. It is suggested that the judge placed undue emphasis on this change of evidence on her part. It is necessary to consider exactly what the judge said at this stage of the summing up set, as follows from page 23 H to page 24 D: “The defendant in her evidence told you that she was regularly beaten and raped by Russell Bishop. That he forced her to have anal sex with him. That he tried to strangle her and that she did not know how someone should be treated properly until she’d met her late husband later in the 1990s, which is after Russell Bishop’s later conviction for the attempted murder of the seven-year-old girl. That account of her relationship with Russell Bishop is challenged by the Crown. The defendant gave evidence over three days you may remember, members of the Jury, and you may feel that even making allowance for the passage of time she gave conflicting accounts on different occasions when she was asked about these matters. Whether you feel that or not is entirely a matter for you, they’re matters of evidence as I’ve explained. She said at one point that the rapes started after the babes in the wood case and after she’d had Hayley, which was on boxing day ‘86 as I’ve explained. If that’s right then such behaviour by Russell Bishop didn’t start until after the events identified in the two counts in the indictment, because Russell Bishop was in custody from 3 December 1986 onwards. The degree to which you take that into account when you’re considering the issues is entirely a matter for you.” 32. In submissions criticising the approach of the judge, Mr Henley suggests this was not a fair summary of her evidence and was, instead, “extraordinarily partial”, clearly inviting the jury to disregard her claims of rape as being relevant to the defence of duress or the fear she claimed to be in in 1987. By way of emphasis, it is argued the judge’s approach was “very damaging”. It is suggested that this approach became a pattern as the summing up developed and all the interventions were hostile. In a linked submission it is argued that the sentencing remarks revealed that the judge was biased against the applicant. 33. These criticisms are without foundation. The nature of the relationship between Bishop and the applicant was of fundamental importance in the trial. The prosecution did not accept the applicant’s account and it was entirely appropriate for the judge to point out apparent contradictions in the evidence of the applicant, emphasising to the jury that these were factual decisions which were for them to make and not for him. As the respondent observes, the true effect of this change in account on the applicant’s credibility is simply not confronted by Mr Henley in the Grounds of Appeal. If, as the applicant accepted in cross-examination, any suggestion of rape having taken place was only after Bishop’s release from prison after the murder trial in October 1987, then his alleged abuse of her formed no part of the relevant circumstances leading to the commission of the offences. It was suggested by the Crown that the applicant’s inability to maintain a consistent account as to when she said she had been raped by Bishop significantly undermined her credibility on this issue. It was wholly correct for the judge to remind the jury of this difficulty with her evidence rather than simply ignore it. As to the suggestion that the applicant gave this evidence when she appeared to be tiring, there is no basis for suggesting that the judge did not afford proper breaks in her evidence or that he otherwise did not treat her with sensitivity. It is not suggested that Mr Henley intervened at any stage to suggest the witness was tired or needed greater consideration. 34. We have read the summing up with particular care, given the substantive and essentially generalised criticisms of the judge. In the event, the suggestion that the summation was vitiated by hostile, biased or inappropriate remarks is without any sustainable foundation. Mr Henley sought to address arguments of this kind to the judge, not during breaks in the summing up as it progressed, but compendiously, immediately before the jury retired. He failed then to provide more than slight examples of these suggested objectionable remarks or a failure to achieve appropriate balance. Essentially, it was suggested that the judge could have given greater details on certain issues, for instance that the police had failed adequately to protect the applicant, that Sylvia Bishop had demonstrated aggression to the applicant, that the judge’s precis of the letters was inadequate, and that Dr Bartlett did not know the applicant in 1986 and 1987. These submissions were essentially inaccurate, as the judge pointed out at the time, given he had dealt with all of these issues entirely correctly during the summing up, sometimes on more than one occasion. Similarly, on the present application, sweeping allegations are made as to the judge making “negative comments” which have not been substantiated. 35. The single other suggested example provided to this court by Mr Henley relates to when PC Edwards asked the applicant if she thought Russell Bishop could have committed the murders, and he said that she told him she had said to Sylvia Bishop that Bishop could have done it together with Marion Stevenson (with whom Bishop also had a relationship). That was challenged by the applicant. It was also put to the officer that he had upset the defendant and that he had been persistent in questioning her on a difficult topic. 36. On this issue, the judge observed to the jury: “Now, as I’ve said to you, various matters were put to PC Edwards by Mr Henley about the way he pressed the defendant in asking her questions and including following up her answers when he asked her if she thought that Russell Bishop could have done it. You may think members of the jury, it’s entirely a matter for you, that it’s the duty of a police officer particularly somebody who’s investigating or involved in investigating the murders of two children, to ask difficult questions of people and not necessarily to accept the very first answer that they’re given by the person to whom they’re addressing questions, and at that stage Russell Bishop was a suspect in the murders of those two girls.” 37. Of this, Mr Henley complains that it was a partisan intervention which served no purpose in relation to the real issues in the case and it was designed to support or rescue PC Edwards. There then follows in the Grounds of Appeal an extended criticism that the judge, first, undermined the applicant’s account of her relationship with Bishop and, second, failed at this stage to emphasise that the applicant had been honest about the Pinto sweatshirt, thereby rendering the summing up unbalanced. With respect to Mr Henley, these submissions are entirely baseless. The questioning by PC Edwards concerned whether at that point in time the applicant believed Bishop was culpable and was not concerned with the extent or the nature of her relationship with Bishop or whether she had been honest about the sweatshirt. Indeed, as regards the latter point, the fundamental underpinnings of the trial, accepted by the prosecution and the defence, were that in her first statement she had told the truth. 38. If counsel allege that a judge has made a series of unjustified or prejudicial remarks during the summing up, it is incumbent on the advocate to give precise details as to when this is said to have occurred. It is unacceptable to make unparticularised criticisms, suggesting that the summation was biased, without citing the examples relied on and explaining why it is contended that each individual passage was unfair. 39. As to certain letters Bishop sent the applicant from prison at Lewes, in the Grounds of Appeal, Mr Henley suggests as follows: “There was plenty of evidence of his violence, and there was also the contents of the 1985 prison letters, in which he bragged that ‘I always get what I want’ . In particular, in the letter exhibited at J1-580 Bishop wrote ‘I am going to come up you so many times you won’t have just one baby you [will] have 20. When I fuck you for a long time I do not want you to say that’s enough I will not be happy with you if you do, I will rape you one day when I am out and fuck you by fist….’ This important passage from the 1985 Lewes prison letters was not referred to in the summing up. Indeed His Lordship made no reference to any passages from these letters in the summing up.” 40. This contention is substantively incorrect. The judge set out, inter alia, at page 31 E to page 32 C of the summing up: “Now the letters in relation to Lewes, the ones at tab 12, as I’ve said they were found by police in a handbag. Russell Bishop had been arrested in January 1985 for burglary. Those letters were sent by him while he was in custody following that arrest. You may remember that during the reading of the agreed facts which Mr Lloyd did in terms of the letters, he read out many passages from those letters, but he didn’t read them all out. Some of them are highly sexual and graphic. Not all the passages were actually read out, but all the letters are in your tabs. You’ll remember that Mr Henley read out certain passages to the defendant when she was giving her evidence to you, and some of the passages in those letters are relied upon by the defence as supporting the claims that Russell Bishop was sexually violent to the defendant, that he raped her, that he had anal sex with her without her consent and that he would strangle her. That interpretation of the letters is not accepted by the Crown who point out that in other passages Russell Bishop says to the defendant phrases for example: “Thank you for saying I can fuck your bum”, asking her to tell him if his sex letters turned her on and other references where the entries are, the Crown say, consistent as being part of a consensual sexual relationship between Russell Bishop and the defendant. The Crown also relies upon the fact that the letters were kept and found in a handbag, and as I’ve said they were seized as part of the enquiries or the investigation into Russell Bishop. All of the contents of those letters, at all three of the tabs, are evidence in the case and the prosecution and the defence have agreed that the letters should be in the bundle. Both the prosecution and defence have drawn your attention to different parts of the letters. The weight you give them either as a whole or to any part of them is a matter entirely for you. As with all matters of evidence, what you make of them is completely up to you.” 41. In our judgment, far from the judge having failed in his duty to summarise or read out the evidence in this regard, this was a model way of setting out for the jury material which they had in their bundles, reminding them in outline of the rival positions of the prosecution and the defence. This criticism of the judge is unwarranted. 42. It is argued that the judge in the summing up completely failed to engage with the magnitude of this intimidation and manipulation of a prosecution witness, and how terrified and vulnerable these circumstances must have made her feel. This, again, is a wholly unsupported contention. From pages 58 to 63 of the summing up the judge set out a full and balanced summary of the medical evidence. This included the testimony of Dr Bartlett, the applicant’s general practitioner, who spoke of her depression and her inability to cope. Additionally, Dr Bartlett indicated the applicant had never told him that Bishop subjected her to systematic rape, or that Bishop was obsessed with anal sex, or that Russell Bishop had had other women sleep with them. The doctor said domestic violence was never brought to his attention. The judge additionally summarised the evidence of the two psychiatrists, Drs Cummings and Thakkar, and within the written directions was the following: “We both agree on the historical narrative of Ms Johnson experiencing violence at the hands of Russell Bishop. Ms Johnson has a history of anxiety, depression and, potentially, PTSD. She has periodically been on treatment for such. She also has a history of self-harm. Outside of the account of Ms Johnson, it’s not possible to determine if these diagnoses were operative at the time of the offence for which she is charged. Though battered women syndrome, learned helplessness and coercive control are potential narratives, outside of the account of Ms Johnson the only issue confirmed is violence from Russell Bishop. We believe that there are other potential narratives and invite the jury to consider the wider evidence.” 43. It was agreed that it was difficult to assess what a person was like 35 years earlier and this was something the jury would need to have in mind when considering the issue of delay. It follows that in our judgment, this criticism of the judge is undermined by the full summary the judge provided of the evidence, to which we have just referred, and Mr Henley has failed to suggest what else the judge was supposed to have included in the directions, based on the evidence. 44. It is submitted that the judge made an observation to the jury that amounted to directions, first, to convict and, second, that the defence of duress was nonsense. The passage relied on is as follows from page 38 F to page 39 C of the summing up: “Jennifer Johnson was called by the prosecution as a witness during the ( original ) trial, and she gave evidence on oath on 20 and 23 November 1987, so that was either side of a weekend. She said to you in her evidence she was told just to answer yes or no by Sylvia Bishop. She also explained to you in her evidence that she didn’t know what she was going to do until she went into the witness box, that all his family were in court looking at her, that nobody from her family was there. She said that she was all alone and that, she also said that the police did not protect you in those days. You may wish to consider, members of the jury, and it’s entirely a matter for you, whether there’s any evidence at all about any consideration or attempts by the defendant regarding potential help she could obtain in the situation that she says she found herself in that time or any evasive action or any escape. Alternatives that you may consider were available but it’s entirely a matter for you, are the police, the authorities when she got to the court building or even the judge. The defendant’s case is that she was being threatened that she would be killed or seriously injured immediately or almost immediately afterwards. This was, in 1987, a murder trial. It was actually a double murder trial. You may consider that perhaps so far as the issue of protection is concerned that without the defendant telling anyone of the nature of the threats, or the existence of the threats, who was in a position to help her, it would have been rather difficult to have offered her protection but that is entirely a matter for you. It’s an evidential matter and it’s something that you will, or you may wish to consider.” 45. Once again, the criticism of the judge is without sustainable foundation. This passage from the summing up involved the judge giving a simple rehearsal of one of the critical issues that the jury needed to address when considering the defence of duress. This observation by the judge highlighted the issues they needed to have in mind, applying the Route to Verdict which he had provided to them at an earlier stage for count 1, as follows: “5. Did the Defendant do what she did because she genuinely and reasonably believed that if she did not, she or a member of her immediate family would be killed or seriously injured, immediately or almost immediately? If you are sure that this was not the case, your verdict will be “Guilty”. If you decide this was or may have been the case, then you will go to the question at 6. 6. Before acting as she did, are you sure that she had an opportunity to escape from or avoid the threats without suffering death or serious injury, which a reasonable person in her situation, and sharing such characteristics of hers as you accept, would have taken? If the answer to this is yes, you are sure, your verdict will be “Guilty”. If you are not sure, then you will go to the question at 7. 7. Would a reasonable person, in her situation, believing what she did and sharing such characteristics of hers as you accept, have done what she did? If you are sure that such a reasonable person would not have done, then your verdict on count 1 will be “Guilty”. If you decide that such a reasonable person would or may have done what she did, then your verdict on this count will be “Not Guilty”. 46. And for count 2: “12. Did the Defendant do what she did because she genuinely and reasonably believed that she or a member of her immediate family would be killed or seriously injured, immediately or almost immediately, if she did not? If you are sure that this was not the case, your verdict will be “Guilty”. If you decide this was or may have been the case, then you will go to the question at 13. 13. Before acting as she did, are you sure that she had an opportunity to escape from or avoid the threats without suffering death or serious injury, which a reasonable person in her situation, and sharing such characteristics of hers as you accept, would have taken? If the answer to this is yes, you are sure, your verdict will be “Guilty”. If you are not sure, then you will go to the question at 14. 14. Would a reasonable person, in her situation, believing what she did and sharing such characteristics of hers as you accept, have done what she did? If you are sure that such a reasonable person would not have done what she did, then your verdict on count 2 will be “Guilty”. If you decide that such a reasonable person would or may have done what she did, then your verdict on this count will be “Not Guilty”.” 47. The judge, therefore, in this observation reminded the jury of the critical factual question that they needed to address, and it followed a lengthy summary of the applicant’s evidence regarding the pressure she had come under, for example from page 36 G to page 37 C of the summing up: “The defendant told you she came under pressure from Sylvia Bishop and from Russell Bishop to change her statement. She said in evidence she was taken to the prison five days a week by Sylvia Bishop. She was driven to Her Majesty’s prison in Brixton, she was told the whole time she had to change her statement and Sylvia Bishop also said to her that she, Sylvia, knew that Russell Bishop could not have done the murders. She said that Russell Bishop constantly told her she had to change her statement and also accused her of putting him in there. I’ve already shown you the letters that he was writing to her at about this period of time and the defendant also told you that Russell Bishop told her that the Pinto sweatshirt was linked to the murderer, which is why she had to say it was not his. She said that Russell Bishop threatened to kill her and said he would get her when he got out of prison. She said that she remembered going to Ralph Haeems offices (Bishop’s solicitor), she was taken there directly from a prison visit at Brixton. She said she remembered Hayley being only a few days old, she had to breast feed her. She said she remembered the photos of the Kray twins being on the walls, that Sylvia Bishop was here and that one of Ralph Bishops, I beg your pardon, and that one of Russell Bishop’s brothers was there. She was asked specifically by Ms Morgan about threats. She said they only had to raise their voice. She said Ralph Haeems had been paid to represent Russell Bishop by the News of the World which I know you’ll all remember; it was a Sunday tabloid newspaper which is no longer published. She said Ralph Haeems had represented the Kray twins and had their picture on his wall. She said that there was shouting and that Sylvia Bishop and one of Russell Bishop’s brother was there.” 48. The judge did not direct the jury to convict; to the contrary, he directed them to consider all the evidence and only to convict they were sure the applicant was guilty. 49. The third ground of appeal is extreme in its terms, namely that the defence of duress as currently formulated is not fit to deal with the circumstances of a violent coercive and controlling relationship. No substantive submissions have been advanced in support of this contention, save for the general argument that the defence “fails to take adequate account of the effect of sustained domestic violence, where the victim’s autonomy to act is broken, there is the certainty of future violence, and the possibility of escape or protection does not exist”. As the respondent observes, the judge properly directed the jury as to the law of duress. The legal directions, moreover, were agreed by the parties in advance as properly reflecting the law. There was no suggestion that the judge should direct the jury differently because of the particular circumstances of this case. We stress, therefore, that the legal framework for duress set out in R v Hasan [2005] UKHL 22 was accepted by the prosecution and the defence to be the correct approach for the judge to follow. It was further accepted, consistent with the Court of Appeal’s judgment in R v GAC [2013] EWCA Crim 1472, that Battered Woman’s Syndrome may be a relevant factor to be taken into account when considering whether or not an individual is acting under duress. Contrary to the applicant’s assertions, the trial judge properly identified precisely how the jury was to have regard to the applicant’s case that she had been in a violent, coercive and controlling relationship within the legal framework for the defence of duress. The judge set out as follows in the Final Directions on The Law: “Defence of duress 25. Duress can potentially, in law, be a defence to each of these two counts. The defence of duress can arise where the duress results from threats. 26. The Defendant relies upon this defence. She does not deny that she did what she did in 1987. She says that she was driven to do what she did by threats of violence made against her. Because it is for the Crown to prove the Defendant’s guilt on the two counts she faces, it is for the Crown to prove that the defence of duress does not apply in this case. It is not for the Defendant to prove that it does apply. 27. In this case, the defence of duress would mean that the Defendant was forced or compelled to act against her free will by threats such that the criminal law would, if the defence were made out, excuse her responsibility for her actions at the time. 28. You must first decide – in relation to each count - whether the threats which the Defendant told you about were or may have been made. If you are sure that they were not made, or sure that the Defendant did not reasonably believe them to have been made, then the defence of duress does not arise and your verdict on that count will be “Guilty”. However, if you decide that the threats were made, or may have been made, or that the Defendant may have reasonably believed them to have been made, then go on to consider the following questions. 1. First you must ask whether the Defendant acted as she did because she genuinely and reasonably believed that if she did not do so, she or a member of her immediate family would be killed or seriously injured, either immediately or almost immediately. You must consider this separately in relation to each count. The circumstances are different, and for the first count the evidence is that the statements were made in Russell Bishop’s solicitors’ offices. For the second count the evidence was given in the Crown Court. If you are sure that she did not genuinely and reasonably believe that she or a member of her immediate family would be killed or seriously injured immediately or almost immediately, then the defence of duress cannot apply to that count and your verdict will be 'Guilty'. However, if you decide that this was or may have been her belief you must go on to consider a further question. 2. Before acting as she did, did she have an opportunity to escape from/avoid the threats without death or serious injury, which a reasonable person in her situation would have taken but she did not. Such an escape route from her predicament could have been going to the police after the threats were made. Further and specifically in relation to count 2, other escape routes could have been telling the police when she actually came to Lewes Crown Court before she was called as a witness; or telling other members of the authorities when she was at court; or telling the judge when she was in the witness box in court. If you are sure that there was a course of action she could have taken to avoid the threat she reasonably believed to exist without having to commit the crime, the defence of duress does not apply and your verdict will be 'Guilty'. However, if you decide there was or may have been no opportunity to escape or avoid the threatened action then go on to the next question. 3. You must ask whether a reasonable person, in her situation and believing what she did, would have done what she did. By a reasonable person I mean a sober person of reasonable strength of character sharing her characteristics as at the time of the offences. These characteristics are her age and sex, the fact she had two young children, as well as such features of her relationship with Russell Bishop at or prior to 1987 as you decide were or may have been true (such as violence, sexual violence including rape, and any controlling behaviour), and any psychiatric condition that you decide she was or may have been suffering from. The reasonable person you are considering would share these characteristics. If you are sure that such a reasonable person sharing her characteristics would not have done what she did, the defence of duress does not apply, and your verdict will be 'Guilty'. However, if you decide that a reasonable person would or may have done what she did the defence of duress does apply and your verdict will be 'Not Guilty'.” 50. As the prosecution contend, it is untenable – for self-evident public policy reasons – to suggest that the defence of duress ought to operate without a clear requirement of immediacy or imminency. It was not argued at trial that this requirement should be removed. It is clear from all of the relevant authorities, including Hasan, that immediacy and the inability to take evasive action is a key aspect of the defence. Otherwise, this would risk becoming an open-ended defence, which is difficult or impossible to disprove. The judge – as are we – was bound by authority and a negligible basis has been provided for departing from it save for the general proposition that if the individual believes he or she had no choice, then the defence of duress “simply does not work”. 51. Furthermore, this complaint sits ill with the facts of the present case for a number of reasons. First, the judge summed the case up to the jury, without objection, on the basis that the applicant had said that she had been subjected to threats of death or serious violence that would follow immediately, or almost immediately, after the acts in question, and, as a result, she was entitled to rely on the defence of duress. It was because of those threats that she acted as she did. Accordingly, she was not suggesting that she was only able to advance some other, lesser, or different form of duress that was not catered for in the classic formulation. Second, the applicant asserts that the police did not protect her in 1986/87 or offer her protection, thereby implying she would have accepted assistance. It follows that on her evidence she did not consider she had “no choice” – she would have welcomed and accepted police protection – yet she took no steps to secure that help. Furthermore, as set out in the agreed facts, there had been police involvement in earlier incidents of violence, and advice had been given to her about injunctions which she failed to take up. She was offered alternative housing. At one stage plans were put in place for her to move to a women’s refuge. She declined to take up those offers. Third, right up until the last moment when she was in the witness box in 1987, on her own account she was intending to tell the truth, only changing her mind at the last moment. Even on entering the witness box, she did not consider she was without choice. 52. To summarise, this argument was not raised at trial; it contradicts binding superior appellate authority; and the complaint that if the accused believes he or she had no choice, then the defence of duress “simply does not work” , fails to reflect key ingredients of the applicant’s own evidence, in that she said she did act because she was subject to threats of death or serious violence that would follow immediately, or almost immediately, after the acts in question (to paraphrase, she was “covered” therefore by the defence), and she recognised that she did have a choice of protection by the authorities, one which they never offered and she never sought. 53. For all these reasons, the grounds of appeal against conviction are unarguable and the application for leave to appeal is refused. 54. Turning to the application for leave to appeal sentence it is suggested the judge failed to give adequate consideration, first, to the coercion and intimidation by Bishop and his family, falling short of duress; second, to the age of the applicant at the time of the offence (she was 21 to 22 years old and had spent a year at special school and left school with no qualifications and had been in a relationship with Bishop from the age of 17 and was abused by him); third, to the delay in prosecuting the case (34 years); fourth, to the applicant’s mental disorder as a result of her relationship with Bishop, the abuse she suffered and the realisation of his culpability for the crimes; and fifth, to the steps the applicant has taken to lead a productive life over the past 25 years, including raising four children, being a grandmother to ten and working with disabled children. Finally, it is submitted the sentencing remarks were unreasonable and, in places inaccurate; it is averred they betrayed an unusual level of personal hostility to the applicant. The sentence passed was very close to the maximum on count 2, giving, it is suggested, far too little effect to the mitigating factors. 55. The respondent suggests that the applicant made clear that by the time of the offences alleged in Counts 1 and 2, she knew that Bishop must have been responsible for the murders of the two young girls. She admitted this clearly, if indirectly, by accepting that she knew that the person who wore the Pinto sweatshirt was responsible for the murders and by also accepting that she knew that the person who wore the sweatshirt was Bishop. Her case that “she had no choice” was rejected by the jury. It was entirely open to the judge to sentence her on the basis that she had her own ends to serve by supporting Bishop as she did. As the judge observed, “[...] the prime motivation for your criminal behaviour was that you simply could not face life without him [ ... ] there were elements of infatuation in your relationship with Bishop ”. The judge expressly took into account her background circumstances, including her age, the young children and the incidents of domestic violence. However, based on the medical records, he was entitled to conclude that her mental health issues did not arise until some years later and were linked to other issues in her life. 56. It was not until her interviews in September 2019, once Bishop had been convicted, that she revealed she had lied about the Pinto sweatshirt. The judge afforded little weight to the applicant’s suggestions that she had suffered for many years as a result of Bishop’s crimes given the applicant’s on-going support for him over a long period of time and her failure to admit her lies until well after the convictions of Bishop in 2018. 57. Bishop, to the applicant’s knowledge, had committed terrible crimes and she sought to enable him to escape justice by giving false evidence. The judge was entitled to conclude that she remained a strong supporter of his for many years afterwards. The judge was right to observe that her evidence was important as regards Bishop’s acquittal given that, if she had provided true evidence in 1987 as to the Pinto sweatshirt belonging to Bishop, this would have substantively increased the chances that he would have been convicted at his first trial. As she accepted in cross-examination, Bishop had told her of the significance of the jumper because the person who had worn it murdered the girls. Her crimes, therefore, struck at the heart of the administration of justice in exceptionally serious circumstances. The judge, notwithstanding the significant mitigation as regards the applicant’s life in more recent years, was entitled to reach the conclusion that a substantial custodial sentence was appropriate, indeed was inevitable in this case. He was obliged to reach his own conclusions as to the relevant factual basis for the sentence, consistent with the jury’s verdict. He was well within the proper ambit of his discretion when he made a number of factual findings which were highly critical of the applicant. There was nothing inappropriate in what the judge said during the sentencing remarks. We agree with the single judge that the sentence is not arguably manifestly excessive. This application is also refused.

2022_06_22-5357.xml

refused

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/832/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/832

013e33d93b8e8781068427e350eb37ac5a6a690d84d013754074514009524890

[2006] EWCA Crim 2942

EWCA_Crim_2942

crown_court

No: 200603100/A3-200603479/A3-200603145/A3-200603143/A3-200603142/A3-200603141/A3-200603140/A3-200693139/A3-200603480/A3-200603481/A3 Neutral Citation Number: [2006] EWCA Crim 2942 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 20th September 2006 B E F O R E: LORD JUSTICE MOSES MR JUSTICE LLOYD JONES - - - - - - - - R E G I N A -v- ANNWEN JONES VANESSA LAUREN GONZALES JACQUELINE ANN SHEEDY CHRISTOPHER WARD JONATHAN OPPENHEIM GEORGE EDWARD FENOULHE

No: 200603100/A3-200603479/A3-200603145/A3-200603143/A3-200603142/A3-200603141/A3-200603140/A3-200693139/A3-200603480/A3-200603481/A3 Neutral Citation Number: [2006] EWCA Crim 2942 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 20th September 2006 B E F O R E: LORD JUSTICE MOSES MR JUSTICE LLOYD JONES - - - - - - - - R E G I N A -v- ANNWEN JONES VANESSA LAUREN GONZALES JACQUELINE ANN SHEEDY CHRISTOPHER WARD JONATHAN OPPENHEIM GEORGE EDWARD FENOULHET-WALKER STUART BARNES DAMIEN NIGEL BROWN ALICE ISABELLA HAWKINS THOMAS DALE - - - - - - - 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 M SIKAND appeared on behalf of the APPLICANTS MR R ENGLISH appeared on bhehalf of the APPLICANT DALE MRS M MCLEAN appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: These are applications for leave to appeal in relation to a large number of applicants who, as a result of their demonstration on a railway, in different parts of London, were nearly all of them ordered to serve community sentences of 80 hours unpaid work and also in respect of whom indefinite anti-social behaviour orders were made. These cases therefore raise the issue of the propriety of a significant punishment and also of an anti-social behaviour order in respect of their demonstration against an arms fair. 2. The sentences were passed on two different occasions, following pleas of guilty, either to obstructing an engine or carriage or using a railway contrary to section 36 of the Malicious Damage Act 1861 . It is important, in considering the propriety of the anti-social behaviour orders to bear in mind that the maximum sentence for such an offence is one of 2 years' imprisonment. 3. With the exception of three of these applicants, all of the defendants were of good character; all had done considerable public voluntary service to the community, or alternatively (in the case certainly of one of them) was a student of whom much is still expected. 4. All pleaded guilty before His Honour Judge Pardoe QC at Snaresbrook. 5. The defendants wished to demonstrate against the Biannual Defence Systems and Equipment International Exhibition commonly referred to as an Arms Fair. It was accepted, perhaps somewhat charitably, since disruption of the railways was involved throughout, that their involvement was as a result of not of a plan but uncoordinated acts. 6. They all involved trying to interfere with stationary trains to prevent them moving either by seeking to chain the doors or by climbing on the roof. The first event, concerned Dr Oppenheim who, assisted by a man called Zack, who was cautioned for his role, was lifted onto the roof of the Docklands Light Railway stationary train at Canning Town at about 10.30 am. He was not prepared to move straight off, he is a man of some height so we are told, and waited up there some 50 minutes before what are graphically described as a police rope team, seeking not to lynch him but to persuade him to climb down, eventually persuaded him to do so when he was arrested. 7. The next incident involved only an attempt when a Miss Hawkins at 11.50 am, and Dale, another of the defendants, tried to use a chain and padlock to secure a door on the train so that it could not be moved. 8. Next, Mr Brown, at 12.30 pm, assisted by Ward tried to get onto the roof by being given a leg up at Canning Town railway station. They had engaged in a mock fight to cause distraction before they got there but they could not get on to the top of the train because a number of passengers took, as one would have expected in Canning Town, a poor view of what they were doing and forcibly restrained them. It appeared, and this is relevant to the order that the judge made for an anti-social behaviour order, that some of the passengers set upon them in retaliation for what they had done. 9. At about the same time, at the same railway station, we understand at a different platform, Mr Fenoulhet-Walker climbed onto the roof of a stationary train, refused to come down for about 30 minutes until persuaded to do so by the rope team. 10. At 2.30 pm Mrs Jones and Miss Sheedy, on the same railway, the Docklands Light Railway at Canning Town, tried to climb onto the roof of a stationary train. Miss Jones was trying to do so helped by Miss Sheedy but they did not succeed. 11. Some time later, at 4.30 pm, Barnes of the Royal Albert Docklands Light Railway station managed to climb onto the roof and stayed there for some 20 minutes delaying the train operation. 12. The judge, on the two separate occasions he sentenced them, clearly took a serious view of this matter and took the view that the only sentence commensurate with these offences were the community punishment for 80 hours, in the case of all of them, with the exception of Miss Sheedy who had four recent convictions for public order offences. In her case the judge ordered that she should serve a sentence of 6 months' imprisonment, suspended for 2 years, with a requirement to perform a number of hours of unpaid work, namely 150 hours. 13. The judge said, in relation to these offences, on the first occasion, that there had been considerable disruption to train services. He took into account the effect on the travelling public, on costs and lost revenue to train services. There had been warnings, in announcements over the public address system, and Brown had taken part in a mock fight, followed by a real fight concerning angry passengers. He took the view, on those grounds, that the seriousness of the offences required the orders that he made of 80 hours' community services. 14. He acknowledged the good character of all the defendants, save Annwen Jones and Sheedy, although it subsequently emerged that another of the defendants, Gonzales, had two previous convictions arising out of one incident at the G8 Conference. 15. The first question, therefore, is whether the judge was right to make community orders of unpaid work. In order to assess the propriety of that order, both the seriousness of the offence and the character of these defendants must, it is trite to observe, be considered. We pause to mention that the judge considered this matter globally but, although he does not express it in terms, we are confident that he must have looked in detail at the particularly good reports and character references each of these defendants were able to rely upon, as well as their outstanding work that they did. It is, perhaps, unfortunate he did not deal with all that might be said in their favour in rather greater detail. 16. So far as Dr Oppenheim is concerned, he is 35, and is one of the outstanding Research Fellows in applied maths and theoretical physics in the country. It is difficult to think that any don could have better things said about him than are said in the three character references. He has acknowledged the impropriety of the method he adopted in order to protest against an arms fair. The judge was careful not to make any comment as to the propriety or otherwise of challenging this country's holding of arms fairs and he was right to do so. But the fact that this was a source of legitimate protest was important in relation to the sort of sentence which ought to have been passed. If a criminal offence is committed in the course of a protest, a political protest, that is clearly a relevant factor in relation to the propriety of the sentence. If one needs authority for that proposition, it is to be found in R v Jones & Ors [2006] UKHL 16 , in the remarks of Lord Hoffmann, in his speech at paragraph 89. Of course, they do not excuse the criminal offences committed in this case but they are highly relevant to the appropriate punishment. Although the judge acknowledged that these offences were committed in a demonstration, he seems to have played little heed to the motives with which these offences were committed. 17. We take the view that in relation to Dr Oppenheim it was wrong to make a community order with unpaid work of 80 hours. That sentence was not commensurate with the offence committed by Dr Oppenheim and paid insufficient heed, not only to the motives with which he committed the offence but also to his excellent character. In our judgment, the appropriate sentence was one of a conditional discharge for 12 months. Only by that means could the motives with which the offence was committed and his character be properly reflected. 18. In relation to the next applicant with which we deal, George Fenoulhet-Walker, he had an irrelevant conviction for possession of cannabis. He is 24 but has an outstanding record as a support worker for adults with learning disabilities and for his voluntary work which he performs in the community. 19. It is unnecessary to read all the references that speak so well of him, but a flavour of them can be gained from the helpful report produced by the former principal lecturer in education at Nottingham Trent University, Mr Onion, dated 18th May 2006. He describes this applicant, Fenoulhet-Walker, as working exceptionally hard, undertaking voluntary work, and research as to how universities might support those with learning difficulties. He says this: "Many students feel compassionate towards others but very few translate the compassion into serious extended actions." 20. This applicant has done so. In his case, we too take the view that it was wrong to make a community order with 80 hours unpaid work and that the appropriate sentence in his case, having regard to the motives which he climbed on top of a stationary train and his character, is one of a conditional discharge for 12-months. 21. Stuart Barnes is another applicant who voluntarily works for others at a community centre. He is 29. He has never been in trouble before and, as some earnest of his approach to his responsibilities, has already served 73 hours out of the 80 hours unpaid work. That is truly laudable in the context of a case where he was appealing and where for all he knew the appeal might be allowed. But he did not wait for that, and he has served most of the order. That is powerfully to his credit. But notwithstanding that, we repeat in his case that the order as originally made was not, in our judgment, correct and the proper order in his case was one of a conditional discharge for 12 months. 22. Vanessa Gonzales has been in trouble before. She is only 23. She has two previous convictions but they arise out of one incident at the G8 summit held at Gleneagles. She must learn, obviously, that her peaceful protest must not involve breaches of the law. She apparently was not only convicted of a breach of the peace, but some may think rather excessively also of attempting to pervert the course of justice by initially giving a false name which she subsequently changed. There was clearly an astute prosecuting authority in Scotland. 23. Whatever one thinks about that, despite that one previous occasion, there are powerful things to be said on her behalf, not properly reflected in the order made by the judge. Again, we need only give only an example. When working as a director of the Industrial & Provident Society the assisted in the provision of homeless services to young people in Bristol and South Gloucestershire. She is a model employee, diligent and trustworthy. She left earlier in 2006 to help work voluntarily for indigenous people in Mexico. She has what is described as a high moral code. In her case, too, we take the view that it was wrong to make the order for unpaid work and she should have been conditionally discharged for 12 months, which is the order we make in her case. 24. Christopher Ward, although he has been in trouble a long time ago, his convictions are now spent and he must be dealt with as a man of good character. He is older than many of the others, 35. He attempted to climb onto the roof of a stationary train but did not succeed. Miss Sikand, on behalf of this applicant, as well as the others, submits that attempts should be dealt with less severely than the full offence. We question whether that is the right approach and it is certainly not the basis upon which we allow his appeal as well. After all, his failure was not because he thought better of the idea, but simply because he just did not succeed in what he was trying to do. In his case, having regard to his motives and the excellent character references written on his behalf, we take the view that the appropriate order was one of a conditional discharge. 25. Damien Brown was the person trying to give him a leg up. He is a relief herdsman, works part-time in college and has positively good character references. Again, his attitude is powerfully demonstrated by the fact that he has already served 70 out of the 80 hours of his unpaid work. But we think in his case, too, the appropriate order was one of a conditional discharge for 12 months. 26. Thomas Dale is now an Oxford graduate but his success or otherwise in his finals are clothed, perhaps, in tactful obscurity. Nevertheless much was expected of him by his tutor who gives a powerfully good reference. Of course his future will be greatly damaged if he has a conviction which merited the severe penalty of 80 hours unpaid work by way of community penalty. It should never be forgotten that a community penalty is not a soft option. It originated and still is considered as but one step short of imprisonment and it is a serious penalty that these days, in particular, requires hard and sometimes unpleasant, and certainly boring work. 27. In those circumstances, having regard to the fact that he is the youngest of these applicants, only 21, with what we hope will be a great future before him, we take the view, for the reasons we have given in the case of the other applicants, that it was wrong to order a sentence of 80 hours unpaid work for his attempt which lasted 30 seconds before he was arrested in trying to put a chain round the door of the Docklands Light Railway at Canning Town. He, again, has shown his attitude well by the fact that he has already served a full period of 80 hours. But nevertheless we think it was wrong that his record should be blotted in this way. The appropriate order was of conditional discharge for 12 months. 28. Similarly too the 27-year old Alice Hawkins, with eleven character references, not surprisingly, since she has spent her life as advocacy project leader and doing other work for the community, particularly volunteer work for Child Line and those with learning disabilities. 29. It is difficult to see, when reading the reports about her and how she could have undertaken far more lucrative work, had she not wanted to spend her life helping others, what the point of unpaid work by way of a community penalty was. We take the view, again, in her case, that the appropriate order was of a conditional discharge for 12 months. She has already done 19 hours community service. 30. So has Annwen Jones. She has four previous convictions relating to politically motivated protests. In her case, she has a history of voluntary work in the community but, in her case, we do take the view that the fact that this is the fifth occasion that she has broken the law in pursuit of political protest, justifies the order made in relation to her of 80 hours' community service. In those circumstances, that part of her application is dismissed. It may be noted she too, much to her credit, has already performed the 80 hours of unpaid work. To that extent, her appeal will not be allowed. We have not yet turned to the anti-social behaviour orders. 31. So far as Jacqueline Sheedy, she too has four previous convictions including one under the same Act, namely under section 36 relating to obstructing the railway back in 2004, for which she received 40 hours' community service. 32. We do not think that the suspended prison sentence of 6 months was justified by this offence having regard to the work that she does as a housing support worker, the voluntary work she does, the character reference and the motives which lay behind this offence. We think that an appropriate sentence was one of 80 hours unpaid work by way of community penalty. She has already done 35 hours of unpaid work and that 35 hours should count towards the 80 hours, so effectively she only has 45 hours left to do. To that extent her appeal against the suspended sentence is allowed. 33. We then turn to the anti-social behaviour order. This was passed in what we consider to be unfortunate circumstances. Although we do not have any very clear evidence of what happened, the judge hit upon the idea of making such an order on the day of the first hearing, there having been no prior warning to counsel. That is not to say, that the court is not entitled to make such an order but any court must give counsel, both for the Crown and the defence, proper opportunity to obtain all the relevant authorities before making it and giving them full opportunity to make submissions about the considerable learning there is now on the subject. 34. This does not appear to have happened. The Court was not appraised of the relevant authorities and, in particular, to an authority that may not have been reported but would certainly have been available, R v Dean Boness & Ors [2005] EWCA Crim 2395 , [2006] 1 Cr App R(S) 120. This decision of this Court, 14th October 2005, should have been carefully considered before the judge made the order. Had the judge seen that case, it is beyond doubt he would not have made the order at all. 35. The order he in fact made in relation to all these applicants was: "That the defendant does not in any way whatsoever interfere with, or prevent the operation of any train on the Docklands Light Railway or of any train operating on any platform accessible from a platform on the Docklands Light Railway including but not limited to London Underground trains and London Silver Link trains. This order will continue until further order." 36. The grounds for making such an order are those set out in section 1 C of the Crime and Disorder Act 1998 , as inserted by section 64 of Police Reform Act 2002 and amended by section 86 of the Anti-social Behaviour Act 2003 . Section 1 C(2) of the 1998 provides: " If the court considers-- (a) that the offender has acted, at any time since the commencement date! [1st April 1999] in an anti-social manner, that is to say in a manager that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household himself and. (b) that an order under this section is necessary to protect persons in any place in England and Wales from further such anti-social acts by him. it may make an order which prohibits the offender from doing anything described in the order." 37. The first question, therefore, is whether the judge was entitled to conclude that the criminal activity of these applicants did have the effects identified in section 1 C(2) (a) or that it was more probable than not that they were likely to cause those effects. What the judge said on the 24th May was this: "It is clear from that [that is the attempts to climb on the roof of the train] and other material before me that the trains in that area are particularly vulnerable to frustrated demonstrators demonstrating against this annual arms fair. I repeat my earlier observations as to the effect on the public. It is clear that these offences had a substantial harassing effect on the public to the extent that it led briefly to a breakdown in public order by irate passengers attacking, for instance, Warden Brown on the station platform." 38. When dealing with three of the other applicants on another occasion, on 23rd June, he added to that, saying: "The law has no place for vigilantism. Disruption of train transport in London in these days of high public sensitivity is, in my judgment, very likely indeed to lead to the harassment, alarm and distress of the travelling public." 39. It is important, as authority teaches, that clear findings are made of activity of a manner which has the effects identified in the 1998 Act . Authorities are not needed for that proposition, but can be found particularly in the judgment of this Court in R v W and F [2006] EWCA Crim 686 . Clear conclusions are to be made in relation to findings, both as to the manner of the activity and its effects and in relation to the other limbs that have to be found before an order can be made. 40. In our judgment, they were not in this case sufficiently clear, nor sufficiently set out. The judge had to concern himself with was the manner of the applicant's activity and why it was that he had formed the view either that he was sure it had had the effects which fell within the section, or were likely to. 41. There is a draft sample of the orders to be made, which provide a space for such clear findings to be set out. The judge did not use that sample form. This may have led him into error. 42. For reasons that we will come to in relation to section 1 C(2)(b), it is unnecessary for us to come to any concluded view as to whether the applicant's behaviour in this case was likely to cause harassment, alarm or distress. We merely, at this stage, wish to say this: firstly, that the fact that other passengers, in their frustration, caused a breach of the peace provoked by the behaviour of these applicants could not possibly entitle the judge to reach the conclusion that he did. His reasons given at that first hearing were therefore not permissible reasons to justify a finding under section 1 C(2)(a). They did not relate to the manner of the behaviour of the applicants but rather to the response of the public to that activity. 43. However, the findings that he made on 23rd June might justify a finding within section 1 C(2)(a) of the 1998 Act . 44. To interfere with a train, by either doing something to the doors, or to the roof, in an age when all passengers on public transport might fear for their safety could well fall within the meaning of activity likely to have the identified effects. We reach no concluded view, but we do not for one moment wish to be understood to say that behaviour of this type might not fall within section 1 C(2)(a). 45. But we do wish to draw a distinction between activity likely to cause harassment, alarm or distress, and activity which merely causes frustration, disappointment, anger, or annoyance. That is plainly not what the Crime and Disorder Act 1998 is aimed at. It is aimed at actions likely to cause what might be globally described as "fear for one's own safety"; merely being frustrated at the delay on a train does not come within that meaning, even though in one sense it might be said to cause distress. In relation to that which is required by section 1 C(2)(a), we merely say that the conduct might have fallen within such a subsection, but clear findings with clear reasoning would have to be set out to justify such a conclusion. 46. But when one turns to the second limb of that which is required by the Act , it is plain that the judge fell into error. The judge had to be satisfied as to the necessity of such an order. He sets out no basis for reaching the conclusion that such an order was necessary, nor, having examined the facts was there any basis for so concluding. To start with, as the case of Boness QV (supra) teaches, the purpose of the order is not to punish the offender but to protect persons from further anti-social acts by him (see paragraph 29). 47. There was no evidence before the court by which it could have been satisfied that anti-social acts were likely to have been perpetuated by any of these applicants, save those who had already committed similar acts, namely Gonzales, Jones and Sheedy. None of the others had ever committed such an act before; all of them said they would not again. In those circumstances, there was no basis for saying that it was necessary to protect persons from further anti-social acts from them. 48. But it does not stop there. As the Court made clear in Boness , the purpose of such an order is prevention. Here the applicants had committed criminal offences for which the maximum sanction was one of 2 years' imprisonment. Nothing that the order did would have prevented further offences being committed by these applicants, should they choose to commit them (see paragraph 30 and 35 of Boness ). The paradigm example of the aim which an order is designed to achieve is in relation to control of the movement of persons, or of that which they might carry, to prevent them from committing a further offence. There was no means or opportunity for the police to prevent further offences in the terms in which the order was made. If any of these defendants sought to commit a further offence, then the sanction of the criminal law would be a sufficient deterrent. In those circumstances, the order was merely beating the wind in so far as it sought to prevent future offences; it was clearly inconsistent with that which was set out in Boness in paragraphs 30 and 35. 49. This leads to a further reason as to why the order was wrong in law. The purposes of these orders is to prevent future offending and consequential suffering. If the order was not capable of having that effect, its effect was only to increase the sentence that would be available to a court, should these applicants commit another similar offence. Yet, as this Court made clear in Boness , the order is not to be used merely to increase a sentence of an imprisonment which an offender is liable to receive (see R v Kirby [2005] EWCA Crim 1228 , [2006] 1 Cr App R(S) 151, and paragraph 32 of Boness itself). These orders would have no affect other than merely to increase the available sentence should these applicants be misguided enough to break the law again. 50. Finally, these orders are objectionable because they are not proportionate. There is no evidence, and there was no evidence before the judge, as we understand, that the arms fair was going to be held next time anywhere which would give any point to interfering with the transport identified in the order itself. For all one knows the next arms fair was going to be held in Birmingham, in which case seeking to prevent inference with the Docklands Light Railway, or Silver Link of London Underground would be singularly useless. Moreover, it was made without limit of time, as the Act envisages is possible but would clearly be disproportionate in a case such as this. 51. For all these reasons, no doubt led into error because there was no sufficient research into the relevant law, these orders were wrong and should be quashed. The result is, although these are only applications, that we give leave to appeal in each and every application. In each and every application we allow the appeal. They are all represented and we understand therefore that there is no need to make any special order about them being present and being allowed to consider the matter further. The appeals to the extent that we have given therefore are all allowed. 52. MISS SIKAND: My Lord, I am mindful of the fact that there is statutory regime in relation to conditional discharges and requires an offender to be explained to by the Court the ramifications, although I do note there is authority that says that that job can be given to me, as it were. 53. LORD JUSTICE MOSES: I will give that job to you and to Mr English for Mr Dale. 54. MISS SIKAND: My Lord, the other point is the Registrar granted me legal aid for the purposes of leave alone. 55. LORD JUSTICE MOSES: You can have whatever legal aid that can be properly assessed for the whole hearing. So can Mr English. 56. MISS SIKAND: Just in case there is an applicant -- now, an appellant who wishes to -- I am mindful one applicant, Stuart Barnes, who had indicated to me that he had finished his community penalty and was concerned about the ramifications of conditional discharge. I indicated to the Court I had not been able to explain to him in full what that would mean. 57. LORD JUSTICE MOSES: I am wondering whether it is right now he has done the 80 hours also to impose a conditional discharge. Should they not be absolutely discharged? 58. MR ENGLISH: Can briefly say that is a point that very much occurred to me. 59. LORD JUSTICE MOSES: Otherwise they are doing two different -- because he has now 12 months when he could be brought back to court. 60. MR ENGLISH: My Lord, with respect, as of course your Lordship readily recognise when a sentence is rectified on appeal it will be taken into account if the sentence is being carried. So, for example, a case that received custody it might be dealt with by way of conditional discharge because some months have been served. In my respectful submission in this case, the right remedy is an absolute discharge, in my respectful submission. They have done the 80 hours certainly in the case of Mr Dale. 61. LORD JUSTICE MOSES: Who else? Mr Dale? 62. MISS SIKAND: Not everybody has done the hours. Stuart Barnes has done now 73. Damien Brown 70. Thomas Dale 80. 63. LORD JUSTICE MOSES: This is all a bit academic though. I mean they are not going to interfere with the railways in the next 12 weeks. 64. MISS SIKAND: My Lord, the point -- it may well be academic. For example, if those who are subject to conditional discharge were to be arrested for a further offence and in the course of the 12 months of course the court who has to consider resentencing for the original offence will verify the fact that they have completed or done a large part of the community penalty. 65. LORD JUSTICE MOSES: That is the point. Is there anything else you want to say? 66. MR ENGLISH: Could I just briefly say on that point, in my submission it is relevant for example that Thomas Dale, he has done the whole of the 80 hours. I recall Miss Hawkins has done 19. He has done substantially more. I do respectfully urge upon you an absolute discharge. (Short Adjournment) 67. LORD JUSTICE MOSES: The point has been raised that some of these applicants have either performed all or a substantial part of the community penalty. The question therefore has arisen as to whether it is appropriate to give a conditional discharge for 12 months. We take the view that it is, because if they were to commit a further offence then the Court would be bound to take into account that they have served all or most of the penalty that had originally been imposed. So, if they are foolish enough to break the law again, it will be taken into account. We make no alteration to the orders on the appeal we have already made. 68. MISS SIKAND: Just to clarify that the 12 months begins today. 69. LORD JUSTICE MOSES: No, it begins-- 70. MISS SIKAND: At the time-- 71. LORD JUSTICE MOSES: You will have to look up the law on that but since I am not paid to give advice. 72. MISS SIKAND: I will tell the way in which-- 73. LORD JUSTICE MOSES: I should have thought it was from the time of the original sentence. 74. MISS SIKAND: It is from the date of the order, the order being the order of the court. 75. LORD JUSTICE MOSES: Then it is from today. They better behave themselves for another 12 months.

2006_09_20-922.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2942/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2942

11b8b153082625edf82f0f99cd2e8573e894166230cc344c45bae2cf3bfe3ace

[2011] EWCA Crim 3138

EWCA_Crim_3138

crown_court

Neutral Citation Number: [2011] EWCA Crim 3138 Case No: 201101589/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 1st December 2011 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE WALKER RECORDER OF NORWICH (His Honour Judge Peter Jacobs) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PHILIP ROY LOUIS DOWTY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph

Neutral Citation Number: [2011] EWCA Crim 3138 Case No: 201101589/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 1st December 2011 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE WALKER RECORDER OF NORWICH (His Honour Judge Peter Jacobs) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PHILIP ROY LOUIS DOWTY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss L Maroof appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE RAFFERTY: On 23rd November 2010 in the Crown Court sitting at Chelmsford the applicant, 28, pleaded guilty to making indecent photographs of children and on 21st February, on rearraignment, to meeting a child following sexual grooming. On 24th March he was sentenced thus: for meeting a child following sexual grooming, 18 months' imprisonment; for two counts of making indecent photographs, 4 months' imprisonment on each concurrent with each other but consecutive to that on the grooming count, the total therefore 22 months. Consequential orders were made. After refusal he renews his application for leave to appeal against conviction. 2. During the school summer holidays of 2009 the complainant, born on 26th December 1995, so 13, began to communicate with the applicant on a social networking site, Netlog. Her profile declared her to be 13, his declared him to be 26. They exchanged email addresses and shifted their communication method to MSN, the messenger service. They exchanged mobile telephone numbers and began over the telephone to speak. A meeting was arranged, the Crown alleged instigated by the applicant, and on 25th July 2009, he, from Bedfordshire, went to near her home in Essex, where they met with two of her friends. The quartet walked to a nearby park. The two friends then ran away and the applicant stroked the complainant's inner thigh and touched her knee (counts 1 and 2). Her friends came back with their father, who warned him off. There was some delay in her telling her parents and reporting the matter to the police so the applicant was not until 19th November 2009 arrested. 3. His laptop and a memory card were analysed and disclosed 1178 indecent images of children, 1772 at level 1, three at level 2, three at level 4, and 97 indecent images 80 at level 1, three at level 2, seven at level 3 and seven at level 4 on the card. The Crown's case was that these children were of much the same age as the complainant. 4. Interviewed, he said he did not use Netlog only Facebook and MSN. He had spoken to the complainant after she had initiated contact. He remembered little of her. He thought she was 16 but they had never discussed her age. He did, when he met her, find her attractive but thought of her as a friend. She was quite desperate and pestered to meet him. They had not discussed anything of a sexual nature. Once they met he realised she was under 16 and was uncomfortable. He went to the park so that he could let her down gently and he put his hand on her leg only to console her. He accepted that he had used Netlog and could not explain his earlier lie. His motive for meeting the complainant was not sexual. His computer was not used by anyone else but he denied that it held indecent images. 5. After analysis of his laptop and card, he attended the police station and was told of the discovery of the images. He was re-interviewed on that topic and made no comment. 6. There was, before an experienced tribunal, an application to stay the proceedings as an abuse of process, on the basis that the Crown had initially undertaken that were a guilty plea entered to counts 3 and 4, counts 1 and 2 would be withdrawn. The Crown had subsequently changed its mind, that was presented as it reneging on its promise. 7. The history bears some examination. Charged on 15th April 2010 with the four counts, on 30th June 2010 the applicant made his first appearance at the Magistrates' Court. Jurisdiction was declined and a date fixed for committal. 8. On 18th August 2010 a Crown prosecutor, Mr O'Toole, telephoned the applicant's solicitors and explained that were there a plea to counts 3 and 4 the Crown would not proceed on counts 1 and 2. The applicant's solicitors accepted that proposal and on 20th August 2010 Mr O'Toole put in writing: "once your client has entered pleas of guilty at the Magistrates' Court, we can confirm that we will withdraw the remaining charges". 9. Listed on 31st August 2010 for committal, the CPS had not prepared a bundle, anticipating that the matter would be dealt with as planned. However, the legal adviser to the justices explained to parties that, in his professional opinion, the court was powerless to allow a change of plea. Mode of trial had been decided, plea before venue indicated. Matters were adjourned to 7th September. 10. A different CPS advocate, a Mr Pearson, considered that the magistrates did have the power to entertain the application for change of plea. 11. On 7th September he sought to persuade a different legal adviser of his view. He failed. 12. As a consequence the matter was committed to the Crown Court, where the expectation was that the applicant would plead guilty to counts 3 and 4 and no evidence would be offered on counts 1 and 2. On 5th October his solicitors wrote to the court asking for an early listing with that in mind. On 11th October the Crown Prosecution Service telephoned his solicitors to say that a senior Crown advocate, Mr Jackson, had read the papers and that the Crown would be proceeding to a contested trial on all four counts. As a consequence the case was listed "for mention" and an abuse of process application. On 11th November the defence told the court that it would not pursue its abuse of process application and on 30th the applicant pleaded not guilty to counts 1 and 2 and guilty to counts 3 and 4 at a plea and case management hearing. The balance of the indictment set for trial was put into the warned list for 21st February 2011 but on 30th January 2011, counsel, having reconsidered, lodged a skeleton argument supporting an abuse of process application which was made on 21st February. 13. The judge ruled that the law was well established and authorities considered including R v Abu Hamza [2007] 1 Cr App R 27 . Applications based on a promise not to prosecute upon which there was then a reneging divided into two: where the defendant would not receive a fair trial and where it would be unfair to try him. The case before him was in the latter category, as the applicant could not claim to be prejudiced by the going back on the initial promise because, when he entered his guilty pleas on 30th November he knew of the Crown's intention to proceed on all four counts. He knew too that his own counsel did not intend to pursue a stay. 14. It was plain from the consideration of authorities that the absence of detriment to him would not always be fatal to an application to stay: R v Bloomfield [1997] 1 Cr App R 135 and R v Smith [2010] EWHC 3593. The test was set out in Hunter v Chief Constable West Midlands Police [1982] AC 529 ; whilst the Crown's conduct had disappointed the applicant, it had not made it unfair to try him. The judge thus asked himself whether the Crown's conduct would bring the administration of justice into disrepute in the eyes of right-thinking people as posed in Hunter . On the face of it he accepted that it would. The promise could not be plainer: it stood for 2 months and was twice communicated to the magistrates' legal adviser. However, addressing the impact upon the notional right-thinking person, the judge would assume that such a person was fully acquainted with the Hunter landscape, the most important fact emerging from which was why the Crown had changed its position. 15. By contrast with this case, in Bloomfield and in Smith , the Crown had been unable to answer that question. Here, however, counsel who appeared finally for the Crown, said that the evidence in counts 1 and 2 made the original decision not to proceed manifestly wrong. The evidence was very strong. The judge agreed, especially in relation to count 1, where, as he put it, most of the alleged criminality resided. Though the court had not heard from the original decision maker, Mr O'Toole, it was difficult to see how his proposal could be justified. Counsel for the Crown had submitted that if the O'Toole course of action had stood, most right- thinking people would see it as an affront to justice. The court agreed. It was referred to the Code for Crown Prosecutors 2010 (paragraph 12), which indicated that a decision not to prosecute could be overturned particularly were the case serious. One reason for so doing was to maintain confidence in the Criminal Justice System. That code was an echo of comment in Bloomfield . True it was that the court had not been told the genesis of O'Toole's decision but that was not fatal to the court's reasoning. 16. In grounds of appeal composed and orally developed today by Miss Maroof, the complaint is that the conviction is unsafe and that the judge fell into error in concluding that the Crown's conduct did not amount to an abuse of process. 17. She has addressed us on the basis that, accepting their is a very wise area of discretion, she can only succeed if she can establish that the decision the judge made was irrational. 18. Refusing leave the single judge said: "The judge's very clear ruling shows that he applied the correct legal principles and took into account all relevant factors. He concluded that the original decision by the CPS lawyer not to proceed on counts 1 & 2 was manifestly wrong. Although your barrister criticises that conclusion, it was one which he was entitled to reach. Indeed, I would add that it was the right conclusion, for the reasons he gave. The judge then had to make a judgment based on his assessment of the competing considerations which he identified. Again, his conclusion was one which he was entitled to reach...in my view, the right one. In my judgment there is no basis on which it could be argued that the judge's decision not to stay the proceedings was wrong." 19. Grateful as we are to Miss Maroof for her energetic submissions, this application is rejected - we agree entirely with the single judge.

2011_12_01-2878.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/3138/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/3138

8aeb78d1d5594c904f6a529497bdb13cba646ed8e2f92c961da6ee54762593b0

[2019] EWCA Crim 1577

EWCA_Crim_1577

crown_court

Neutral Citation Number: [2019] EWCA Crim 1577 No: 201902669/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday 13 September 2019 B e f o r e : LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE MARTIN SPENCER R E G I N A v EMERSON CLARKE Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) T

Neutral Citation Number: [2019] EWCA Crim 1577 No: 201902669/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday 13 September 2019 B e f o r e : LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE MARTIN SPENCER R E G I N A v EMERSON CLARKE Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: 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. Non-Counsel Application J U D G M E N T (Approved) MR JUSTICE MARTIN SPENCER: 1. On 3 November 2017 in the Crown Court at Newport, the applicant pleaded guilty to an offence of conspiracy to supply class A controlled drugs and was sentenced on 19 January 2018 by His Honour Judge Jenkins to 57 months' detention in a young offender institution. Prior to sentence the applicant had spent 155 days on qualifying curfew. It is common ground that this entitled him to credit of 78 days in respect of the time to be served in custody. 2. Pursuant to section 240A of the Criminal Justice Act 2003, the court must direct that the period of credit is to count as time served as part of the sentence. However, for reasons which are not clear to us it did not do so and credit for time served formed no part of the order made by the court. 3. When this omission came to the attention of those representing the applicant, they made valiant attempts to pursue the matter administratively so as to save time and costs, but to no avail, and a notice of appeal was issued on 12 July 2019. Unfortunately, this is now some 19 months out of time and an application for an extension of time and for leave to appeal has been referred directly to the full court by the Registrar. There is a statement from the applicant's solicitor Mr Gareth Williams of Driscoll Young Solicitors explaining the reasons for the delay. 4. It is quite clear to us that it is in the interests of justice that the extension of time sought should be granted and we so grant that extension. Furthermore, we allow the appeal and make an order pursuant to section 240A of the 2003 Act that a period of credit of 78 days shall count as time served as part of the sentence imposed. We do not interfere with any other part of the sentence and the appeal is thus allowed to this limited extent. 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_09_13-4709.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1577/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1577

ca3a211b8fc649b81150738906350a2309000692efd9fd0593fa84580493414a

[2004] EWCA Crim 2099

EWCA_Crim_2099

crown_court

No: 200401993 A2 Neutral Citation Number: [2004] EWCA Crim 2099 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 22nd July 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE NELSON MR JUSTICE MCCOMBE - - - - - - - R E G I N A -v- DANIEL LEE ROGERSON - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 14

No: 200401993 A2 Neutral Citation Number: [2004] EWCA Crim 2099 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 22nd July 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE NELSON MR JUSTICE MCCOMBE - - - - - - - R E G I N A -v- DANIEL LEE ROGERSON - - - - - - - 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 K THOMAS appeared on behalf of the APPELLANT MISS J TAYLOR appeared on behalf of the CROWN - - - - - - - J U D G M E N T Thursday, 22nd July 2004 1. LORD JUSTICE ROSE: On 9th October 2003, at Lancaster Magistrates' Court, this appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 and also under section 6 of the same Act in relation to certain motoring offences. 2. On 24th February 2004, at Preston Crown Court, the appellant pleaded guilty before Morland J to an offence of manslaughter in relation to the motiveless killing of an elderly man in his own garden. In relation to that offence, the judge made a hospital order under section 37 of the Mental Health Act 1983 , together with a restriction order, unlimited in time, under section 41 of the same Act. 3. The other offences in relation to which the appellant had been committed to the Crown Court by the magistrates for sentence were of dangerous driving, driving with excess alcohol and failing to stop after an accident. 4. In relation to dangerous driving, the learned judge passed a sentence of 21 months' detention in a young offender institution. In relation to driving with excess alcohol, he passed a concurrent sentence of five months' detention in a young offender institution. In relation to failing to stop after an accident, he imposed no separate penalty. The learned judge also, in relation to the driving offences, disqualified the appellant from driving for a period of five years, and further ordered that, before he drove again, he undertake a driving test. On 19th March the last of those orders was amended so that the appellant should take an extended driving test. 5. He appeals against sentence by leave of the single judge. 6. It is unnecessary to rehearse the facts in relation to any of these offences. The reason for the appeal is this. Although it is conceded that it was lawfully open to the learned judge to pass, as he did, sentences of detention on the same occasion that he made the hospital order to which we have referred, it is a matter of obvious impracticability for an order made under the Mental Health Act and a sentence of custody to be simultaneously carried out. A sentence of custody takes effect from the day on which it is passed, and that clearly, in practical terms, was inconsistent with the terms of the order that the defendant should be transferred to a mental hospital forthwith. 7. So, despite the lawfulness of the sentences which were passed, this court has no doubt that it was, in practical terms, an inappropriate course for the judge to pass the sentence of detention which he did. Accordingly, the sentences of 21 months and 5 months' detention are quashed and no separate penalty is imposed in relation to the offences of dangerous driving and driving with excess alcohol, save that the orders made by the learned judge in relation to disqualification and for an extended driving test will remain. To that extent this appeal is allowed. 8. MR THOMAS: My Lord, I am expressly asked to mention the question of defence recovery costs. 9. LORD JUSTICE ROSE: Who are you hoping to recover them from, Mr Thomas? 10. MR THOMAS: I am not, my Lord, but the Registrar sent a direction to that effect to chambers. I cannot see that it can possibly have any effect at all because it cannot be recovered from -- 11. LORD JUSTICE ROSE: Had you not mentioned it, Mr Thomas, we had no intention of making a recovery of defence costs order, and, despite the fact you have mentioned it, we still do not make any such order. 12. MR THOMAS: I am grateful my Lord. I had to do it, I am sorry.

2004_07_22-299.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2099/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2099

86377ec36d62e30a47e781590ce6c6c7da276928fe1e2a149d77957568b57bb3

[2019] EWCA Crim 258

EWCA_Crim_258

crown_court

Neutral Citation Number: [2019] EWCA Crim 258 No: 201805244/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 5 February 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE MARTIN SPENCER HIS HONOUR JUDGE WALL QC (Sitting as a Judge of the CACD) R E G I N A v JASON WILKINSON 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

Neutral Citation Number: [2019] EWCA Crim 258 No: 201805244/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 5 February 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE MARTIN SPENCER HIS HONOUR JUDGE WALL QC (Sitting as a Judge of the CACD) R E G I N A v JASON WILKINSON 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) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr S Smith appeared on behalf of the Appellant J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: On 4 October 2018 this appellant pleaded guilty, before a magistrates' court, to offences of dangerous driving, contrary to section 2 of the Road Traffic Act 1988 , using a motor vehicle on the road without third party insurance, contrary to section 143 of that Act and driving otherwise than in accordance with a licence, contrary to section 87 of the Act. 2. He was committed for sentence to the Crown Court at Basildon, where on 22 November 2018 he was sentenced by a Recorder as follows. For the offence of dangerous driving, 10 months' imprisonment and disqualified from driving for 4 years and 5 months and until an extended driving test is passed. For each of the other two offences he was fined £100 and his driving licence was appropriately endorsed. He was also ordered to pay the victim surcharge. 3. He now appeals against his sentence by leave of the single judge. 4. The offences were committed on 31 August 2018. Just after midnight the appellant, driving a Volkswagen car and with one passenger, attracted the attention of the police by going the wrong way round a roundabout. The police officer began to follow the appellant with his blue flashing lights illuminated. The appellant failed to stop. He was pursued for a period of between 15 and 30 minutes, during which time the appellant drove at very high speed and dangerously. He was estimated as driving at about 115 miles per hour at a point where the speed limit was 70 miles per hour, and estimated at driving at over 70 miles per hour in a 30 mile per hour zone. He overtook two other vehicles at speed, he travelled the wrong way around further roundabouts and ultimately he steered suddenly to his offside and mounted the pavement, bursting a tyre on the car. Even then the appellant sought to escape. He ran off and was caught after a foot chase. 5. The appellant is now 28. At the time of the offences he held a provisional driving licence but had never held a full driving licence and he was, of course, uninsured. He had been convicted of a total of 10 previous offences as a teenager and young man and had served custodial sentences for offences of burglary and theft and of supplying Class A controlled drugs. He did not however have any previous conviction for any motoring offence. 6. There is no Definitive Sentencing Guideline for offences of dangerous driving sentenced in the Crown Court. At the sentencing hearing the Recorder was referred by the prosecution advocate to the Magistrates' Courts Sentencing Guidelines in relation to each of the three offences. The prosecuting advocate also invited the court's attention to two previous decisions of this court in which, it was suggested, there were factual similarities with the present case. They were the decisions in R v Kilara [2012] EWCA Crim 110 and R v Murray [2014] EWCA Crim 886 . 7. An oral report was helpfully given to the Recorder by a probation officer. This indicated that, after being released from a prison in Merseyside in 2012, the appellant had moved to Essex with the specific purpose of removing himself from previous negative influences and improving his life-style. He had obtained employment which he had maintained for some 3 years. He had become involved in a relationship with a woman but that had ended in separation a few months before the present offences. The appellant himself had reported to the probation officer that he had previously been diagnosed as suffering from a personality disorder, paranoia and borderline ADHD, though no formal confirmation was available of that diagnosis. The appellant had recently returned to his native Wales. As to the offence, the appellant had told the probation officer that he had stupidly agreed to a request from a friend to collect him and give him a lift. He had borrowed the car from another friend for that purpose. The appellant had expressed his bitter regret and his genuine remorse for what he did and was assessed by the probation officer as being genuinely grateful that no one had been injured. He told the probation officer that when he saw the police officers he panicked and felt he had to get away. He was at the time of the sentencing hearing in part-time work with the prospect of full-time work if he remained at liberty. 8. On the appellant's behalf Mr Smith - then, as now, appearing for him - advanced a number of points in mitigation. He put forward, on the appellant's behalf, an account of events similar to that which the appellant had given to the probation officer. Mr Smith pointed out that in contrast to each of the two cases which had been mentioned by the prosecution, this dangerous driving occurred after midnight, when traffic appears to have been very light, and that no other road users were in fact caused to take evasive action. Recognising that that was largely a matter of good fortune, Mr Smith submitted that it was nonetheless a relevant consideration. He pointed out also that bad though it was, this offence of dangerous driving lacked some of the aggravating features found in other cases. It was not, for example, a case of a driver who was intoxicated with alcohol or drugs. No damage was caused to any vehicle other than that which the appellant himself was driving and the appellant, as we have said, had no previous convictions for any motoring offence. Mr Smith's submission was that any custodial sentence could properly and should be suspended. 9. In his sentencing remarks the Recorder referred to the appellant having embarked on a prolonged course of dangerous driving "which can only be described as being of the very worst kind". The Recorder noted that the appellant had gone the wrong way round more than one roundabout and had undertaken a number of dangerous overtaking manoeuvres. It was very lucky indeed that no one had been seriously injured or worse. Summarising the evidence as to speed the Recorder observed that this was "grossly excessive speed and self-evidently dangerous driving of the worst kind". He added that the offending was significantly aggravated by the fact that the appellant had neither a full driving licence nor insurance. He concluded that such dangerous driving, "which I consider to be at the very highest end of the spectrum, coupled with the aggravating features" meant that only an immediate custodial sentence could be justified. He referred to the two cases to which the advocates had referred but noted that all sentencing decisions are fact specific. He took a notional sentence after trial of 15 months' imprisonment and, giving full credit for pleas, reduced that to 10 months' imprisonment. The Recorder then imposed the period of disqualification of 4 years. After a reminder from the court clerk, and some rather inconclusive discussion with the advocates, he was reminded to extend that discretionary period of disqualification by a further 5 months to take account of the period of time when the appellant would be in custody. 10. Mr Smith today advances three grounds of appeal. They are, though not taken in this order, as follows. First, that the sentence for dangerous driving was manifestly excessive: it should have been significantly shorter and should have been suspended. Secondly, the period of discretionary disqualification was too long. Thirdly, the Recorder erred in principle in both treating the two lesser offences as aggravating features of the dangerous driving and also imposing significant fines for them. We are grateful to Mr Smith for the clarity with which he has made his submissions. They were admirably focused and notably realistic. 11. We accept that there are certain features of the factual circumstances of both Kilara and Murray which could be said to be similar to some of the features of the present case. But inevitably the overall circumstances of the cases differ, as the Recorder rightly recognised and as Mr Smith rightly accepts. We therefore do not think that it assists this court to seek to engage in a detailed analysis of the fact specific decisions in other cases. It is necessary instead to focus upon the important features of the present case which, in our judgment, are as follows. 12. First, we view this as a bad case of dangerous driving, involving prolonged driving at very high speeds, including travelling the wrong way round a number of roundabouts and overtaking at high speed and ending in the appellant mounting the pavement. Secondly, the fact that the offence occurred after midnight and at a time when traffic was light, meant that there were fewer other road users than there would have been at other times of the day. It certainly did not however exclude the obvious risk of injury to others. Thirdly, the explanation advanced by the appellant of panicking when he realised the police car was behind him has to be set in its context of the police only starting to follow the appellant's vehicle because he was driving dangerously in the first place. Fourthly, the Recorder was correct to regard the fact that the appellant had no full driving licence and no insurance as serious aggravating features. Fifthly, and as against those matters, it was necessary also for the Recorder to take into account that no one was in fact injured, that the appellant has no previous convictions for similar types of offending and that he has clearly made genuine efforts both recently and some years ago to rise above previous offending and to lead a law abiding life. He was correctly given full credit for his guilty pleas. 13. Given that the maximum sentence for the offence of dangerous driving is one of 2 years' imprisonment, there is a comparatively broad band of conduct which represents the most serious offending within the ambit of that offence and which therefore justifies a sentence, after trial, at or near the statutory maximum. Bad though it is, this case does not fall into that broad band. With respect to the Recorder, we do not think he was justified in describing it as dangerous driving "of the very worst kind". However, although the Recorder expressed himself in those terms, he did not in fact take a sentence after trial which was at or near the maximum. The sentence of 15 months' imprisonment, before giving appropriate credit for the guilty plea was a stiff one but, in our judgment, it was not one that was manifestly excessive in length. Moreover, we are not persuaded by Mr Smith's submissions that the mitigation available to the applicant was such that the Recorder was wrong in principle when he concluded that the custodial sentence must take effect immediately. In particular, by reference to the Sentencing Council's Definitive Guideline on Imposition, it seems to us that the Recorder was fully entitled to regard this as a case in which "appropriate punishment can only be achieved by immediate custody." 14. We are therefore not persuaded that the sentence of 10 months immediate imprisonment was either wrong in principle or manifestly excessive. We do however see greater force in the other grounds of appeal advanced by Mr Smith. We bear in mind that the appellant is still a young man. He has no previous convictions for driving offences and no record of bad driving. He has shown himself willing and able to work hard in order to obtain and keep employment. He will in any event be required to take and pass a demanding driving test before he can drive lawfully in the future. In those circumstances, we accept that the discretionary period of disqualification was significantly longer than was necessary and appropriate. We also accept that the imposition of fines which were more than nominal was inappropriate in relation to the two offences to which weight had already been given when treating them as aggravating features of the dangerous driving. 15. In the result, we allow the appeal to the following limited extent. We quash the period of disqualification imposed below and substitute for it a disqualification of 2 years 5 months, comprising a discretionary period of 2 years and an extension period, pursuant to section 35 of the Road Traffic Offenders Act 1988 , of 5 months. That reduced period of disqualification will run as before from 4 October 2018, and as before the appellant will be required to take and pass an extended driving test. We also quash the fines of £100 imposed below for the offences of driving with no insurance and driving without a valid licence. We impose no separate penalty for those offences save that the appellant's driving licence must be endorsed in each case. 16. To that extent the appeal succeeds but the prison sentence remains unaltered. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2019_02_05-4493.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/258/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/258

9a4bb7312dcb473da06ea982bea3db2929fe7b1bb9ad9e90d7cbfefe71777be9

[2006] EWCA Crim 1842

EWCA_Crim_1842

crown_court

No: 2006/2155/A9 Neutral Citation Number: [2006] EWCA Crim 1842 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 12 July 2006 B E F O R E: LORD JUSTICE GAGE MR JUSTICE BEAN HIS HONOUR JUDGE GOLDSACK (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- SHAUN PETER SANDERS - - - - - - - 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 7

No: 2006/2155/A9 Neutral Citation Number: [2006] EWCA Crim 1842 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 12 July 2006 B E F O R E: LORD JUSTICE GAGE MR JUSTICE BEAN HIS HONOUR JUDGE GOLDSACK (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- SHAUN PETER SANDERS - - - - - - - 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 K GLEDHILL appeared on behalf of the APPELLANT MR M AINSWORTH appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE GAGE: This applicant (as he still is), Shaun Peter Sanders, is now aged 27. On 4th May 2004 at the Burnley Crown Court on an indictment containing six counts, on rearraignment he pleaded to count 3, wounding with intent to cause grievous bodily harm, and guilty to count 6, a count of affray. On 25th May 2004 he was sentenced in respect of count 3 to an automatic sentence of life imprisonment pursuant to section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 for a second serious offence. The minimum term was set at three years and 70 days. He was sentenced to 16 months' imprisonment concurrent on count 6. 2. The short point on this appeal is that the court lacked jurisdiction to pass an automatic life sentence. Later in this judgment we shall explain why that is alleged to be so. 3. So far as this matter is concerned, it raises an important point of law. The application for leave to appeal is a long way out of time. That is explained by the fact that the point which is raised on the appeal was not raised by counsel who appeared for the appellant at sentence and is now raised by fresh counsel. It is, as we have said, an important point and in the circumstances we think it right to grant an extension of time and, further, to grant leave. 4. The facts are as follows. So far as the count of affray (count 6) is concerned, on 19th July 2003 the complainant in respect of count 3, Clinton Cavaney, went out for an evening in Burnley with his girlfriend and some friends. At about 11.15 pm in a nightclub in Burnley Town Centre, he and his girlfriend came across the applicant. Cavaney and his girlfriend got into an argument with the appellant about the care of Cavaney and his girlfriend's son. Cavaney's girlfriend threw a drink over the appellant. The appellant was ejected from the nightclub. He waited outside for the complainant and his girlfriend. When they came out he began goading Cavaney. One of Cavaney's friends (the complainant in count 6) tried to intervene and calm things down. The appellant punched that man in the face causing him to fall to the ground. There was then some further shouting and a confrontation between the appellant and the others. The appellant left the scene. The complainant sustained cuts and bruises and damage to the iris of his eye. 5. The appellant was arrested on 28th July 2003. At interview he made no comment. He was charged and bailed. The case was due to be heard on 14th November 2003. Cavaney was due to give evidence at that hearing. 6. The facts so far as count 3 (wounding with intent) are these. Just before 9 o'clock on the evening of 3rd November 2003, the appellant burst through the front door of Cavaney and his girlfriend's home address. The appellant was carrying a large knife or machete and wearing a Balaclava helmet. Cavaney fell to the floor as he tried to run out of the house. The appellant repeatedly struck him with the knife in a downward motion. Cavaney tried to shield the blows with his arms and legs. The appellant ran off and Cavaney's girlfriend summonsed some assistance. Cavaney sustained lacerations to his lower left leg and to his left thigh. He also had lacerations to his lower right leg and a laceration to his right forearm. Further, he had a fractured toe. 7. The appellant was arrested on the following day. Again at interview he made no comment. 8. There were before the court victim impact statements. Cavaney said that he felt uncomfortable going out. He had recurring nightmares about the attack and had moments of anxiety. His girlfriend said that their relationship had suffered. They both had begun drinking heavily. She became depressed. It impacted on her working life and University course. 9. The complainant in respect of the count 3 injuries said that they caused him to take time off work. His eye had been permanently damaged and he was having ongoing treatment for it. He said he felt worried about going out and had difficulty sleeping. 10. The appellant had four previous convictions. In February 1998 for an affray he was fined and in December 1998 at a Court Martial in Germany he was sentenced to 20 months' detention in a young offender institution for an offence of wounding with intent to cause grievous bodily harm committed whilst he was a serving member of the armed forces in Germany. In the year 2000 he was fined for criminal damage and in 2001 he was sentenced to two years for wounding. 11. It is in respect of the offence convicted at the Court Martial in Germany that the qualifying offence arose and caused the judge to pass a mandatory life sentence. In his sentencing remarks the judge said (page 2 letter C): "Looking at the offence which was, if I can describe it as such, the qualifying offence, that which was subject to a conviction on 14th December 1998, and when I look also at the subsequent offence recorded on 9th March 2001 they were both offences of extreme personal violence, violence involving the use of a weapon. As it happened it was a glass on each of those two occasions. In the period from early 1998 until your arrest in November of 2003, your record comprised entirely of offences of serious violence to the person, serious public disorder matters and one offence of damaging property. There is, in my judgment, nothing in the facts, either of the present case, or the conviction, the court martial, in December of 1998 which could be described as 'an exceptional circumstance' which would justify me in departing from the mandatory sentence of life imprisonment." On page 4B he said: "In my judgment, subject to the totality principle, the right order to have made, had you been convicted after a trial by a jury, would have been to impose consecutive sentences which would have been a total of 10 years. As to that, that would have been made up of eight years in respect of section 18 and two years consecutive for the affray. You have, however, pleaded guilty to these offences, and you are entitled to reduction of that period to take that guilty plea into account. You cannot expect, and you will not receive, the same amount of reduction as you have received if you had pleaded guilty at the very earliest opportunity, but you will receive a substantial reduction to reflect your guilty pleas, and I would reduce that overall starting point by a proportion of one-quarter. Hence you would have served a total sentence of seven-and-a-half years for these offences. The period that I specify is a period which is one-half of that seven-and-a-half years, namely three years and nine months." The judge then went on to deduct the period which the appellant had already spent on remand. 12. As we have indicated, the sole ground of appeal is that the conviction for a section 18 offence at a Court Martial in 1998 is not another serious offence for the purposes of section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 . Again as we have said, it appears that this point was not raised before the sentencing judge and was only raised by new counsel instructed by new solicitors. 13. The point is an important one and we have already granted an extension and granted leave. 14. Counsel, Mr Gledhill, who appears today on behalf of the appellant, in a very helpful and careful skeleton argument, has referred the court to the relevant statutory material. Section 109 of the Powers of Criminal Courts Act is the one in point. It reads in the material parts at 109(1): "This section applies where- (a) a person is convicted of a serious offence committed after 30th September 1997; and (b) at the time when the offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence." Sub section (5 ) of section 109 defines serious offence. It includes an offence under section 18 of the Offences Against the Person Act 1861 . In the material parts sub section (5 ) reads: "An offence committed in England and Wales is a serious offence for the purpose of this section if it is any of the following, namely: [(a, (b) and (c) are not material] (d) an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent)..." Subsections (6) and (7) of section 109 start in much the same way as does sub section (5 ). We take simply subsection (6) which reads: "An offence committed in Scotland is a serious offence for the purposes of this section if the conviction for it was obtained on indictment in the High Court of Justiciary and it is any of the following, namely... " and then a list of qualifying offences is set out. Similarly, subsection (7), reads: "An offence committed in Northern Ireland is a serious offence for the purposes of this section if any of the following, namely... " again a list of four offences are set out. 15. We refer also to section 114 of the Powers of Criminal Courts (Sentencing) Act. That reads as follows in the material parts: "(1) Where- (a) a person has at any time been convicted of an offence under section 70 of the Army Act 1955 ... and (b) the corresponding civil offence (within the meaning of that Act ) was a serious offence... the relevant section of this Chapter shall have effect as if he had at that time been convicted in England and Wales of the corresponding civil offence. (2) Subsection (3) of section 113 above applies for the purposes of this section as it applies for the purposes of that section." We do not need to set out subsection (3) of section 113. It is in similar terms to 114. 16. The short point is, it is submitted on behalf of the appellant, that section 114 refers to a person who is convicted of an offence. There is no doubt that this appellant was convicted by a Court Martial of an offence corresponding to section 18 of the Offences Against the Person Act 1861 , but it does not, it is submitted, satisfy the requirement of section 109(5) . Sub section 109(5) requires that the qualifying offence is "committed" in England and Wales. 17. Mr Gledhill on behalf of the appellant relies on a number of subsidiary submissions to support what he submits is the plain effect and meaning of the statutory test. First, he submits that the normal approach to the construction of the penal statute is strict. Here the effect of the statute is to provide for the most severe sentence, namely a sentence of imprisonment for life. Secondly, he submits that Parliament, had it intended to provide for Court Martial offences committed outside the United Kingdom to qualify as other serious offences, could have expressly drafted section 114 to include such offences committed outside England and Wales. Thirdly, he submits that the plain effect of sub sections (5), (6) and (7) is to ensure that the qualifying offence was committed in the United Kingdom, hence the word "committed" used in subsections (6) and (7) as well as sub section (5 ). Finally, he refers to the fact that if the offender in 1998 for the offence of which he was convicted at the Court Martial had actually been handed over to the German authorities and prosecuted under German law, that conviction could not possibly have been a qualifying offence. 18. Mr Ainsworth for the respondent accepts that the conviction for the 1998 offence does not fall "directly" (his word) within the provisions of section 109(5) . However, he relies on the fact that an offence under section 18 of the Offences Against the Person Act 1861 is a serious offence -- see section 109(5) . This, he says, was the offence of which the appellant was convicted in 1998. He refers to section 70 of the Army Act 1995 which in the material parts read: "(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence under this section. (2) In this Act the expression 'civil offence' means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law; and in this Act the expression 'the corresponding civil offence' means the civil offence the commission of which constitutes the offence against this section." So he submits that the combination of section 70 and section 114 means that Parliament must have intended that the list of offences set out in sub section (5 ) of section 109 were deemed to be qualifying offences. He accepts that that is to leave out the first part of sub section (5 ) which defines the offence as an offence committed in England and Wales. However, he submits that Parliament must have intended that what was being referred to was solely the list of offences rather than the first words of sub section (5 ). 19. We are quite satisfied that the construction contended for by the appellant is the correct one. In our judgment sub section (5 ) of section 109 requires the other serious offence to have been one committed in England and Wales. We accept the appellant's submission that section 114 does not convert a conviction for a section 18 offence at a Court Martial in Germany which was committed in Germany to an offence committed in England and Wales. In our judgment, the fact that section 71 of the Army Act provides for a person subject to military law to be guilty of an offence whether he commits the civil equivalent in the United Kingdom or elsewhere does not have the effect of making this offence one committed in England and Wales for the purposes of section 109(5) . In our opinion offences under section 71 of the Army Act which are equivalent to serious offences under civil law, are only qualifying offences under section 109 if they were committed in England and Wales. 20. Accordingly, we conclude that the judge lacked jurisdiction to pass an automatic life sentence. That sentence must therefore be quashed. 21. The next matter which we have to decide is what this court can do in relation to the offence to which the appellant pleaded guilty. We cannot of course pass any sentence which is of greater severity than was passed by the judge. In the circumstances, we do not think that either we can or that it would be right that we alter the determinate element of the sentence which the judge expressed as seven-and-a-half years before making the appropriate reductions. However, in our judgment this court is entitled to and can make an order for an extended sentence pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 . We consider that any period for which this appellant would, apart from section 85 , be subject to a licence, would, in the circumstances of his conviction and of his previous convictions, be inadequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation. 22. Accordingly, we propose to pass an extended sentence. The extended period shall be one of five years beyond the determinate sentence. To that extent and for those reasons this appeal is allowed.

2006_07_12-875.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1842/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1842

458674d928ceb1f02d66aa220d6f26f922f4e3b571a0817a02e84b29b72cd6da

[2003] EWCA Crim 3712

EWCA_Crim_3712

supreme_court

Case No: 200105624 D3 Neutral Citation No: [2003] EWCA Crim 3712 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEICESTER HIS HONOUR JUDGE DE MILLE Royal Courts of Justice Strand, London, WC2A 2LL Thursday 18 December 2003 Before : LORD JUSTICE AULD MR. JUSTICE GRIGSON and MR. JUSTICE RODERICK EVANS - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - GULBIR RANA SINGH Respondent - - - - - - - - - - - - - - - - - -

Case No: 200105624 D3 Neutral Citation No: [2003] EWCA Crim 3712 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEICESTER HIS HONOUR JUDGE DE MILLE Royal Courts of Justice Strand, London, WC2A 2LL Thursday 18 December 2003 Before : LORD JUSTICE AULD MR. JUSTICE GRIGSON and MR. JUSTICE RODERICK EVANS - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - GULBIR RANA SINGH Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Ivan Krolick (instructed by Ealing Law Chamber) for the Appellant Mr. Jonathan Gosling and Mr. Timothy Hannam (instructed by Commissioners of Customs and Excise) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Auld : 1. On 19 th September 2001, before His Honour Judge de Mille and a jury in the Crown Court at Leicester, the appellant was convicted on three counts of conspiracy to money-launder, more precisely to convert, transfer and remove from the jurisdiction the proceeds of drug trafficking and/or of other criminal conduct, contrary to section 1(1) of the Criminal Law Act 1977 . Jointly charged with the appellant in the same indictment were Paramjit Dhaliwal, Navtej Singh and Jasvir Singh, each of whom pleaded guilty to one of the three conspiracy counts. 2. We say that the appellant was convicted “before” the Judge and jury. In fact, he was not before them. In circumstances that we shall describe, he was absent from proceedings throughout the trial and was convicted in his absence. When he was eventually brought before the Court in late February and early March 2002, the Judge sentenced him on the latter date to seven years imprisonment on each of the three counts, the sentences to be served concurrently. 3. The appellant appeals against conviction on one ground by leave of the single Judge, and renews or makes original applications to this Court for leave to appeal against conviction on others. He also renews his application to appeal against sentence after refusal by the single Judge. The Facts 4. The prosecution case was that, between June 1999 and March 2000, the appellant and his co-accused on all three counts, Dhaliwal, engaged in money- laundering. They exchanged large sums of money obtained illicitly in England into Dutch guilders. They took the guilders out of the jurisdiction or, in March 2000, in the last week or so of their conspiracy, arranged for Navtej and/or Jasvir to do it as couriers for them (counts 2 and 3). The appellant was said to be the principal conspirator. The total sum that they were alleged to have money-laundered over the nine months’ period was about £6.2m. 5. The wording of the material parts of each of the counts in the statement of offence and in its particulars is of importance. Each statement of offence and its particulars charged the appellant with conspiracy to money launder the “proceeds of drug trafficking and/or criminal conduct”. The full particulars in each count, so far as material, alleged that he and the relevant co-conspirator/s charged: “… conspired together and with persons unknown, knowing or having reasonable grounds to suspect that certain property, namely banknotes, was, or in whole or in part directly or indirectly represented, another person’s proceeds of drugs trafficking and/or criminal conduct, to convert or transfer or remove from the jurisdiction that property for the purpose of assisting any person to avoid prosecution for a drug trafficking offence and/or for an offence to which Part IV of the Criminal Justice Act 1988 applies, or for the purpose of avoiding the making or enforcement of a confiscation order, in contravention of …the Drug Trafficking Act 1994 and/or …the Criminal Justice Act 1988 .” [The Court’s emphases] As we see it, the issue for the jury was whether the prosecution had proved that there was an agreement to which the appellant was a party to launder money illicitly obtained, with the intention of assisting someone to avoid a prosecution for drug trafficking or other criminal offence or, in the event of conviction, a confiscation order. 6. The prosecution case and evidence were that the appellant and his fellow conspirators were money-laundering large sums of sterling which had come either from drug trafficking or other criminal conduct, it was not known which, into Dutch guilders. The appellant lives near Leicester; but most of the evidence related to his activities in London. The prosecution relied on two main lines of evidence, The first was observations by customs and excise officers of the appellant and/or his co-accused visiting, in the main, two bureaux de change, the Haleep and the Day Exchanges in Notting Hill Gate, carrying large bags in and out of them, and of day visits to Amsterdam. The second was evidence of Mr. Sharif, the owner of those bureaux, and members of his staff employed at them, and also of a Mr. Assan at another bureau de change, the Wall Street Forex in Paddington. Mr Assan had introduced a man whom he knew as Rana to Mr.. Sharif. And Mr. Sharif spoke of the system of recording transactions at his bureaux and of having conducted some of them himself with a man whom he knew as Singh or Sink to whom Mr. Assan had introduced him at the Wall Street Forex. Singh’s or Sink’s transactions were recorded by Mr. Sharif or his staff under one or other name, and a number of those transactions corresponded with the watching officers’ observations of the appellant’s visits to one or other of the bureaux. Mr. Sharif described at the trial how the appellant used to bring sterling in a suitcase or shopping bag to exchange for guilders. 7. The prosecution put in evidence a schedule of transactions over the nine months period of the main conspiracy alleged against the appellant and Dhaliwal, showing when and where the 42 alleged exchanges of sterling for guilders, making up the total of £6.2m, were transacted. The schedule was compiled from the records of the bureaux and spoken to by Mr. Sharif and/or his employees who gave evidence. Neither Mr. Sharif nor those employees had identified the appellant or had been asked if they could identify him. However, they variously spoke of the man whom they knew as Singh or Sink making substantial exchanges on the days and in the amounts set out in the schedule. They also said that he always conducted the transaction even when he was accompanied by another man, whom the prosecution maintained was mostly Dhaliwal. 8. On 13 July 1999, early in the period of the nine months conspiracy alleged against the appellant and Dhaliwal, customs officers stopped the appellant in a car at Dover. They found in the car, under the appellant’s seat, 600,000 Dutch guilders that, earlier that day, he had obtained at the Haleep Bureau in exchange for £188,000. When questioned, he denied knowledge of the money under his seat and maintained that he was on his way to Dusseldorf to buy showrooms. It appears that the officers allowed him to proceed. 9. On 11 th March 2000, when the three conspiracies came to an end on the arrest of the alleged conspirators, customs officers stopped Navtej and Jasvir at Felixstowe and Dover respectively, each with a large quantity of Dutch guilders in his possession, the subjects of counts 2 and 3. On the same day officers arrested the appellant at a party. He denied that he was Rana Singh, that his wife was there with him and that it was his car outside. Later, in interview, he maintained his earlier denial of any knowledge of the guilders found in the car on 13 th July 1999. He acknowledged that he had visited Mr. Sharif’s bureaux de change, sometimes with Dhaliwal because he was a friend and sometimes on his own when Dhaliwal had not turned up. He said that Navtej and Jasvir were Dhaliwal’s couriers. He maintained that all the transactions at the bureaux were Dhaliwal’s and denied any knowledge of money-laundering. The Trial 10. On Sunday, 2 nd September 2001, the day before the start of the appellant’s trial, he disappeared. On Monday, 3 rd September the Judge, on learning of that, issued a bench warrant for his arrest, and over the next three or four days, heard and determined various applications by the appellant’s counsel, Mr. Ivan Krolick. 11. The most important of those applications for the purpose of this appeal was Mr. Krolick’s applications to quash the indictment against the appellant. He relied on two arguments. First, he submitted that the charges, each containing as an averment that the accused knew or had reasonable grounds to suspect that certain property was the proceeds of drug trafficking and/or crime was void for duplicity. He maintained that it could not amount to a statutory conspiracy within section 1(1) of the 1977 Act because it charged two mutually exclusive offences - it was not clear on the facts which - namely money laundering of the proceeds of drug trafficking or money-laundering of the proceeds of some other, unspecified crime. Second, he submitted that the words in the particulars, “knowing or having reasonable grounds to suspect” that the proceeds in question were such proceeds, whilst a sufficient allegation in a substantive charge under the 1994 Act or the 1988 Act , were insufficient for a charge of conspiracy to commit them. Greater precision in the indictment was important, urged Mr. Krolick, because of the effect, otherwise, of the uncertainty of the jury’s verdict as to which Act was engaged, on sentence and on any subsequent confiscation proceedings. He relied on R v. Roberts & Ors. (1998) 1 Cr App R 441 and R v. Siracusa & Ors. (1990) 90 Cr App R 340 .] 12. Mr Jonathan Gosling, for the prosecution, argued that there was no duplicity and that the particulars correctly identified the mens rea required to prove each of the conspiracies, relying on observations of this Court in R v. El Kurd (unreported: No. 9901854823, 26th July 2000). As to uncertainty of the basis of any verdict of guilty and its effect on sentence and any subsequent confiscation proceedings, he said that the Judge could form his own view on the evidence, but if uncertain could sentence on the basis more favourable to the appellant. 13. On Thursday, 6 th September the Judge observed that, whilst the observations of the Court in El Kurd were obiter, they were of strong persuasive effect. He ruled that each of the counts charged a single conspiracy and that, in the event of conviction, he could form his own view of the matter, as Mr Gosling had submitted. 14. On the day of that ruling, the police reported that they had been unable to find the appellant or discover anything that might help them do so. The Judge concluded that he had absconded and directed that the trial should proceed in his absence. He invited Mr. Krolick to participate in the trial, and Mr. Krolick, who had seen the appellant in conference on the previous Friday, considered that he was sufficiently instructed, and indicated that he would do that. The other three defendants at that stage indicated their wish to change their previous pleas of not guilty to guilty, and the Judge allowed them to do that. The basis on which Dhaliwal entered his pleas was that he had played a minor role in the three conspiracies, acting throughout under the direction of the appellant. 15. On the following day, Friday, 7 th September, the trial of the appellant began in his absence, but with Mr. Krolick continuing to act on his behalf. Before the prosecution called any evidence, he objected to the prosecution putting before the jury the schedule, to which we have referred, of the 42 exchanges of sterling for Dutch guilders over the main conspiracy period, His reason for objecting to it was that, though no issue was taken with the observing customs and excise officers’ identification of the appellant on many of these occasions, neither Mr. Sharif nor his employees had identified him or had been asked if they could do so. 16. The Judge, as we have indicated, allowed the schedule to be put before the jury. He did so because, as he said, the prosecution sought to link the evidence of the records of the bureaux with the identification evidence of the observing officers, and that it was for the jury to assess the weight of that link. In the event, Mr. Krolick, on behalf of the appellant, admitted the accuracy of the schedule. 17. The trial continued in the appellant’s absence, and at the close of the prosecution case, Mr. Krolick made an unsuccessful application of no case to answer, largely on the basis of his earlier unsuccessful submission that the indictment was duplicitous and/or uncertain in what it alleged. 18. On 18 th September the jury returned verdicts of guilty on all three counts, and the Judge deferred sentence until the appellant could be found. Shortly afterwards the appellant’s trial solicitor lodged an application for leave to appeal against conviction on a number of grounds. He did not, at that stage, include any complaint about the Judge’s decision to conduct the trial in the appellant’s absence, since the reason for it was still unknown. 19. Over two months later, on 28 th November, the appellant went to the British Embassy in Brussels claiming that he had been kidnapped on the eve of the trial and held, until his release that day, a prisoner in a remote farmhouse in Belgium. That night he returned to this country, travelled to Leicester and on the following day surrendered himself to the police. 20. On 28 th February 2002, Judge de Mille rejected a motion by Mr. Krolick in arrest of judgment seeking a re-trial because of the appellant’s claimed involuntary absence from the trial. He held that he had no jurisdiction to make the order sought in the absence of a defect in the indictment or otherwise on the face of the record that could not be cured by the verdict, and that there was none. He said that the proper course was for the appellant to seek leave to appeal and to call evidence on the issue. On 1 st March the Judge sentenced him, as we have indicated to a total of seven years imprisonment. 21. In early March 2002, on Mr. Krolick’s advice, an additional ground of appeal was proposed, seeking a re-trial on the basis of the appellant’s claim of involuntary absence from the trial, accompanied by various witness statements in support. 22. In May 2002 Davis J. granted leave on only one of the original grounds of appeal, namely on the issue of duplicity and/or uncertainty of the indictment. The Judge, who had not been provided with witness statements lodged in support of the additional ground of appeal, refused it, describing the appellant’s account as “bizarre and implausible”. Grounds of Appeal Duplicity and/or uncertainty of the indictment 23. The core of this complaint was that duplicity and/or uncertainty flowed from the particulars of the indictment, which left open whether the prosecution case was that the money the subject of it was the proceeds of drug trafficking under 1994 Act or of some other offence under the 1988 Act . However, Mr. Krolick has conceded in his submissions on the appeal that, in the light of this Court’s ruling in R v. Husain [2002] 2 Cr App R 363 , following its observations in El Kurd, he could no longer maintain the argument. 24. The Judge’s ruling, as we have indicated, was that there was a single agreement to do something which was illegal with a certain state of mind, namely a knowledge or reasonable grounds to suspect that the money was the proceeds of drug trafficking or other criminal conduct and for the purpose of contravening either or both Acts. Putting aside for the moment the pleaded alternative states of mind of knowledge of and reasonable suspicion as to the provenance of the money, as this Court was to indicate in Hussain that construction flows necessarily from the words of section 1(1) of the 1977 Act , creating the statutory conspiracy under which the indictment is framed. That is, they permitted the prosecution to allege in one indictment a conspiracy to launder money form one or the other of two possible sources, drug trafficking or other criminal conduct, or both. So far as material, it provides: “… if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either – “(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, … he is guilty of conspiracy to commit the offence or any offences in question .” [the Court’s emphases] The wording of that provision clearly contemplates the possibility of a statutory conspiracy to undertake a course of conduct that may result in the commission of one or more offences. Sections 3 and 4 are to like effect, section 3 making provision relating the penalty in such a conspiracy “to the gravity of the offence or offences in question”, and section 4 providing a restriction on the institution of proceedings for conspiracy “to commit any offence or offences”. 25. In Husain , the indictment charged: “conspiracy to contravene section 49(2) of the Drug Trafficking Act 1994 alternatively section 93C(2) of the Criminal Justice Act 1988 , contrary to section 1(1) of the Criminal Law Act 1977 ”. May LJ, giving the judgment of the Court, put beyond doubt in the following passages that such an indictment was not bad for duplicity or, implicitly, uncertainty: “25. Section 1 of the 1977 Act creates the statutory offence of conspiracy. The essence of the offence is an agreement between two or more persons to pursue a course of conduct. The agreed course of conduct has to have the nature which the section requires, that is it has to be such as will necessarily amount to or involve the commission of an offence or offences by one or more of the parties to the agreement. Subject to that. the essence of the offence is the making of the agreement …..., not any subsequent giving effect to the course of conduct agreed, it is therefore necessary to distinguish between the offence which constitutes the statutory offence (… the “Conspiracy Offence”) and the offence or offences which the agreement contemplates (… the “Agreed Offence or Offences”). 26. The terms of section 1 … show that there can be an agreement constituting a Conspiracy Offence where the agreed course of conduct, if it is carried out in accordance with the conspirators’ intentions, will necessarily amount to or involve the commission by one or more of the conspirators of more than one Agreed Offence. … A count in an indictment charging such a Conspiracy Offence would not be duplicitous. It would only charge one offence – conspiracy. 27. … an agreement to commit crime A or B is entirely possible. . such an agreement is capable of falling within section 1(1) …” 26. The scope for such an issue in future money-laundering cases has now been removed by the creation in Part 7 of the Proceeds of Crime Act 2002 of a new statutory offence of money-laundering and the repeal of the substantive offences under the 1994 and 1988 Acts the subjects of this indictment. The new offence is one of dealing in various forms in “criminal property”, namely property constituting a benefit from or representing such a benefit, from “criminal conduct”, defined in the broadest terms in section 340 as “conduct which constitutes an offence in any part of the United Kingdom”. “knowing or having reasonable grounds to suspect” 27. Before this Court Mr. Krolick sought to rely on a further ground, only touched on briefly in his submissions to the Judge. He submitted that the formula in the indictment, “knowing or having reasonable grounds to suspect”, whilst apt for an allegation of the specified substantive offences of concealing or transferring proceeds respectively of drug trafficking under section 49(2)(b) of the 1994 Act and of criminal conduct under section 93C(2)(b) of the 1988 Act , was not sufficient for an allegation of statutory conspiracy to commit either of those offences. He maintained that there is a distinction between a conspiracy to commit a substantive offence, for which knowledge of the facts constituting that offence is essential for proof of the conspiracy, and reasonable grounds to suspect facts, proof of which may be sufficient to bring home a conviction for the substantive offence, but not a conspiracy to commit it. He based his submission on the wording of section 1(1) and (2) of the 1977 Act . 28. Section 1(1)(a) makes it a statutory conspiracy only if the agreement is carried out in accordance with the alleged conspirators’ intentions, namely that it will “necessarily amount to or involve the commission of any offence or offences” by one of them. But, section 1(2) provides that it will only do that in the context of money-laundering if the accused, in so agreeing, intends to launder money with an illicit source or agrees to do so knowing of the illicit source. It is important to note that the particulars of each of the conspiracies alleged in this indictment (see paragraph 5 above) do not aver an intent to launder money with an illicit source, as they could have done, but do aver knowledge and also, as a further and impermissible alternative, reasonable grounds to suspect that the money the subject of the charged conspiracy had an illicit source. Section 1(2) provides: “Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.” [the Court’s emphasis] 29. It follows, Mr Krolick argued, that, whilst reasonable grounds to suspect may be sufficient for the substantive offence, it is not for the statutory conspiracies to commit it as alleged in this indictment , a distinction which, he said, the Judge did not draw in his directions to the jury. The Judge’s direction, at pages 11G-13A, was as follows: “The prosecution in this case quite frankly say to you that they don’t know what the source of this money is, but that the inference or conclusion you have to draw from the evidence is that it must be the proceeds of some sort of crime, it must be illicit money, and that’s why you have the alternatives put down – either drug trafficking and/or the proceeds of crime generally. … it obviously increased the wordiness, doesn’t it, of the charge … to have the alternatives actually spelt out? So it would be very much easier, wouldn’t it, if they had been able to say that the prosecution case is that this is a conspiracy, or agreement, to launder money which had been illicitly obtained? And that's really what it all boils down to, that’s what the prosecution set out to prove. … the conspiracy is … to remove that property from the jurisdiction, the bank notes … ‘[k]nowing or having reasonable grounds to suspect that certain property, namely bank notes, was or in whole or in part directly or indirectly represented another person’s proceeds of drug trafficking and/or criminal conduct’. So what the prosecution case is, that they agreed that they would launder illicit money. How would they know or believe it’s illicit? Well, it’s a matter for the evidence, of course, for you to decide whether they must have known or believed that as part of the agreement. … ” 30. The Judge repeated that direction in summary form, at page 21E-21H, when reminding the jury of the facts of which they had to be satisfied before they could find the appellant guilty of the conspiracy: “You have to look at all the evidence … as to whether the money is indeed illicit money, whether, if you’re satisfied there was an agreement, whether the conspirators must have known or had reasonable grounds to suspect that it was illicit in the sense I’ve described, and you look at all the circumstances …” 31. Those directions, submitted Mr. Krolick, were defective in leaving the jury with “reasonable grounds to suspect”, as distinct from knowledge, that the money was illicit as an alternative basis for conviction, notwithstanding that the form of the indictment in this case was essentially the same as that approved by this Court in Hussain. He pointed out that, although the Court in that case denied him his argument based on duplicity, it was not asked to consider this point and that, to the extent that it may be said to have approved an indictment of statutory conspiracy based on reasonable suspicion as distinct from knowledge of the illicit provenance of the property, its ruling was per incuriam and, therefore, not binding. 32. Mr. Gosling put his reply to those submissions in the form of four propositions. First, he said that section 1(2) of the 1977 Act was enacted to give effect to the ruling of the House of Lords in Churchill v. Walton [1967] 2 AC 224 , that, if on the facts known to defendants what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed upon. Second, section 1(2) has no application to this indictment, which does not require proof of a fact, but of an intent for which the subsection expressly provides as an alternative to knowledge in proof of conspiracy – “unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place”. Third, conspiracy in this respect may be compared with an offence of attempt to commit an offence, here to money-launder, which may be proved notwithstanding the absence of knowledge that the property in question is, say, stolen; see section 1(2) of the Criminal Attempts Act 1981 and R v. Shivpuri [1987] AC 1 , HL. Fourth, the same applies to aiding and abetting and the whole range of inchoate offences, where intent, not knowledge, is the criterion. 33. As we have said, there is no averment in this indictment of intent as an alternative to knowledge. However, Mr. Gosling submitted that such an averment is not necessary in a charge of conspiracy, where the intent is inherent in the unlawful agreement alleged, as the Judge made plain in his directions to the jury at page 8G-H and, when dealing with relative roles of the alleged conspirators, at page 10B of his summing-up: “…before I deal with the details of the charge, let me say some general remarks about conspiracy. Just as it’s a criminal offence here to launder money,… so it is just as much a criminal offence if two or more people agree with one another to launder money, and an agreement to commit a criminal offence is what we mean by ‘conspiracy’ – that’s all conspiracy means, it’s an agreement to commit an offence.” “… Providing you’re sure that there was an agreement with one of the named conspirators … that the crime should be committed, that is should be carried out, then it doesn’t matter, so far as the others are concerned, precisely what their involvement appears to be on the scale of seriousness, or precisely when he became involved.” …. ” 34. In our view, Mr. Gosling is correct in his submission. Section 1(1) of the 1977 Act provides a statutory conspiracy for a wide range of substantive offences with varying formulations of mens rea, ranging from intent to knowledge and its gradations. That is why, section 1(2) makes the criminal agreement for which it provides dependent on intent or knowledge. If two or more people intend and agree to commit an act that they know to be unlawful, then knowledge or mistake as to a fact critical to the success of the conspiracy is immaterial to its proof; the intention is proxy for, or more correctly an alternative to, knowledge of such a fact. And, it follows, gradations of knowledge, such as “reasonable grounds to suspect” it are irrelevant. In the light of that analysis, in the context of the conspiracy charged here, the inclusion in the particulars of the words “knowing or having reasonable grounds to suspect that certain property, namely banknotes, was, or in whole or in part directly or indirectly represented, another person’s proceeds of drug trafficking and/or criminal conduct” taken from the substantive offences, are an immaterial averment. This is how the particulars could have been drafted so as to give effect to section 1(2) of the 1977 Act and as a mercy to the jury, namely that the appellant and his co-accused: “… conspired together and with persons unknown to convert or transfer or remove from the jurisdiction certain property, namely banknotes, which in whole or in part directly or indirectly represented, another person’s proceeds of drug trafficking and/or criminal conduct, with the intention of assisting any person to avoid prosecution for a drug trafficking offence and/or for an offence to which Part IV of the Criminal Justice Act 1988 applies, or for the purpose of avoiding the making or enforcement of a confiscation order…” etc 35. In our view, it follows that there is no point of substance in Mr. Krolick’s complaint that something short of knowledge was alleged in the indictment when, given the thrust of the prosecution case, knowledge of the precise provenance of the banknotes money was not at the heart of this conspiracy, but intention to launder illicitly obtained money was. As Mr. Gosling submitted, the Judge, despite the snares and unnecessary prolixity of the indictment, put that simple issue to the jury in the passages in his summing-up which we have set out in paragraph 33 above and 37 below. The purpose of money-laundering 36. Mr. Krolick sought to re-open another argument as a potential ground of appeal that had been rejected by the single Judge. He said that the Judge failed to direct the jury adequately as to the purpose or purposes of the conspiracy that the prosecution was required to establish, namely to launder money for both drug trafficking and other criminal offences or one or the other, or to avoid the making of a confiscation order under both or one or other of those regimes. The Judge gave this direction, at pages 13D – 14A of his summing-up: “ … where large sums of money are generated by any sort of crime – drug trafficking or anything else - … the criminals have to somehow get rid of the money in a way that doesn’t refer back to them. The way in which that is sometimes done is by what we call ‘laundering’ it. … someone who is laundering money will be helping the criminal … to get rid of that in a way that won’t be traced back to the criminal, and that’s what’s alleged here. So where it says: ‘For the purpose of assisting any person to avoid prosecution,’ that obviously is the result, isn’t it, if you’re stopping any record being kept? Of course, that needn’t be the only purpose; it’s sufficient if that’s one of the purposes. People who launder money do it, you may think, as well in order to get a cut out of it themselves, there will be something in it for them, which no doubt is another purpose, but you would need to be satisfied, however, that one of the purposes is as set out in here. So that too, needs to be part of the agreement doesn’t it? ” [the Court’s emphasis] 37. Mr. Krolick’s complaint about that general direction, and about an earlier direction as to their entitlement to draw inferences - “common-sense conclusions” - from the evidence, was that the Judge did not direct them as to the evidence from which they could draw inferences of the purpose of the transactions, that is, whether it was to avoid prosecution for drug trafficking or for other criminal offences, or whether it was for the purpose of avoiding a confiscation order under either of those statutory regimes. He added that the following direction, at page 14B of the summing-up, may have served to mislead the jury in this respect: So the prosecution have to prove those three elements really, don’t they? First, the agreement involving Mr. Rana, and, secondly, what I refer to as the state of mind as to that agreement, and it would follow, you may think, from the state of mind, that the purpose is there, though that’s a matter for you as well.” 38. In our view, there is no room for such a duplicity argument in relation to an averment as to purpose or intent, any more than there was in relation to the averment as to knowledge of the exact provenance of the money. Both are caught by the reasoning in Husain . All the prosecution had to prove was that there was a conspiracy – that is, an agreement and intention to launder illicitly obtained money. Whether the intention included the avoidance, under either statutory regime of a confiscation order in addition to the avoidance of a prosecution is an artificial consideration, since under either regime confiscation proceedings depended upon conviction. As the Judge indicated in the passage that we have set out in paragraph 37, in the context of the conspiracy charge intent and purpose are necessarily the same. One conspiracy or many 39. At the close of the prosecution case the Judge rejected a submission of Mr. Krolick that, if the prosecution evidence disclosed conspiracy at all, it established a number of individual agreements, not the one global conspiracy charged. Mr. Krolick renewed the application to appeal the Judge’s ruling, arguing that he should have found that the evidence disclosed at its highest a number of individual conspiracies, each relating to an individual exchange transaction rather than the global conspiracy alleged by the prosecution. He also complained that the Judge failed to deal with the issue raised by his rejected submission when directing the jury, with the result that they never applied their minds to the question whether there was one conspiracy, as charged, or many. 40. There is no merit in this argument. The rule is that a judge should withdraw a single charge of conspiracy from the jury at the close of the prosecution case if there is no evidence to support it. There was ample evidence to support it here. And, as to the suggestion that the Judge should have alerted the jury to the possibility that it was not one conspiracy, but many, there was no factual basis for it and no possible point in speculatively complicating their task in this respect. It was enough that he made plain to the Jury, as he did, at pages 9B and 14C of his summing-up, in relation to count 1, the principal conspiracy charged against the appellant and Dhaliwal, that they were concerned with an allegation of a single conspiracy: “… the first question there is: are you sure there was, in fact, a single agreement between those two to commit the offence in question running over the period of time. And, secondly, you would have to be sure that Mr Rana was a party to that agreement in the sense that he agreed with Mr. Dhaliwal that the crime should be committed, and at the time of that agreement he intended that they should carry it out, or that it should be carried out.” “… Count 1 alleges that single conspiracy between Mr Rana, … Dhaliwal and others unknown during, in effect, the whole period that you’re considering. So it’s the prosecution case that they had that one continuing agreement with all the various events being part of that one agreement.” Identification 41. A further renewed application for leave to appeal after refusal by the single Judge turned on the issue of the prosecution’s identification of the appellant as the man recorded in the books of the Day Change Bureau, and known to Mr. Sharif, as “Singh” or “Sink”. As we have said, although the appellant had admitted visiting Mr. Sharif’s bureaux and having met Mr. Sharif, he denied having effected any exchange transactions. However, as we have also noted, the prosecution relied on the evidence of Mr. Assan of the Wall Street Forex Exchange that he had introduced a customer whom he knew as Rana to Mr Sharif and on Mr. Sharif’s evidence that his bureaux undertook the relevant transactions with that man, whom he knew as “Singh” or “Sink”. In addition, there was the schedule of transactions drawn from the records of the bureaux and the considerable body of observation evidence from customs and excise officers of the appellant visiting them when the transactions were made and of him carrying bags in and out. 42. Mr. Krolick’s point was that the prosecution’s link between Mr. Assan, Mr. Sharif and the appellant was incomplete because Mr. Assan did not testify that the man whom he knew as Rana, and whom he had introduced to Mr. Sharif, was the appellant, and because there was, in any event, a conflict between their evidence as to the date of that introduction. According to Mr. Assan, he made the introduction on 16 th July 1999; according to Mr. Sharif, the introduction was much earlier, possibly in May 1999; and the first transaction recorded in the name of Singh at the Day Change Bureau relied on by the prosecution was on 14 th June 1999. Mr. Krolick’s complaint was that the Judge did not put this conflict on the issue of identification adequately to the jury. 43. Mr. Krolick also relied on information that had been disclosed to the Judge at trial, but not to the defence until the hearing of this appeal, namely that Mr. Sharif had been a participating informant. The Judge had declined to order disclosure of that information to the defence because, in his view, it was immaterial to the appellant’s defence case, having regard, in particular to the admitted schedule of transactions and the evidence of the observation of the customs and excise officers. That is still the view of the Crown, but it was prompted to, and did, make disclosure of the information to the appellant on the hearing of the appeal for three reasons. The first was the recent change in the approach of this Court to the treatment of witnesses who are or were participating informants, namely that their status should normally be disclosed to the defence; see R v. Patel & Ors. [2001] EWCA Crim 2505 and R v. Early & Ors [2003] 1 Cr App 19. The second was that Mr. Sharif’s former status as a participating informant and, in addition, his dubious credibility are now public knowledge as a result of his role as a witness in R v. Prosser & Ors [2003] EWCA Crim 1067 . And the third was that, though the Crown were of the view that this additional information, if known to the Judge, would not have affected his ruling, it considered it right to make the disclosure so as to give the appellant an opportunity, if so advised, to seek leave to argue a ground of material non-disclosure, albeit an argument that it would resist. 44. Mr. Krolick made a number of points about this late disclosure to the defence. First, he said that if it had been made at trial, he would have sought to exclude Mr. Sharif’s evidence of “identification” – as he termed it. Second, he said that, in the light of the information available to the Judge, he should have contrasted more than he did in his summing-up the evidence of Mr. Assan and Mr. Sharif on the issue of the introduction of Rana/Singh to the latter. Third, he complained that the Judge failed to review his ruling as the trial progressed. In summary, he maintained that the appellant did not have a fair trial because of the non-disclosure to him of this information at the trial. 45. We consider that there is no basis for the initial complaint of Mr. Krolick under this head that the Judge did not adequately draw attention to the possible conflict between the evidence of Mr. Assan and Mr. Sharif going to the chain of evidence linking Rana and Singh or Sink to the appellant as the person conducting some of the alleged money laundering transactions. The Judge directed the jury on these matters at page 22G and, again at pages 24F - 25A when reminding them of Mr. Assan’s evidence of introducing the appellant to Mr. Sharif on 16 th July: “You heard Mr Krolick yesterday address you as to what he suggested is the break in the link from Wall Street through to Daychange, and …. You will of course remember, as you heard it so recently, the submissions which he made. …. He said there was another customer from another bureau present at that time, and he named him as Mr. Sharif from the Day Exchange. That is, of course, evidence which the defence rely on, that it was on 16 th July, and, of course, there is the record, relates only to the two dates, and the question you’ll have to ask yourselves is whether you can rely on Mr. Assan’s recollection that it was on that occasion – that’s his evidence – that Mr Sharif was there.” 46. In any event and for the following reasons, the evidence in question does not merit that attention that Mr. Krolick gave to it in his submissions to the jury or to this Court. First, the linkage achieved through Mr. Assan’s and Mr. Sharif’s evidence to the recorded bureaux transactions was not itself identification evidence. Second, as we have mentioned, the issue went only to a few of the transactions forming part of the proof of the underlying conspiracy. Third, Mr. Krolick’s challenge of the evidence of Mr. Sharif at trial went, not to his credibility, but to the accuracy of the bureau records which he made or for which he was responsible. And, fourth, as Mr. Krolick conceded in argument, even if the jury had rejected Mr. Sharif’s evidence, they could have still convicted the appellant on the basis of the recorded transactions, the corresponding observations of the customs and excise officers and the appellant’s admissions of having visited the bureaux and of having met Mr. Sharif. Thus, the chain of evidence established by those few transaction was not critical to the prosecution case. And, as we have shown, the Judge adequately reminded the jury of the issue raised by the defence in relation to it. 47. For the same reasons, there is no mileage in Mr. Krolick’s broader complaint under this head that want of disclosure to the defence at trial that Mr. Sharif had been a participating informant led to an unfair trial. Given the limited scope of his evidence, the issues on it taken at the trial, and the body of other highly probative evidence cumulatively identifying the appellant as the man conducting the money-laundering transactions, we consider that information would have had no effect on the outcome of the trial if it had been disclosed to the defence and deployed by it at that stage. The appellant’s absence from his trial 48. Mr. Krolick made an original application to the Full Court for leave to appeal against conviction and to seek a new trial on the basis of the appellant’s claim that his absence from the trial was involuntary because he was abducted the day before it started and held prisoner in Belgium for nearly three months. We have heard oral evidence on the matter from the appellant, his wife, Mrs Rubgir Singh, and the solicitor instructed by him for the trial, Mr. Kangesu Pathmanathan, with a view to considering whether to “receive” it as evidence under section 23(1)(c) and (2) of the Criminal Appeal Act 1968 , as amended. 49. Critical among the factors mentioned in section 23(2) is that in paragraph (a), whether the evidence, in particular that of the appellant and his wife, appears to be “capable of belief”. If it is and, if it may afford a ground for allowing the appeal (para. (b)), there is no room in the circumstances for consideration of its admissibility or otherwise at trial (para. (c)), or as to the reasonableness of the explanation for not adducing it at trial. The account, if capable of belief, may affect the safety of his conviction in its impact on the fairness of his trial. So much is clear law and common-sense, though Mr. Krolick raised one issue that he said was not resolved by authority, namely whether the appellant must prove his abduction for this purpose and, if so, to what standard. He submitted that it should be the so-called evidential burden, namely of simply raising the issue, so as to impose on the Crown the burden of disproving it to the criminal standard, a submission to which we shall return. 50. The appellant’s account, in outline, was as follows. He lived with his wife and young son in Leicestershire. He suffered from a heart complaint for which he took daily medication. It was his practice, because of his heart condition, to take a walk on Sunday afternoons. 51. It is common ground that on a number of occasions before his abduction the appellant and his wife had, through his solicitors, expressed concern to the authorities about unknown persons loitering in motor vehicles in the vicinity of his home outside Leicester and had provided the vehicles’ registration numbers. The police investigated the complaints and concluded that the owners of the vehicles in question were small-time drugs dealers whom they were unable to relate to the appellant’s claimed abduction. 52. On the Sunday afternoon before the start of his trial the following day, the appellant went for a walk on his own. While close to his home, he was bundled into a van by two men. Neither of them wore a mask, but one had a gun. Once he was inside the van two other men covered his head and eyes with a woolly hat and tied his hands. He did not shout for help because it all happened so quickly. When he asked them why they were doing this to him, they accused him of being a “grass” – an informer – and told him to lie on the floor of the van and to shut his mouth. 53. The men drove for some hours, seemingly without saying anything more to him by way of explanation for what they were doing or where they were taking him. Two or three hours into the journey his solicitor, Mr. Pathmanathan, whom he had arranged to meet at 6 p.m. that evening at Leicester Railway Station, telephoned him on his mobile telephone. One of the men took his telephone from his pocket and told him to answer it, putting it to his ear. With one of them pressing the gun to his head, he told the solicitor that he would meet him in ten minutes in Leicester. When the call finished one of the men took the telephone. The appellant, never saw it again (telephone records show that it was not used after 3 rd September). 54. After some hours drive, the appellant was transferred into what seemed like a lorry. His hands were still tied, and the woolly hat was still pulled down over his face so that he could hardly see anything. They then gagged him and bound his legs with rope. There was a further long drive, with some stops and starts, and still without any conversation or explanation as to their treatment of or intentions for him. When the vehicle eventually stopped, the men undid the rope binding his legs but left the hat pulled low down over his face so that it still served as a blindfold. Some men speaking in a foreign language took him into a very small basement room of what appeared to be a farm. There, they finally removed the hat and untied his hands. The room was in darkness; it had no window and no artificial light; and, for furniture, there was only a bed. They gave him a cup of coffee, locked him in and left, again without explanation. There was a lavatory and a sink in a second room, also windowless, which his keepers unlocked for him and accompanied him when he needed to use them. There was no light and little heat in either room and no contact of any sort, for example a radio, with the outside world. They kept him there in total darkness for what turned out to be nearly three months. During that period they barely spoke to him, and when they did it was in a language that he could not understand. He was unable to shave or cut his hair. He wore the same clothes throughout, including his under wear, which he was able to wash from time to time in the sink in the next room. And he had no medication, which, before his abduction, he had normally taken daily, for his heart condition. 55. Then, towards the end of his period of captivity, one of his captors cut his hair and gave him a razor to trim his beard, which he did. They told him he was free to go, and, without further explanation, drove him somewhere and left him to walk away on his own. He had no idea where he was. After walking for two or so hours, he hitched a lift to the nearest town, which turned out to be Brussels, where he made his way to the British Embassy. Although he had £180 in cash on him, which he had had since the day of his abduction, he made no attempt to change it or to telephone his wife. 56. It is common ground that in the afternoon of 28 th November he presented himself at the Embassy, that he asked them to telephone his wife and that he was provided with papers to enable him to return to this country. According to him, he told an Embassy official what had happened to him, but the Embassy has indicated that it did not investigate his claim of abduction and that it did not interview him or make any record of what he said. However, an Embassy official appears to have telephoned the authorities in London with a request that they should contact his wife. 57. The appellant returned by Eurostar to London late that night and telephoned his wife from King’s Cross Station and took a train to Leicester. His wife collected him at Leicester station in the early hours of the morning of 29 th November and took him home. The following morning, without attempting to see his doctor for a check-up after his terrible ordeal, he returned to London to consult Mr. Pathmanathan. Later that day he surrendered to the police in Loughborough, and told them why he had not been able to attend his trial. 58. The appellant’s wife’s in her evidence to the Court confirmed his account of seeing and reporting strange cars parked near their house over a period of months before his disappearance. She also confirmed that he had disappeared while taking a walk on the afternoon before the start of his trial and of not having seen or heard from him until his reappearance nearly three months later. She spoke of a telephone call from the Home Office on 28th November informing her that he was alive and was on his way back to London and of picking him up at Leicester Railway Station in the early hours of 29 th November. She said that he was very tired and in a dreadful state; he needed to see a doctor, and that his clothes were so filthy she immediately put them in the washing machine. 59. Mr. Pathmanathan confirmed the contents of, and was cross-examined on his written witness statement. He stated that he and counsel had seen the appellant in conference in London on the Friday before the start of the trial and that the appellant had arranged to meet him at Leicester Railway Station at 6 p.m. on the Sunday and take him to a hotel. He kept that appointment, but the appellant did not. He telephoned the appellant, who said that he would meet him in 10-15 minutes. The appellant did not sound from his reply as if he was in trouble and said nothing to cause him concern. The appellant did not come to the station and eventually he, Mr. Pathmanathan, went off to the hotel on his own. He said that when he saw the appellant in London on the day after his return, he did not look as if he needed urgent medical attention. 60. The critical questions for the Court in determining whether to “receive” evidence pursuant to section 23 is whether it appears to be capable of belief and, if so, whether it may afford a ground for allowing the appeal, that is, for thinking that the conviction may be unsafe; see Lord Bingham of Cornhill in R v. Pendleton [2002] 1 WLR 72 , at paras. 10 and 18 – 19. 61. Mr. Krolick invited the Court to receive the evidence as capable of belief and material to the fairness of the appellant’s trial and hence to the safety of his conviction. As we have mentioned, he also submitted that there was only an evidential burden of proof on the appellant – that is one of simple assertion – that he had been abducted and that it was then for the Crown to disprove it to the criminal standard, as it does, for example in defences of alibi or self-defence 62. Mr. Gosling invited the Court to reject and to refuse to “receive” the appellant’s account as evidence because it was incapable of belief. He said that the issue for the Court – the Pendleton test – was simply an issue of fact as to the safety of the conviction, not one of applying a burden and standard of proof as does a jury considering the issue of guilt. 63. Mr. Krolick was unable to produce any authority for his submission that it is for the Crown to disprove to the criminal standard of proof or otherwise the appellant’s assertion in evidence that he was unable to attend his trial because he was abducted. We are not surprised at such absence of authority. The prosecution’s obligation to disprove a defence as part of proof of guilt at trial is a different exercise from that of the Court of Appeal in determining for the purpose of section 23 whether evidence is capable of belief and, if so, of being material to the fairness of the trial and hence to the safety of the conviction. As Lord Bingham indicated in Pendleton , at paras. 18 and 19, the Court’s task when considering an application to “receive” evidence under section 23 is to form its own view of that evidence and on all the other material before it untrammelled by adherence to any particular thought process not prescribed by section 1(2) of the 1968 Act . Its task, put at its simplest, is to consider whether the evidence raises in its mind a doubt as to the safety of the conviction. To the extent that there is any burden – which can only be one of persuasion – informing that thought process, it is to be found in the thinking of Lord Hobhouse of Woodborough in Pendleton , at para. 56, a burden on the would-be appellant or appellant to show that his conviction is respectively arguably unsafe or unsafe: “… Unless and until the Court of Appeal has been persuaded that the verdict of the jury is unsafe, the verdict must stand. Nothing less will suffice to displace it. A mere risk that it is unsafe does suffice: the appellant has to discharge a burden of persuasion and persuade the Court of Appeal that the conviction is unsafe …” 64. We are firmly of the view that the appellant’s evidence and, to the extent that his wife’s evidence bears on it, her evidence too, are not capable of belief. It is hard to see what motive anyone could have had for abducting the appellant on the eve of the start of his trial, taking him and keeping him in appalling conditions for three months in Belgium and then releasing him to return home. On the appellant’s account, his captors gave him no explanation for what they were doing to him, save for a cryptic accusation that he was a “grass” shortly after bundling him into the van near his home. Throughout his solitary captivity, they never told him what they wanted from him or anyone else or why they held him there, and when they released him, he was still none the wiser. Mr. Krolick suggested in argument that the motive may have been to prevent him from testifying at his trial – presumably against his co-defendants – but that seems far-fetched, particularly as they all pleaded guilty a few days after his disappearance and before the start of his trial. And, whilst, for the purpose of mitigation of their sentence, they were no doubt all able to cast him without contradiction as the principal conspirator, that was already manifest on the prosecution case and was amply supported by the evidence called at his trial. 65. The appellant’s account of abduction and lengthy solitary captivity in an unlit basement in Belgium, is, as the single Judge observed in refusing leave on this ground, bizarre. In its essentials, it has no support from the other evidence on which he relied. And, apart from the puzzle as to what his captors might have sought to achieve in abducting him, his account of their behaviour throughout is beyond belief. Why, for example, would they take the risk of enabling him, when bound and blindfolded, to answer any telephone call? And, how and why was it that he was able to convey in an unconcerned voice, according to his caller, Mr. Pathmanathan, that he would see him in 10 – 15 minutes? It is strange too that the appellant claims not to have been aware of the transhipment of the second vehicle onto the ferry or rail on which, on his account, he must have been taken to the continent, 66. The appellant’s account of his living conditions for up to three months is unbelievable: held in permanent darkness for nearly three months in a barely heated basement room; basic washing and lavatory facilities in an adjacent equally unlit basement room, which had to be unlocked for his use and to which he was always accompanied; no change of clothes; no explanation for his continued detention there; no discussion of any consequence with his captors; his sudden unexplained release; no attempt to telephone his wife to tell her of his release until his arrival in London, though he has cash that he could have exchanged to enable him to do so; despite the serious physical and mental effects that such a prolonged and harsh period of captivity might have been expected to have on him – in particular a possible serious effect on his heart condition for want of medication, his first action after returning to his home in the early hours of the morning was, not to call for or see a doctor, but to travel back to London to confer with his solicitor before giving himself up to the police; and he has since made no formal complaint to the police about the claimed abduction or sought an investigation as to who might be responsible. 67. It follows from our view that the appellant’s account that it would not, considered on its own, or with such supporting evidence as he called, afford a ground for allowing the appeal. 68. For the avoidance of doubt, we have also considered whether, notwithstanding that the appellant’s absence from his trial was voluntary, as the Judge found, it nevertheless resulted in an unfair trial with the effect that his conviction is unsafe. The House of Lords has recently considered this problem in R v. Jones (Anthony) [2002] 2 WLR 524 . There may be circumstances in which an accused’s voluntary absence could result in an unfair trial, for example, last minute panic or fear by an accused, or concern for close relatives, at the prospect of his impending trial. No doubt, considerations of policy, of the sort referred to by the Court in R v. Jones (No.2) (1972) 56 Cr App R 413 (where the accused absconded in the course of trial) requiring rigorous scrutiny so as to avoid putting a premium on absconding, must now be looked at with Article 6 ECHR in mind. The right to a fair trial implies the right of an accused to be present at it so that he may participate effectively in the conduct of his case; see Ekbatani v. Sweden 13 EHRR 504, at para. 25. It may no longer be appropriate for the Court to respond to an accused’s voluntary absence from his trial on policy grounds. But the concept of a fair trial connotes an obligation on the part of a defendant to submit to the process of the court and not, by absenting himself, to frustrate its ability to provide him with a fair trial by deliberately staying away, as Lord Bingham observed in Jones (Anthony), at paras. 11 and 12. 69. Another way of putting it might be, as Strasbourg jurisprudence appears to allow, that a defendant may waive his right to be present, by not attending the hearing having been given effective notice of it. However, on that approach the circumstances of his non-attendance must at least have been such as amount to a clear waiver; see Colozza v. Italy 7 EHRR 516; Brozicek v. Italy 12 EHRR 371 , at paras. 43-46; Poitrimol v. France 18 EHRR 130 ; Lala v. Netherlands 18 EHRR 586 ; and Pelladoah v. Netherlands 19 EHRR 81 . 70. As the House of Lords has recently shown in Jones (Anthony) , an accused’s deliberate absence from his trial leaves the Court of Appeal with its discretion as to remedy under section 8(1) of the Human Rights Act 1998 so as, in appropriate circumstances, to refuse him permission to appeal or, having granted leave, to dismiss his appeal. In so holding their Lordships approved, some with reservations as to the notion of waiver in this context, a check-list of principles identified by the Court of Appeal (sub nom R v. Hayward & Ors) ( [2001] QB 862 , AT PARA. 22) for guidance of our courts in relation to the trial of a defendant in his absence. That check-list, which their Lordships considered gave general effect to the Strasbourg jurisprudence, had as central themes the discretion of a judge to try a defendant in his self-imposed absence and the need for great caution before doing so, to which Lord Bingham added, at para. 15, a third, the desirability of representation. An important factor going to the exercise of the discretion is the extent to which, if at all a defendant’s absence would make his trial unfair and, if so, to such a degree that it would be likely to make a conviction unsafe. 71. In the light of those considerations and on the premise that we are correct in our view that the appellant deliberately absented himself from his trial, we would not regard the trial as unfair. And we would not, in any event, exercise our discretion under section 8 of the HRA to grant him the relief of an appeal with a view to re-trial, since we consider his conviction to be safe. In so concluding we have in mind: the weight of the evidence against the appellant, the fact that he was represented by senior and fully instructed counsel who took the view at the time that the trial could fairly proceed in his absence, and the nature and narrowness of the issues of fact taken on his behalf at the trial and before this Court. 72. In the circumstances, the question raised by Mr. Krolick whether the Judge had and should have exercised power to direct a re-trial because of involuntary absence of the appellant from his trial does not arise. It is enough to say that it is uncertain whether an accused is still entitled to move in arrest of judgment at any time between verdict and sentence (see e.g. R v. Gombos [1965] 1 WLR 575 and in R v. Goswami [1968] 2 WLR 1163). In R v. Laming (1990) 90 Cr App R 450 , a case where an issue arose after conviction but before sentence as to the validity of the indictment, the Court indicated that it was for the Court of Appeal, not the trial judge, to investigate it. There may still be some life in exceptional cases for the procedure of moving in arrest of judgment between verdict and sentence, as the editors of the current edition of Archbold strongly argue at paras. 5-54 and 7-41-42. However, we believe that its proper use nowadays would be likely to be confined to a formal error, such as a fundamental defect in the indictment that cannot be cured by the verdict, as the Judge ruled. We consider that it could not properly be resorted to where a contested issue is raised post-trial as to why an accused had been absent from it and as to the impact of that absence on the fairness of his trial. In short, we consider that the Judge’s ruling against the application was correct for the reason he gave. 73. Accordingly, we dismiss the appeal against conviction and refuse all the applications for leave to appeal against conviction.

2003_12_18-170.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3712/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/3712

aca087f7b4440d824ed33b88c304fbfdd1180e02b9846faee55b0769b7c25130

[2022] EWCA Crim 934

EWCA_Crim_934

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 SITTING AT MOLD CROWN COURT [2022] EWCA Crim 934 CASE NO 202200502/A3 The Law Courts Civil Centre Mold, Flintshire CH7 1AE Thursday 26 May 2022 Before: LADY JUSTICE NICOLA DAVIES DBE MRS JUSTICE JEFFORD DBE MRS JUSTICE COLLINS RICE DBE REGINA V DAVID CHORLTON __________ 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) _________ MS NICOLA CARROLL appeared on behalf of the Crown MR A WATKINS appeared on behalf of the Appellant. _________ J U D G M E N T 1. MRS JUSTICE JEFFORD: The appellant (aged 27) appeals against sentence with the leave of the single judge. 2. The sentence the subject of the appeal is one of 10 years' imprisonment imposed by the Crown Court at Manchester Minshull Street following the appellant's guilty plea to an offence of causing death by dangerous driving. 3. Before we turn to that offence and the sentence, it is material to set out some of the background to this appellant and his offences. 4. On 9 January 2020 the appellant, having pleaded guilty in the Magistrates' Court and being committed for sentence to the Crown Court, was sentenced by the Crown Court at Manchester Minshull Street for, amongst other associated offences, an offence of dangerous driving contrary to section 2 of the Road Traffic Act 1988. That offence was committed on 27 November 2019. He was sentenced to 8 months' imprisonment suspended for 18 months. He was disqualified from driving for 12 months and disqualified from driving until an extended test had been passed. 5. The facts of that offence were that, on 27 November 2019, the appellant was driving a stolen Volvo with false number plates. At 12.15 pm a police officer saw the car being driven erratically on Oxford Street, Stalybridge. The police indicated for the driver to stop but he did not. There was a short pursuit in which the driver, the appellant, reached speeds of up to 70 miles per hour in a residential area with a speed limit of 30 miles per hour. He narrowly missed a bus coming in the opposite direction. The car drove into an access road that leads to Copley Academy High School. Two men including the appellant got out and ran off but were detained after a short chase. 6. On 5 January 2021 the appellant was driving an Audi A3. He was stopped by a police officer on mobile patrol. The appellant gave his name and address. The officer checked the Police National Computer and discovered that the appellant was a disqualified driver. 7. The appellant was charged with two offences: one of using a vehicle with no insurance, contrary to section 143 of the Road Traffic Act 1988, and secondly, driving whilst disqualified contrary to section 103(1)(b) of the Road Traffic Act 1988. Both of these offences are, by virtue of the provisions of the Road Traffic Offenders Act 1988, summary offences. 8. On 11 February 2021 he pleaded guilty before the magistrates to these two offences. He was committed for sentence to the Crown Court. He was purportedly committed under section 20 of the Sentencing Act 2020. 9. Before this matter had come before the Crown Court and while the appellant was on bail, the appellant committed further driving offences which resulted in the death of his friend, Philip Ogden, a young man of 32, who had a baby son and is a tragic loss to his partner and family. 10. The indictment which we are concerned with charged, as count 1, causing the death of Philip Ogden on 9 May 2021 by dangerous driving contrary to section 1 of the Road Traffic Act 1988. In count 2 on the indictment, the statement of offence was causing death by dangerous driving "whilst unlicensed, uninsured, or disqualified contrary to section 3ZB of the Road Traffic Act 1988". We shall return to the nature of that count in due course. Further summary offences of driving while disqualified, using a vehicle without insurance and failing to stop after an accident were also committed to the Crown Court for sentence. 11. On 11 June 2021 in the Crown Court at Manchester Minshull Street the appellant pleaded guilty to count 2 on the indictment but not guilty to count 1. On 6 December 2021 he changed his plea on count 1 to one of guilty. He was sentenced on 2 February 2022 and on count 1 the sentence was one of 10 years' imprisonment. The offence having been committed during the operational period of his suspended sentence, that sentence was activated in full to be served concurrently. 12. It is the sentence of 10 years' imprisonment that the appellant now appeals against with leave. 13. The facts of this offence were as follows. On 9 May 2021 the appellant was driving a Ford Focus shortly before 11.00 pm, carrying three passengers including the victim Mr Ogden. The appellant was driving at speed and dangerously through the streets of Stalybridge. The driving was captured on CCTV. At 10.53 pm the car was seen driving on the High Street at speed. The appellant performed a handbrake turn before driving into Stanley Street in a built-up industrial area on the outskirts of Stalybridge. This was a cul-de-sac and the car remained there for 2 to 3 minutes before emerging and performing another handbrake turn and again travelling at speed. The appellant drove into Bayley Street, ignoring the "Give Way" markings on the road and at a speed above the 30 mile per hour speed limit. 14. The collision report stated that the vehicle was travelling at no less than 36 miles per hour although the speed was likely to have been higher. The officer and author of the collision report was unable to say that the speed was greater than 39 miles per hour and expressed the opinion that it was in the region of 39 miles per hour. 15. What happened was caught on CCTV, which we have viewed with care. The appellant's car can be seen driving through the crossroads and the "Give Way" markings without any reduction in speed at all. The car collided with an Audi which was driven by Mr Gharibyar. Mr Gharibyar's Audi spun 180 degrees and came to rest in the centre of the junction. He had been travelling at around 27 miles per hour at the time. He saw the Ford Focus approaching and tried to brake but was unable to avoid the collision. He was dazed but fortunately uninjured and got out of the vehicle. He approached the Ford Focus to check on the people inside. 16. The Ford Focus had also rotated in a spin as a result of the collision and ended up colliding with some metal fencing. Photographs including those in the accident report show the rear and side of the car heavily damaged as a result of that collision together with significant damage to the metal fencing. None of the occupants of the Ford had been wearing seatbelts. As a result of the collision Mr Ogden was thrown from the passenger side backseat and was ejected from the vehicle. Mr Gharibyar found Mr Ogden lying next to the rear bumper on the passenger side of the vehicle. He confronted the other occupants. He was not able to identify who had been driving the vehicle although there is now no issue that it was the appellant. He asked them who Mr Ogden was. The men tried to drag Mr Ogden's body from its position slightly under the body of the car. Mr Gharibyar tried to tell them not to but felt intimidated by them. They moved Mr Ogden's body about half his body length. When Mr Gharibyar went to call the emergency services the men, including the applicant, told him not to, saying: "No Police". One of the men approached him and told him in an aggressive manner: "No Police. No Police". Mr Gharibyar did however call an ambulance. 17. Within about 5 minutes a Volkswagen Golf arrived at the scene driving very fast and stopping abruptly at the collision site. A male identified as one of the men from the Ford got out of the Golf and seemingly went to retrieve something from the Ford before getting back into the Golf which drove off at speed. 18. Two passers-by came to Mr Gharibyar's assistance. They tried to revive Mr Ogden and perform CPR. Paramedics arrived 6 minutes after the call and found that Mr Ogden had no heartbeat or other signs of life and he was pronounced dead at the scene. The post-mortem examination found a number of significant injuries to Mr Ogden and the pathologist indicated that the injuries were compatible with impact from an item of the car's bodywork such as a door frame or a straight edge. The injuries to his right lung were particularly severe and in conjunction with his other injuries would have rapidly been fatal. 19. The appellant and his associates had fled the scene. The appellant made no attempt to contact the police after the collision but handed himself in to the police 62 hours later. He gave a prepared statement in which he accepted being the driver of the vehicle at the point of the collision. He said that he had suffered a momentary lapse in concentration and denied that his driving was dangerous. It is entirely apparent from the CCTV footage that that was untrue. 20. On pleading guilty, the appellant provided a written basis of plea in which he accepted being the driver at the time of the collision but denied being the driver when the car entered Stanley Street. That position was not, however, maintained on sentencing and, for the purposes of sentencing, it was clear and accepted that the appellant was the driver of the car throughout the incident which we have described. 21. The Definitive Guideline for Offences of Causing Death by Dangerous Driving applied to this case. The Crown submitted that this was a level 2 case: that is, one in which the driving created a substantial risk of danger. The judge concluded that it was a level 1 case and sentenced on that basis. Level 1 is for the most serious cases encompassing driving that involves a deliberate decision to ignore, or a flagrant disregard for, the rules of the road and an apparent disregard for the great danger being caused to others. The Guideline provides that such offences are likely to be characterised by a prolonged, persistent and deliberate course of very bad driving, or consumption of substantial amounts of alcohol or drugs leading to gross impairment -- neither of which applies in the present case or -- "a group of determinants of seriousness which in isolation or smaller number would place the offence in level 2". 22. In placing the offence in level 1 the judge relied on the appellant's demonstrating in his driving a total disregard for the rules of the road. As the judge said: "Driving around as if you were in a rally car, speeding, performing handbrake turns". The judge also relied on the aggravating features that it was obvious that no one was wearing a seatbelt and the fact that the appellant fled the scene. All that was exacerbated by the fact that the appellant had already received a suspended sentence for dangerous driving and this offence placed him in breach of that suspended sentence. He had been disqualified for dangerous driving and was on bail for further offences of driving whilst disqualified and being uninsured. This is of some importance because the Guideline applies to a first-time offender. 23. In this case it seems to us that the judge had regard to all these factors as ones which together raised this to a level 1 case. The sentence that he would have passed was one of 12 years' imprisonment before credit for plea. He gave 15% credit for plea and reduced the sentence to one of 10 years' imprisonment. No issue is raised on this appeal with the percentage credit for plea which the judge gave. 24. Mr Watkins however submits that this was not even a level 2 case but a level 3 case. He submits that the period of dangerous driving, much of which was captured on CCTV, was relatively short and around 3 minutes in total. The roads were all but deserted and the speed, although in excess of the speed limit, was not grossly excessive. 25. We are unable to accept that submission, not least given the nature of the way in which the appellant drove through the junction, which directly caused the collision, and which demonstrated both a complete disregard for the rules of the road and no consideration whatsoever that anyone else might be using the road. The fact that others were using the road and that it was not completely deserted is evidenced by the presence of Mr Gharibyar's car and the passers-by who came to his assistance. 26. The appellant's driving in isolation would, in our judgment, place this offence at least in level 2. What, however, elevates the seriousness of this offence, as the judge rightly in our view said, is the fact that it took place against the background of a still relatively recent conviction for dangerous driving and disqualification from driving, a further offence of driving whilst disqualified and the fact that this offence was committed when on bail. The appellant showed himself to have no regard at all not only for the rules of the road but for the fact that he simply should not have been driving at all. 27. In addition the appellant fled the scene and did not turn himself in to the police for 62 hours after the collision (that is over 2½ days later). It is submitted on his behalf that that is explicable by reason of his previous convictions but that, in our view, far from being a valid explanation, makes matters worse. 28. Taking all these factors into account, in our judgment, the sentencing judge was entitled to elevate the case to a level 1 case. The starting point was therefore a sentence of 8 years' imprisonment and the range 7 to 14 years. The sentence that the judge would have passed but for the guilty plea was therefore towards the top of that range and significantly above the starting point. In our judgment, although the judge was properly entitled to regard the aggravating features as placing the offence in level 1, a sentence towards the top of the range was manifestly excessive. In our judgment, taking account of all the aggravating features a sentence of 10 years' imprisonment would have been appropriate before credit for plea. 29. Giving the same 15% credit for plea as the judge had done gives a sentence of 8½ years' imprisonment. Accordingly the appeal against sentence is allowed and a sentence of 8½ years' imprisonment is substituted for that of 10 years' imprisonment. The period of disqualification is reduced accordingly to 8½ years and the extended period to 4 years and 3 months. The total period of disqualification therefore is 12 years and 9 months. If the maths is wrong in that respect counsel will no doubt correct us in due course. 30. The appeal has however raised a number of further issues which we now address. Firstly, disqualification from driving. The period of disqualification from driving was itself not the subject matter of the appeal other than in so far as it followed from the appeal against the period of imprisonment. However a query was raised on behalf of the Registrar as to whether the period of disqualification was imposed in respect of count 1 only, or whether some period was, or ought to have been, imposed in respect of count 2. It is common ground between the Crown and the appellant that the judge intended to impose that period of disqualification in respect of the headline offence (count 1). We are satisfied that that is the correct position and we are grateful to counsel for their written notes prior to this hearing which clarified that position. 31. In his sentencing remarks the judge also made reference to the requirement for the appellant to take an extended retest before being eligible to apply for a full licence. The appellant was already subject to such a requirement. It would not have been open to the judge to impose that requirement if the appellant was already subject to such a requirement. That follows from section 36(7) of the Road Traffic Offenders Act 1988 and the decision in R v Anderson [2012] EWCA Crim 3060. The judge was clearly aware of the existing requirement and indeed made reference to it in his sentencing remarks. There has been no suggestion that the appellant had already taken such a test. It is again common ground between the Crown and the appellant that the judge's remarks should be construed as a reminder or restatement of the requirement to the appellant and nothing more. We agree. 32. So far as count 2 is concerned, there was no separate penalty, so to that extent the count is immaterial to this appeal. As we have already observed, it is, at best, a curious count. The offence is said to be one contrary to section 3ZB of the Road Traffic Act 1988 (causing death by driving whilst uninsured) but the particulars reflect both that section and section 3ZC (causing death by driving whilst disqualified). The latter is a more serious offence attracting a higher sentence. It appears to have been the intention to charge each of these offences but when the indictment was drafted the two offences were rolled up. Information obtained by Ms Carroll for the Crown indicates that this was intentional. A note on the DCS (dated 4 July 2021) further indicates that the drafter recognised that the count might be duplicitous and that he could amend it if it was. There is no sensible explanation for why two offences under two distinct and materially different statutory provisions were rolled into one. Ms Carroll, whom we emphasise was not responsible for the drafting of the indictment, accepts that the count was obviously duplicitous and we agree. We accept the submissions made to us in writing and in response to the enquiries on behalf of the Registrar that we should quash the conviction on count 2. We do so. The conviction on count 2 is quashed. Since there was no separate penalty that makes no difference to the overall sentence. 33. Lastly, the committal for sentence. As we have said, the summary offences committed on 5 January 2021 were committed for sentence to the Crown Court purportedly under section 20 of the Sentencing Act 2020. There was no jurisdiction in the Magistrates' Court to commit the summary offences for sentence on this basis. However, the summary offences put the appellant in breach of the suspended sentence passed on him on 9 January 2021. It was open to the magistrates to commit to the Crown Court pursuant to paragraph 11(2) of schedule 16 to the Sentencing Act 2020 as the new offences placed the appellant in breach of a suspended sentence passed on him by the Crown Court. 34. We note from the court log that the fact that the breach had not been committed for sentence in this manner was first raised in the Crown Court before HHJ Nield at a hearing on 11 March 2021. It was suggested by the Crown that the failure to commit on that basis could be cured by the Circuit Judge acting as a District Judge. For reasons that are not apparent to us, the Crown then withdrew that proposal and, as recorded on the court log, urged that the matter should be sent back to the Magistrates' Court to go through "the proper process". That did not happen. At a further hearing on 14 May 2021, the same judge asked why the matter had not yet come up from the Magistrates. The judge expressed the hope that the matter would now be dealt with. At a further hearing on 11 June 2021 the appellant was arraigned on counts 1 and 2. The court log reflects that the Crown asked for the committal to be put at sentence but there is nothing to suggest that the committal had by then taken place. On 2 February 2022, when the appellant was sentenced for the offences that form the subject matter of this appeal, the record simply states the breach of the suspended sentence order was put and admitted. The judge proceeded to activate the sentence and sentence for the summary offences. 35. Clarification was sought on behalf of the Registrar from the Magistrates' Court and the defendant's counsel. The response of the Magistrates' Court by email dated 18 March 2022 was that: "In this case it was the Magistrates intention to commit [the defendant] to the CC on the new offences because he was in breach of his SSO and the omission to include the SSO committal is a mis-recording." 36. Counsel, as we have already indicated, provided a helpful response and it is apparent that no issue was taken by the appellant with the activation of the suspended sentence or with the sentences passed on the summary offences. Ms Carroll for the Crown, who appeared at sentencing but not at any of the earlier hearings, also agrees that no issue arises. 37. Our attention has been drawn to the decision of the Court of Appeal in R v Ayhan [2011] EWCA Crim 3184. It is unnecessary to set out the facts of the case but at paragraph 22, the Lord Chief Justice said this: "In our judgment, provided the power of the magistrates' court to commit for sentence was properly exercised in respect of one or more either way offences..., a mistake in recording the statutory basis for a committal of summary only offences does not invalidate the committal. The principle is that thereafter the Crown Court must abide by the sentencing powers available to the magistrates' court in relation to the summary only offences..." 38. That is what happened in the present case. We are satisfied that there is nothing unlawful in this aspect of the sentencing. 39. We have recited this procedural history however because it is clear that this issue was identified by the Crown Court at the outset and never resolved. The upshot is that difficulties have been raised and the time of the courts and counsel wasted in seeking to establish the true position. This was entirely avoidable. 40. So far as those offences are concerned, and since they were committed on an occasion prior to the events giving rise to count 1 on the indictment, the judge ought to have imposed either penalty points or a discretionary period of disqualification in respect of one of those offences. That is the combined effect of sections 28(4), 34(2) and 44 of the Road Traffic Offenders Act 1988. The judge did not do so and it is accepted by the appellant that we should do so. 41. Given the lengthy period of disqualification already imposed and despite the fact that these offences were committed on separate occasions, we consider it appropriate to make the period of disqualification a concurrent one. In respect of the summary offence of driving whilst disqualified, we therefore impose a period of 6 months' qualification to run concurrently. 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_05_26-5342.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/934/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/934

fbc9da4f605e9daff3ac764a1bbc077e218725545026154db62d085b354e9336

[2008] EWCA Crim 544

EWCA_Crim_544

crown_court

No. 2007/05603/D4 Neutral Citation Number: [2008] EWCA Crim 544 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 29 February 2008 B e f o r e: LORD JUSTICE DYSON MR JUSTICE MADDISON and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - ROLAND HOWARD SPENCER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet St

No. 2007/05603/D4 Neutral Citation Number: [2008] EWCA Crim 544 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 29 February 2008 B e f o r e: LORD JUSTICE DYSON MR JUSTICE MADDISON and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - ROLAND HOWARD SPENCER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr A M Large appeared on behalf of the Appellant Mr R Davies appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE DYSON: 1. On 1 October 2007, at Bristol Crown Court, the appellant was convicted on counts 1, 4 and 5 of indecent assault and on counts 2 and 3 of rape. He appeals against conviction by leave of the single judge. 2. The case concerned allegations of sexual assault made by three complainants, JR, DW and NK. The first allegations related to the indecent assault and subsequent rape of JR which occurred in January 1990 when she was 17 years of age. The second complainant in time was DW, who alleged that she was indecently assaulted on one occasion in late 1991 when she was 13. The third complainant, NK, alleged that she was indecently assaulted on one occasion eight years later in 1999, when she was 14 years of age. 3. The appellant was about 31 years of age when he started a relationship with KB who was then about 16 years old. The relationship lasted over 20 years. The couple had a son, Richard, born in 1988. At that time the appellant and KB were running their own taxi business and working hard. In late 1989 KB arranged for her cousin, JR, to come to live with them for a while to look after baby Richard. In January 1990 the family moved into a bungalow in Wells, Somerset. JR remained living there until April, when she moved back home to live with her parents. She alleged that the appellant first assaulted her when KB was working in the taxi office. One evening he was at home with her in the living room. He made advances towards her and told her to lie down on the floor. He lay on top of her and moved as if simulating sexual intercourse. The incident ended when the family's dog jumped in and the appellant shouted at it to stop. JR went to her bedroom and went to bed. Those facts were the subject of count 1. 4. Later that night JR was sleeping as usual in the same room as the baby, who was in his cot. She was sleeping on a camp bed in a sleeping bag. She woke up to find that the appellant had unzipped her sleeping bag, removed her underwear, penetrated her with his penis and was having intercourse with her. She did not know whether he ejaculated before he moved from on top of her. Those were the facts which gave rise to count 2. 5. JR also alleged that the appellant raped her in a similar way on several other occasions. Those facts gave rise to count 3, which was a specimen count of rape. 6. In April JR decided to move back to her parents' home in Devon. In May she told her parents that she had been raped by the appellant. They confronted him in KB's presence. He strenuously denied the allegations. A rift then ensued in the family. JR did not speak to the appellant or to KB for many years thereafter. 7. The next allegation in time related to DW. It was said to have occurred on 15 November 1991, the night of the Wells Carnival. DW was 13 at the time. Her mother and father both worked in the taxi business with the appellant and KB. DW alleged that she had stayed the night of 15 November 1991 with the appellant in the mobile home in which he, KB and Richard were living at the time. Richard was asleep. KB was working in the taxi office. DW, who was alone with the appellant, had gone to sleep on a bench in the living area of the mobile home while the appellant watched television. She awoke to find him kissing her neck and moving his hand down to her breasts and towards the area of her vagina. He did not penetrate her. She rolled over on to her side and he removed his hand. She then went to sleep. She did not tell anyone at the time what had occurred, but a couple of months later she said that she had told her mother what had happened. Nothing was done and nothing was said to the appellant. 8. NK alleged that she was assaulted eight years later, in 1999, when she was aged 14. She together with her brother and sister had been staying for a "sleep over" with the appellant, KB and Richard. Her brother was a good friend of Richard, who by now was about 11 or 12 years old. She alleged that the appellant arranged for her to be alone downstairs when all the others had gone to bed. He then invited her to sit on his knee. He offered to pay £40 for a school trip, which her parents could not afford. He stroked her breasts under her bra and moved his hand towards her groin. She jumped off his lap and went upstairs, where she telephoned her aunt to ask her mother to come to pick her up. Her mother arrived. NK told her what had happened. There was a brief confrontation. NK and her mother left. NK did not want to pursue a complaint at the time, but her mother reported the incident to the police and a record was kept of it. 9. With the exception of the report by NK's mother, nothing was said to the police about what had occurred until May 2006. By this time the appellant and KB were going through an acrimonious separation which had started in late December 2005. KB had involved the police on several occasions. 10. The defence maintained that KB had encouraged the complainants to go to the police to help her win her separation battle with the appellant. It was clear that KB had approached JR through her mother after she had separated from the appellant. She said that this was to apologise for not believing JR when the allegation was first made in 1990, but the defence suggested that it was to stir up trouble for the appellant. 11. DW and NK went to the police within hours of each other on the same day, apparently coincidentally, and DW played a role in putting the police in touch with JR. 12. The appellant denied all the allegations. He suggested that the three complainants must have acted together to resurrect the old allegations made by JR and NK and that DW had joined in the campaign against him. He pointed out that DW's and NK's parents still worked with, and were friendly with, KB, and that JR's mother had a significant amount to lose financially during KB's separation from the appellant. 13. Prior to closing speeches the judge raised with counsel the issue of how the jury were to be directed in relation to the admissibility of evidence on one count to support the evidence on another. At the outset of his summing-up the judge directed the jury as follows: "But you must look at each count separately and it does not by any means follow that your verdict on one count must be the same as your verdict on another count. Of course, you may, in the end, come to that conclusion but you must not start off by saying to yourselves, 'Oh, well, if count 1 is proved then count 2 is proved', because that obviously would be nonsense." Towards the end of his summing-up the judge gave this direction to the jury in relation to the cross-admissibility issue: "I remind you of what I said about treating each count separately, and that is the overarching principle. Mr Large is quite right in stressing that you should not be saying to yourselves, 'There's no smoke without fire'. What should be your approach to the fact that we have three young girls making similar allegations? The first thing you must ask yourselves is: are you sure that the three girls did not put their heads together to make false accusations against the defendant? There are cases, of course, where this does happen. In this case, of course, the allegations are separated by some quite considerable time and the allegations were all made at the time, although in [DW's] case the defendant was not confronted with the allegation. You remember [SW] told us that she said to the defendant, 'My children tell me everything, and I mean everything, Ron' and she hoped that would get through to him but perhaps it did not. If you are not sure that they did not put their heads together to make false accusations it will be quite wrong to take a view that the evidence of one girl provides any support for the evidence of another. If you are sure that the three complainants did not put their heads together to make false accusations, you must ask yourselves whether it is reasonably possible that the three complainants, independently making similar accusations, could all be lying. If it is your conclusion that it is not reasonably possible then you may consider that the evidence of one girl supports the evidence of the others. However, there are two important aspects of the evidence that you must consider. You must look at the degree of similarity between the accusations. The greater the degree of similarity the more likely it is that independent witnesses are speaking the truth. For you may think it would be a remarkable coincidence if they hit upon the same lies. Mr Large, I think, would urge you to say that there is not much similarity between the allegations, and that is a matter for you. You have also to consider whether the three of them have been consciously or unconsciously influenced in their evidence through hearing of the complaints made by the others. If they have been so influenced then you must take that into account in deciding what weight, if any, you give to their evidence." 14. The first ground of appeal is that the judge was wrong to direct the jury that they could treat one count as providing support for another. It is submitted that he should have directed them to treat each count separately. Mr Large submits that the question for the judge was whether to direct the jury that it was open to them to decide that the evidence in support of one count was capable of going to establish the appellant's propensity to commit offences of the kind charged on the other counts. In assessing this, the judge should have had regard to the circumstances of each allegation and the sort of issues identified by this court in R v Hanson [2005] 2 Cr App R 21 at paragraphs 9-12, particularly the nature and number of offences involved and the interval of time between them. Mr Large submits that the allegations made by JR were very different from those made by DW and NK. The indecent assault on JR was forceful and resisted, and was followed by rapes committed while she lay asleep in bed. The indecent assaults on the other two girls did not involve simulated sexual intercourse and were not followed by rapes. Further, the allegations relating to JR pre-dated those made by NK by about nine years. It is conceded by Mr Large on behalf of the appellant that it is more arguable that the allegations of indecent assaults made by DW and NK could be mutually supportive to demonstrate a propensity to commit offences of the type charged, but they were separated by eight years during which time no offending was alleged to have taken place. 15. It seems that the judge was not given much (if any) assistance by counsel as to the approach that he should adopt when deciding whether to direct the jury that one count was capable of providing support for another. It has been made clear by the decision of this court in R v Chopra [2007] 1 Cr App R 16 that the question of cross-admissibility must be determined by an application of the relevant provisions of the Criminal Justice Act 2003 (" the 2003 Act ") and not by an application of the common law rules which found expression in decisions such as DPP v P [1991] 2 AC 447 . The relevant common law rules were abolished by section 99(1) of the 2003 Act . 16. For the purposes of this case the relevant provisions are section 101 which, so far as relevant, provides: "(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if -- .... (d) it is relevant to an important matter in issue between the defendant and the prosecution ...." and section 103 which, so far as relevant, provides: "(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include -- (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; ...." 17. Accordingly, the judge should have considered whether the evidence supporting one count was capable of going to establish propensity to commit offences of the kind charged on the other counts. The judge did not do this. It is clear from the content of the directions that he gave to the jury that he considered that the question of cross-admissibility was governed by the abolished common law rules. 18. For the Crown, Mr Davies accepts that the test for cross-admissibility was relevance within the meaning of section 101(1)(d) and 103(2). He submits that these offences were in reality sufficiently similar to justify their cross-admissibility. Each involved a girl in her early to mid-teens being sexually assaulted by the appellant when staying in his home and when he was in a position of trust. The fact that matters progressed to rape in the case of JR does not of itself make her allegations dissimilar. A further point of similarity is the fact that both JR and DW alleged that the appellant sexually assaulted them or commenced the assaults when they were asleep or believed by the appellant to be asleep. These alleged offences were about 18 months apart. Although the offence concerning NK was in 1999, the facts of that offence are similar to the facts relating to the offence concerning DW. 19. It is clear that the trial judge did not apply his mind to the section 101(1)(d) and 103(2) test. If he had decided to direct the jury that they should consider whether the evidence in support of one count was capable of establishing the appellant's propensity to commit offences of the kind charged on the other counts, we doubt whether such a decision could have been successfully challenged in this court. It seems to us that the real question arising on this part of the appeal is whether the judge gave adequate directions to the jury on the issue of cross-admissibility. 20. Mr Large submits that the jury should have been directed that they should consider the evidence relating to each count separately; that if they were sure of the appellant's guilt on one count, they could use the evidence in relation to that count as providing some support for the Crown's case on the other counts if they were satisfied that a conviction on the first count showed a propensity to commit offences of the kind with which the appellant was charged on the other count or counts; that in deciding whether the appellant had such propensity, they should take into account the nature of the alleged offences, the differences between them and the length of time between the alleged offence against DW and that alleged against NK; that they should be careful not to attach too much weight to a finding of guilt on one count when considering the evidence in relation to another; that they should consider whether all or any of the complainants may have put their heads together and made up false allegations against the appellant; and that they should also consider the possibility that one or more complainants may have been influenced in their evidence, consciously or unconsciously, by hearing of the complaints made by the others. 21. Mr Large makes the following particular criticisms of the directions that the judge gave: first, the judge failed to say that if the jury were not sure that the girls had not put their heads together to make false allegations, they should acquit; instead, the judge said that if they were unsure whether the girls had put their heads together to make false allegations, it would be wrong to treat the evidence of one girl as providing support for the evidence of another. Secondly, he submits that the direction that if it was not reasonably possible that the three complainants could all be lying then the jury could consider that the evidence of one girl supported the evidence of the others went further than the bad character provisions of the 2003 Act . Thirdly, the judge did not give the warning that the jury should not attach too much weight to a finding of guilt on one count when considering the evidence in relation to the other. 22. Mr Davies submits that the judge gave what was required, namely a succinct and readily understandable direction as to why the evidence of one count may be relevant to the jury's deliberations. The jury knew that they had to approach carefully the fact of three complainants making similar sexual allegations, and they had to exclude deliberate collusion or unconscious inference by hearing of the allegations by the others. The similarity was for them to consider and in essence if the allegations were similar, the relevance would be the greater. 23. As to the suggestion that the judge should have directed the jury by reference to propensity, Mr Davies submits that in a case where the evidence of bad character is comprised in different counts in the same indictment, it is artificial and unnecessary to direct the jury of the need to be satisfied that propensity is established before the evidence on one count can be relied upon in support of a finding of guilt on another count. 24. In our judgment the judge's directions were defective in two important respects. First, he failed to direct the jury that they could only take into account the evidence on one count in support of another count or counts if they were satisfied that the evidence showed that the appellant had a propensity to commit offences of the kind with which he was charged in that other count or those other counts. It seems to us that, in the light of the decision of this court in Chopra , it was necessary for the judge to direct the jury in a way which reflected the provisions of sections 101(1)(d) and 103(1)(a). That necessarily imported a consideration of the question of propensity. The judge directed the jury: "If it is your conclusion that it is not reasonably possible [that the three complainants could all be lying] then you may consider that the evidence of one girl supports the evidence of the others." By that direction the judge took the issue of propensity away from the jury. On the basis of that direction the jury could rely on the evidence on one count in support of the case on another count, provided that they were satisfied that the girls were not lying. They did not additionally need to be satisfied as to propensity. In our judgment the lack of a reference to propensity was a material omission. 25. Secondly, the judge did not warn the jury that they should not place undue reliance on the evidence on one count in reaching their decision on the other counts. This, too, was a material omission. In our judgment the judge's directions to the jury should have contained the essence of the points (although not necessarily in the precise words that we have earlier given) which Mr Large submits should have been included. 26. A further criticism made by Mr Large of the summing-up concerns the way in which the judge dealt with the issue of recent complaint. In the course of his summing-up the judge gave no direction as to how the jury should approach the evidence of the first complaints made by each girl. At the end of the summing-up this omission was pointed out by counsel. The judge then said this to the jury: "The point is that the complaints were made pretty soon after, and that is something which you will consider, I have no doubt, in deciding whether they are true allegations." Mr Large submits that this was an inadequate direction. Section 120 of the 2003 Act provides, so far as material: "(4) A previous statement by the witness is admissible of any matter stated of which oral evidence by him would be admissible, if -- (a) any of the following three conditions is satisfied, and (b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth. .... (7) The third condition is that -- .... (d) the complaint was made as soon as could reasonably be expected after the alleged conduct...." 25. The Judicial Studies Board specimen direction on recent complaint where section 120(4) and (7) apply is in these terms: "The law permitted this because X said he believed that [he made] the previous statement [and that it] was true, and because it consisted of a complaint of [part of] the offence now being tried, made by X [to Y] shortly afterwards. If you accept the evidence of X [and Y] about the complaint, the complaint itself is evidence you may take into account, if you think fit, when considering X's liability as a witness and when considering your verdict[s]. ( If the issue(s) arise(s): ) When deciding whether or not to take the complaint into account, consider whether or not it was [made as soon as could reasonably be expected] [made as a result of a threat or promise] [drawn from X rather than being volunteered by him]." 26. Mr Large submits that the judge should have directed the jury how to approach this type of evidence and identified and directed them as to the circumstances in which the complaints were made. In this case JR did not complain to her parents at the time, although she had opportunities to do so when they visited the appellant or when she returned home from her holidays. DW's complaint was elicited in response to questions by her mother some weeks after the events in question, yet no action was taken on the complaint. Only NK's complaint was made contemporaneously. In short, Mr Large submits that the judge should have given a more focused direction on this important aspect of the evidence rather than saying in a broad-brush way that the complaints were made "pretty soon after". Mr Davies submits that the importance of the complaints made at or close to the time of the alleged offences was that they were made at all. The time when the complaints were made completely undermined the suggestion of collusion. To have said more at this stage of the summing-up could only have served to highlight the fact that each girl had given a consistent account close to the time of the alleged offences. 27. In our judgment the criticism of the judge's direction is well-founded. One element of the third condition for admissibility imposed by section 120(7) of the 2003 Act is that the "complaint was made as soon as could reasonably be expected after the alleged conduct". Thus before the evidence of the complaints to JR's mother could be admitted as evidence in support of the case against the appellant in respect of counts 1-3, the jury had to be satisfied that the complaint was made as soon as could reasonably be expected. Far from directing the jury to this effect, the judge took this issue away from them. He said that the complaints were made "pretty soon after". In other words, he directed the jury in effect that the complaints were made as soon as could reasonably be expected so that they should take them into account as part of the evidence against the appellant. In our judgment that was wrong. 28. In our view, therefore, for these reasons this appeal must be allowed. The combined effect of the misdirections on (1) the cross-admissibility point and (2) the recent complaint issue leads us to conclude that these convictions are not safe. 29. Mr Davies, do you seek a retrial? 30. MR DAVIES: My Lord, yes. There is no reason to think that the complainants will not be prepared to give evidence again and my instructions are that if the appeal is allowed, there will be a retrial and that is the application I make. 31. LORD JUSTICE DYSON: Do you seek to resist that? 32. MR LARGE: My Lord, the only observation I can properly make is that these are already old allegations. They date back eighteen years now to 1990, at their oldest, and at their youngest about ten years ago. So these are old allegations, and when considering whether a retrial is in the interests of justice I would ask the court to take that into account. ( The court conferred ) 33. LORD JUSTICE DYSON: We propose to allow the appeal and to quash the convictions on all the counts. There is to be a retrial on all the counts. We direct that a fresh indictment be preferred and that the appellant be re-arraigned on the fresh indictment within two months. There is the question of bail or custody? 34. MR LARGE: My Lord, I do not have an address to put before the court today and I do not have a client here. 35. LORD JUSTICE DYSON: Then we must direct that he remain in custody for the time being and if you want to make an application then you make it to the appropriate court. The question of where the retrial is to take place will be determined by the presiding judge on the Western Circuit. We will make a representation order for the retrial for counsel and solicitor. 36. MR LARGE: My Lord, may I make one point in relation to your Lordships' judgment? 37. LORD JUSTICE DYSON: Yes. 38. MR LARGE: My understanding is that the Judicial Studies Board have removed the direction in relation to bad character, but the direction in relation to cross-admissibility, which is what the learned judge dealt with in this case, is still on the JSB web-site. 39. LORD JUSTICE DYSON: Oh, I see. So that part has not been removed? 40. MR LARGE: The last time I looked, which was in the last couple of weeks, it is still there. Whether your Lordship wishes to say anything about that, of course, is a matter for your Lordship. 41. LORD JUSTICE DYSON: I will check when I receive the transcript. 42. MR JUSTICE MADDISON: It is right that, following the decision in R v Campbell , the existing specimen direction on bad character was removed. That direction cross-referred to direction number 20 on cross-admissibility, but suggested that that direction be given in the context of a bad character direction overall. The bad character direction overall deals with the matters to which my Lord has referred and reminds the jury not to place undue weight on the question of evidence of bad character. But it is right, as I understand it, that the Judicial Studies Board have only removed the direction dealing specifically with bad character. 43. LORD JUSTICE DYSON: There is to be no report of today's proceedings until after the retrial or further order. Thank you both very much.

2008_02_29-1409.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/544/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/544

b4cf39ddde4a12657a7b7615d3828291906eb7d9a038c94a31b9fde381f89131

[2011] EWCA Crim 1212

EWCA_Crim_1212

crown_court

Neutral Citation Number: [2011] EWCA Crim 1212 Case No: 201002690 D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 12 April 2011 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE DAVIS THE RECORDER OF PRESTON - HHJ ANTHONY RUSSELL QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JOHN AUSTIN CHIVERS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave

Neutral Citation Number: [2011] EWCA Crim 1212 Case No: 201002690 D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 12 April 2011 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE DAVIS THE RECORDER OF PRESTON - HHJ ANTHONY RUSSELL QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JOHN AUSTIN CHIVERS - - - - - - - - - - - - - - - - - - - - - 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 S ELLIOTT appeared on behalf of the Appellant MR M CHAMBERS QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: This appeal is against the appellant's conviction for murder on 10 March 2010 at the Cardiff Crown Court before Wyn Williams J. The victim was Paul Jones. He was stabbed to death by the appellant. There were two stab wounds to his chest, each of which penetrated his heart. 2. It happened on the late evening of Monday 3 August 2009 in Columbus close in the town of Barry, where the appellant lived with his partner Dominique Fitzgerald. They had spent most of the day in the pub. Towards the end of the evening they had a disagreement and she left to go home on her own. The appellant was given a lift home by the deceased. They knew each other and had been talking together in the pub. The deceased had another passenger, Painting, who had also been in the pub. 3. When they arrived at Columbus Close, the appellant got out but the deceased did not immediately drive off, for reasons which are immaterial. Shortly afterwards the appellant and Dominique emerged from the house. There was some trouble between them. In the course of it the appellant either pushed or hit her and she fell to the ground, at least to the extent of landing on her knee. Not long afterwards the deceased got out of his car and there was a confrontation between him and the appellant, beginning with words and moving on to blows. There were conflicting accounts about which of them struck the first blow, but a number of independent witnesses said that the deceased struck the first blow. 4. The picture presented by the prosecution evidence was that both men were up for a fight. They were neither of them strangers to violence. Both had a number of convictions for offences of violence, both had been drinking and post mortem analysis showed that the deceased had a high level of cocaine in his blood. In the fight the deceased was knocked or forced to the ground. The two men separated and the deceased went towards the boot of his car to find a tool. Immediately after the fatal stabbing, witnesses who went to the aid of the deceased as he was lying on the ground said that he had a monkey wrench tucked inside the waist of his trousers. Seeing the deceased go to the boot of his car, the appellant disappeared into his house, shortly to emerge bare chested and carrying a large kitchen knife. From that moment on the prosecution evidence was to the effect that the appellant was the aggressor. 5. The witnesses were Painting and various neighbours whose attention was drawn to what was happening, although not all at the same moment and their angles of view were different. There were some inconsistencies, notably about whether the deceased had anything in his hand. Painting described him as having a bar, which it was common ground must have been a reference to the monkey wrench. Other witnesses said that the deceased was empty handed and the prosecution relied in support of their version on the fact that immediately after the incident the monkey wrench was found in the deceased's waistband. There was some suggestion that Painting removed it because he was a friend of the deceased, but the prosecution suggested that it would be unlikely that Painting would have then put the monkey wrench into his waist. There were those differences, but the prosecution witnesses, including neighbours who were not, for the most part, accused of doing anything other than their best to give a true account of events, painted a common picture of the appellant advancing on the deceased with the knife and the deceased backing away from him. 6. The deceased was stabbed twice with the knife and collapsed on the road. There were two areas of heavy blood staining found afterwards. These were in an area where the road was under repair and in the area of a drain a few metres away. The first was the place where the body was found; that was over 30 metres from the front of the appellant's house and over 20 metres from the place where the path leading to the appellant's house met the road. The precise measurements of the other deposited blood were not taken, but from the sketch plan it looks to have been 7 metres or thereabouts towards the appellant's house from the place where the body was found. 7. Before the blood stains were examined by a forensic scientist there had been a light fall of rain but the scientist's evidence was that the appearance of the road was likely to have been much the same at the time of his examination as at the time of the fatality. The judge in summing up to the jury said: "He [that is the scientist] said that there were two substantial deposits of blood and you have seen those in the photographs, and that must have been because the deceased was at those points for longer than where there was simply just a trail of blood. Now, one of those points of course was where he lay in the road, so that is easy, but there must have been another point where he deposited substantial blood into the road. Now, it is a matter for you, but there is eye witness evidence that suggests that immediately after the stabbing he spurted blood and then he walked some distance before collapsing into the road. So that eye witness evidence would appear to be consistent with what Dr Basley found". 8. The appellant's account of what happened was very different. His defence was a combination of self defence and accident. His evidence was that shortly after the episode between Dominique and himself outside their house she had gone inside but, for no apparent reason, the deceased then got out of his car and walked down the path towards the house. He tried to get past the appellant into the house. The appellant stopped him and told him that he was not going in the house. The deceased reacted violently. The appellant tried to calm him down, but without success. After a short physical encounter the deceased went back to his car and the appellant could see that he was going to get something from the boot. Knowing the deceased's violent temperament and that he was on cocaine, the appellant was frightened for Dominique and for her child if the deceased forced his way into the house, which the appellant feared that he had every intention of trying to do. So the appellant went into the kitchen and took the first implement he saw, which was a kitchen knife. 9. His reason for removing his t-shirt had to do with a road accident some years earlier in which he suffered serious injuries, including the amputation of one leg and lasting injury to the other. He was he concerned that if the deceased grabbed his t-shirt he would be liable to lose his balance, so he took it off. 10. When he came out of the house with the knife his intention was purely deterrent; he wanted the deceased to leave. He held the knife in front of him and told the deceased to go, but the deceased was having none of it. The deceased closed on the appellant, swinging what must have been the wheel brace. The appellant jabbed at the deceased to keep him away and that must have been how the deceased received his first stab wound. The deceased, however, continued to fight him, waving the wheel brace. As they grappled they moved backwards and forwards and this rolling fight brought them to the roadside. 11. The second stab wound happened when the appellant stumbled because of his instability, due to his leg amputation. In consequence of the stumble the knife must have gone into the deceased. It was not a deliberate stabbing and the appellant had no intention of causing him death or serious injury. The appellant was not in a temper. He was simply trying to protect Dominique and her child from the deceased. On this account the second stab wound occurred at or about the point where the path met the road. 12. The evidence about where the blood was found was not easy to reconcile with the appellant's account and much more consistent with the version put forward by the on lookers. 13. In addition to leaving to the jury the defences of self defence and accident which the appellant advanced, the judge, after consulting counsel, also left to the jury the possibility of convicting the appellant of manslaughter by reason of provocation, which the appellant's counsel did not ask the jury to consider and indeed was contrary to the appellant's case. The judge gave the jury written directions on the principal matters of law, including provocation, which he had circulated to counsel in advance and which counsel agreed were appropriate. 14. Three grounds of appeal are advanced by Miss Elliott, who did not appear for the appellant at trial. The first ground is that the judge failed to direct the jury properly on provocation. The judge said: "Because the prosecution must prove the defendant's guilt, it is for the prosecution to make you sure that this was not a case of provocation. The defendant does not have to prove that it was. You may wonder why it is that you are called upon to consider the partial defence of provocation when the defendant has never said that he was provoked. The reason is that experience has shown that sometimes defendants do not put forward partial defences when their primary defence is that they are not guilty of any offence, yet there may be evidence in the case which, if accepted by a jury, would support the partial defence. In those circumstances, fairness demands that the jury consider that possibility." He continued: "Provocation has a special legal meaning and you must consider it in the following way. You must first ask yourselves whether the defendant was provoked at all. In law, a person is provoked if he is caused suddenly and temporarily to lose his self control by things that have been said or done to him by the deceased. It must be things which are said or done which causes the loss of control, the defendant cannot simply rely on his own bad temper. Now, in this case there is evidence relating to the deceased's behaviour that night which, if accepted by you, might lead to you to conclude that the deceased's behaviour was capable of causing a sudden loss of self control on the part of the defendant. The evidence to which I refer was given by the defendant but supported, at least in some respects, by other witnesses. It was to the following effect: the deceased walked quickly down the drive of 31 very shortly after the defendant had emerged from his house and demanded to be let into the house for no good reason. He then threw punches at and abused the defendant on the drive of the defendant's home. Having been knocked to the floor by the defendant, the deceased then returned to his car to get a weapon and then proceeded to attack the defendant with it, albeit he did not manage to land a blow. Such conduct could be conduct which was capable of being provoking." 15. Miss Elliott accepts that this was a fair summary of the conduct which was capable of being regarded as provocative. 16. Having identified the evidence of conduct which a jury could find amounting to provoking conduct, the judge directed them about the need to consider whether the appellant in fact lost his self control, or may have done, and, if he may have done, whether they were sure that a person having the power of self control of an ordinary person of the appellant's sex and age would not have reacted as the appellant did. 17. The judge then turned to the facts. He reminded them of the age, height and weight of the deceased and the appellant. The deceased was aged 41, 5 foot 5 inches tall, and weighed 11 and a half stone; the appellant was aged 30, 6 foot 2 inches tall, and weighed about 14 stone. A little later, the judge referred to the appellant's disability. He said: "You know that the defendant has part of his leg amputated below the knee, and you know that his other leg was the subject of a significant injury in a road traffic accident. Bear that in mind when you are considering events, in particular in the street. Bear that in mind when you are considering why it was that the defendant's t-shirt was removed at one stage. Those issues must be looked at together." 18. Complaint is made that the judge should have made specific reference to the appellant's disability as part of his legal direction on provocation, because it was capable of affecting the gravity of the provocation and therefore the jury should have been told to take it into account when assessing the gravity of the provocation. 19. Where provocation consists of violent or threatening behaviour, the threat level is obviously a matter of relevance in considering the partial defence of provocation, just as it is in considering the full defence of self defence. The proportionality of the level of actual or threatened violence to the level of the reaction is relevant when considering whether the reaction was reasonable and therefore lawful or, if it went beyond what was reasonable, whether the reaction was the product of a loss of self control leading the defendant to act as a person of ordinary self control might have done in the same circumstances. 20. The appellant never said that he took a knife because he was not confidant of his ability to stop the deceased from forcing his way into the house because of the appellant's disability. The only link he drew between his disability and his conduct related to his removal of the t-shirt. Nevertheless, just as the prosecution relied on the disparity between the two men in height and build to suggest that the appellant had an in-built advantage if it came to a fight between them, so the defence were entitled to suggest that this was offset, or on his case perhaps more than offset, by the appellant's disability. 21. The judge reminded the jury of these different evidential points when reviewing the facts. There was no more need for him to incorporate the reference to the appellant's disability in his directions on provocation than there was to incorporate it in his direction on self defence, about which there is no complaint. This was not a case where the provocation was directed to his disability, as if for example the deceased had taunted the appellant about it and suggested that the appellant was no match for him. If the judge had, as part of his legal directions, specifically directed the jury to consider the degree to which their respective physical characteristics were relevant to the threat level presented by the deceased, it is hard to see that this would have been to the appellant's advantage. 22. Miss Elliott submitted that there was another respect in which the appellant's disability went to the gravity of the suggested provocation and which required a specific direction. This was the effect which the disability had on the mind of the appellant in the circumstances which occurred. As has already been made plain, the appellant did not in his own evidence suggest that the impairment of his mobility had any effect on his mental state, as distinct from simply his ability to balance himself, but Miss Elliott relies on what he said in one of his police interviews, in particular a passage where he described himself as follows: "I am paranoid. I have got one leg, I am a paranoid person." 23. To have reminded the jury specifically of that passage in the defendant's interview, in circumstances where the defence being advanced by the appellant was that he had remained calm throughout, would have been distinctly unhelpful to the appellant's case. When a judge considers that he has to direct a jury on a defence of provocation which is directly contradictory to the case being advanced by the appellant, the judge has to be careful. The more he says to support the idea that the appellant lost his self control, the more such comments will, or are likely to, appear to weaken the primary case being advanced by the appellant. The judge had, as mentioned, discussed his proposed directions with counsel on both sides. In our judgment, no criticism can be made of the way in which he directed the jury on provocation. 24. There is also some unreality about the suggestion that manslaughter by reason of provocation may have been an available verdict for the jury on the facts of this case. One of the problems resulting from the Homicide Act 1957 , as it was interpreted, was that judges not infrequently felt bound to leave the issue of provocation to the jury in circumstances where it was quite unrealistic. Complaints about this were part of the cause of amendments to the defence of provocation recently introduced by Parliament. The present case is a good illustration. The appellant's evidence was that he did not lose his self control. There was a good deal of evidence that both the deceased and the appellant were in a temper, but killing in a temper is not a defence. There was no evidence to conclude that the appellant was incapable of controlling his actions. Moreover, it would have been perverse for any jury to conclude that a person of ordinary self control might have acted as the appellant did in coming out of his house armed with a kitchen knife, advancing down the path to the roadway as the deceased backed away, and deliberately stabbing him through the heart. 25. The second ground of appeal concerns the form of direction given by the judge regarding the appellant's previous convictions for offences of dishonesty. At the close of the prosecution case the judge gave permission for the prosecution to put in evidence the previous convictions of the appellant, both for violence and for dishonesty. In relation to the dishonesty convictions, he did so because of the way in which the defendant had attacked certain prosecution witnesses, which went beyond disputing the accuracy of their evidence and included accusations of lying to the court. 26. The appellant originally sought leave to appeal against the judge's decision to admit evidence of the dishonesty convictions but that was refused by the single judge and the application has, sensibly, not been renewed. The criticism we have to consider is not that the judge was wrong to admit the evidence but that he was wrong in his direction about it. 27. The way in which the evidence was introduced following the judge's ruling was that the jury were provided with written admissions, one of which was as follows: "The defendant has the following relevant convictions for offences of dishonesty ..." There followed a list of eight convictions over a 20-year period between 1998 and 2008, the latest of them being in May 2008. The convictions were for aggravated vehicle taking, shoplifting, obtaining property by deception, taking a motor vehicle without consent, theft, handling stolen goods, obtaining by deception, and theft. The prosecution relied not on the particular seriousness of those offences, because they were not particularly serious as offences of dishonesty go, but on their number. 28. The judge began his directions about character by dealing in some detail with the evidence about convictions for violence of both the appellant and the deceased. He repeatedly emphasised that they were part of the overall material and that the jury should not exaggerate their importance. He finished his direction about the appellant's previous convictions as follows: "We also know that the defendant has convictions on seven separate occasions for dishonesty, and if you turn over the page, members of the jury, in the admissions, you will see that at paragraph 15 they span the period 16 March 1998 to 7 May 2008. These convictions demonstrate that the defendant has in the past acted dishonestly. What is their relevance? They are relevant only to the issue of the defendant's credibility. As is obvious, the defendant's credibility is a very important issue in this case. You are entitled to take into account when assessing whether or not you accept the defendant's evidence the fact that he has been convicted on a number of occasions of offences of dishonesty. Put bluntly, these convictions do not assist the defendant when he asks you to believe what he told you about the events of 3 August, but you must be very careful not to jump to the conclusion that the defendant's evidence to you is untruthful simply by reason of these convictions. They are a factor to be taken into account but no more than that, and just as with the convictions for violence in relation to the issue of propensity to commit acts of violence, so you must be careful that you do not exaggerate the importance of these convictions when considering the appellant's credibility." 29. The criticism made is that this direction highlighted and emphasised the appellant's past convictions for dishonesty, whereas it ought, if anything, to have played down their significance. 30. Miss Elliott has cited the case of Edwards and Chohan [2006] 1 Crim App R 3 , [2005] EWCA Crim 1813 in which the Court of Appeal cited with approval a summing up in Chohen's case in which the judge said: "You are entitled to consider the evidence of Mr Chohen's previous convictions in the following way. If you think it right you may take into account when deciding whether or not his evidence to you was truthful, because a person with convictions for dishonesty may be less likely to tell the truth, but it does not follow that he is incapable of telling the truth." 31. We find difficulty in seeing any distinction in substance between that direction and what the judge said in the present case. In both instances the jury were told that they might take into account the past convictions for offences of dishonesty because somebody who has acted dishonestly in the past may be less likely to be reliable in their evidence on another matter, but that the jury should not jump to the conclusion that just because they have been dishonest in the past they are therefore not to be believed on this occasion. 32. The criticism ultimately came down to the judge's use of the single phrase "Put bluntly, these convictions do not assist the defendant when he asks you to believe what he has told you about the events of 3 August". That was a statement of reality but it was immediately tempered by the direction that they must be careful not to jump to the conclusion that he was therefore being untruthful on the present occasion and by the further direction that the jury must be careful not to exaggerate the importance of the convictions. 33. Reading the direction as a whole we can see nothing objectionable in it. The overriding impression given was that, while these convictions were a factor to take into account, the jury should not attach undue significance to them. 34. The final ground of appeal relates to the judge's direction about the inference which they might draw under section 34 of the Criminal Justice and Public Order Act 1994 . Although the terms of the section are very well known, we set them out because of the particular argument in the present case. The section provides: "1) Where, in any proceedings against a person for an offence, evidence is given that the accused (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings ... being a fact which, in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, section (2) below applies. (2) Where this subsection applies ... (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper." 35. The appellant was interviewed on six occasions. In the first four interviews he answered questions put to him. He declined to answer any further questions in the fifth and sixth interviews. The prosecution identified a number of matters on which the appellant relied in his defence and which he had not mentioned in his first four interviews, or obviously in the fifth or sixth interviews. The judge considered three of these to be of sufficient potential significance to merit being put to the jury as matters capable of giving rise to an adverse inference. The most significant of them was the appellant's claim that the second stab wound was accidental and happened when he had stumbled. This had not been mentioned by him in any of his interviews. 36. Dealing with the first four interviews the judge said: "The answers he gave in those interviews, you may think, were substantially or generally consistent with the evidence which he gave in court. Like counsel, I am not going to read large chunks of these interviews to you, but I specifically draw to your attention the following passages and ask you to read them carefully when you retire." He then referred to certain pages in the interviews where the appellant had set out his account of what had happened. The judge continued: "Now, I am not suggesting that you ignore the rest of the interviews, but it seems to me that it is in those passages where the defendant gives most details of the account which he has given to you in court and, as I have said, in general terms at least, they are substantially consistent. Because they are substantially consistent you can take that into account in his favour when assessing his credibility, but I have used the words 'substantially consistent' because they are not entirely consistent, as you heard from the submissions of Mr Jones in particular." The judge then proceeded to identify the three matters not mentioned in those interviews and which the jury might regard as significant omissions of matters which he was later to rely in his evidence. 37. The judge then moved on to the fifth and sixth interviews, about which he said: "Now, you also know that the defendant did not answer any questions put in interviews 5 and 6. You may think, although it is a matter for you, that the questions being put in interview 5 in particular were important ones, because that was when the various eye witnesses' versions of events were being put to the defendant. And it is obvious, is it not, that there is a big difference between what some of the eye witnesses say and what the defendant has to say. So this would have been his opportunity to rebut what the eye witnesses were saying to the police and yet he chose to say nothing. He gave evidence to you that he did not answer the questions in his fifth and sixth interviews on the advice of his solicitor. He told you that he wanted to answer the questions, that was his evidence, but he reluctantly accepted the advice which his solicitor gave him. If you accept the evidence that he was so advised it is obviously a very important consideration in deciding whether to draw an adverse inference against the defendant. A man in the position of a defendant facing a potential murder charge you may feel is obviously going to be influenced by what his lawyer tells him, but the fact that you may accept that he was given that advice does not automatically prevent you from drawing an adverse conclusion from his silence." The judge developed that theme and then continued: "Also remember, as he himself said at the beginning of the fifth interview, that he had already given a detailed account in the first four interviews. All that said, it is open to you to draw an adverse inference against the defendant in relation to his silence in interviews numbers 5 and 6, however, just as I told you in relation to the failure to mention facts in interviews 1 to 4, you can draw an adverse inference only if it is fair and proper that you should do so and that you are satisfied of three things, first, that when he was interviewed he could reasonably be expected to mention facts in those interviews or answer questions about which he was being asked and about which he now relies; second, that his own explanation in not answering questions or remaining silent is that his answers really would not have stood scrutiny when subjected to proper analysis; and third, that the prosecution case against him is that it is sufficiently strong to call for an answer. Now let me draw this together. The failure to mention facts or the remaining silent is but one part of the case. You can not and should not convict the defendant of any offence simply on the basis of these failures, but if you conclude that they are failures in the way that I have described, you can use them to support the prosecution case." 38. There is, in our judgment, a defect in that passage. Whereas in relation to interviews 1 to 4 the judge identified the matters relied on by the appellant in his evidence which he had not mentioned in his interviews, when it came to interview 5 he said only: "There is a big difference between what some of the of the eye witnesses say and what the defendant has to say". He did not identify those matters or, more particularly, what matters were being relied on by the appellant in his evidence which he might reasonably have been expected to mention in interview. The feature of reliance is important. 39. In point of fact, the judge would not have been able to do so, for this reason. The evidence before the jury about interview 5 was a written summary. The interviewing officer began by recording that the police had given disclosure of statements made by some of the witnesses in the street and he continued: "Before I go into what the witnesses have said, following your consultation with [your solicitor] is there anything further you would like to say about this incident?" The appellant replied: "Well I, truthfully, I've -- I've -- I feel like I -- I've given you -- give enough explanation of what I'm going to say. It's four tapes it has gone on for now. I have been instructed not to say anything else." The officer said that it was nevertheless for the appellant to decide whether he wished to answer the questions which he was now going to be given an opportunity of answering. The summary continued and concluded as follows: "The officer then read to the defendant the accounts of various witnesses (who are not named). The defendant exercises his right to remain silent and replies 'no comment' to all questions." 40. Quite properly, the jury did not have the witness statements. Nor were they given details of any specific question which was put to the appellant. So they had no means of knowing whether something on which he relied in his evidence was a matter which he could reasonably have said in answer to some question put to him, when they had no knowledge of the form of questions which were put. 41. Mr Chambers QC, for the prosecution, submits that the jury was entitled to infer that what must have been read out in the interview and formed the subject of the questions was what various eye witnesses in fact went on to say in their evidence. That is an incorrect approach. As we have mentioned, quite properly the jury were not supplied with the prosecution witnesses' statements to the police, and it would have been wrong for prosecuting counsel to have said to the jury, "Members of the jury, I would like you to know that all my witnesses have come up to proof". If it would be wrong for him to say that overtly, it would be equally wrong to invite the jury to infer that this must have been the case, to guess what questions based on that evidence had been put to the appellant, and to conclude that matters on which he now relied in his evidence were matters which he ought to have mentioned in answer to some particular question previously put. 42. In his skeleton argument, which he amplified in his oral submissions, Mr Chambers identified three particular matters which he said the appellant should have mentioned in the no comment interviews and only came out with at the trial. Two of these were concessions that evidence given by certain prosecution witnesses was correct. The argument ran that it could be inferred that the appellant was guilty because he had declined to take an earlier opportunity of conceding that facts asserted by the prosecution were correct. There is a serious error in this approach. As a general proposition, a jury cannot draw an inference of guilt from the appellant saying something in evidence which is accepted on all sides as being true, merely because he had not said it on a previous occasion. That would be tantamount to treating mere silence as evidence of guilt, which is not the law. Section 34 is aimed at somebody who produces a positive explanation relied on in evidence when, if truthful, he might have been expected to have mentioned it on a previous occasion. If it is accepted as being truthful, the premise for suspecting that it is a late false attempt to deceive the jury disappears. 43. There is high authority about the correct approach. In Webber [2004] UKHL 1 , [2004] 1 WLR 404 Lord Bingham, delivering the opinion of the appellate committee of the House of Lords, said at paragraph 28: "In R v Wisdom [unreported] 10 December 1999, Court of Appeal, an important point was established. That rarely, if ever, could a section 34 direction be appropriate on failure to mention an admittedly true fact at interview. Since the adverse inference in question is that a matter not mentioned at interview is likely to be untrue, there is no room for the inference if that matter is agreed to be true. This approach was followed by the Court of Appeal correctly in R v Kenneth Jones [2003] EWCA Crim 3080 ." 44. In his conclusion, Lord Bingham said, at paragraph 33: "Since the object of section 34 is to bring the law back into line with common sense, we think it clear that 'fact' should be given a broad and not a narrow or pedantic meaning. The word covers any alleged fact which is in issue and is put forward as part of the defence case. If the defendant advances at trial any pure fact or exculpatory explanation or account which, if it were true, he could reasonably have been expected to advance earlier, section 34 is potentially applicable." Webber has been followed more recently in this court, for example in Wheeler [2008] EWCA Crim 688 . 45. When the appellant in his evidence accepted that the stabbing had happened in the road, as prosecution witnesses asserted, this was not something upon which he was relying to exculpate himself; he was merely accepting something which was, by his acceptance, an agreed fact. It was not a matter which could properly give rise to an inference under section 34 . 46. In the circumstances of the present case, we consider that the appellant's solicitors' advice to offer no comment in the fifth interview was well understandable. The appellant had been interviewed at length on 5 August about what happened on the occasion of the killing, and he had been questioned and had answered questions on the following day about his relationship with Dominique, Painting and others. Transcripts of those interviews ran to 120-pages. As the judge said in his summing up, the account given by the appellant accorded with the substance of his evidence, apart from his failure to mention the three matters about which the judge gave a tailored direction. 47. In the fifth interview it appeared that the police were proposing not simply to ask him questions about some particular point of importance on which they had fresh information that could be summarised, or on which the appellant's previous answers had been unclear or contradictory. Rather it appears that they were proposing to question him line by line on the statements of various witnesses. We have not seen a full transcript of the interview but we were told that it ran to a large number of pages. From the prosecution's submissions today, it seems that the real point that the police wanted to ask the appellant about could have been put quite shortly. It was that the police now had a body of evidence that the appellant had advanced towards the deceased, who had retreated hands in the air. However, what transpired was not that they put some question simply designed to elicit his answer to that point. What they embarked on was something much more in the nature of pre-trial cross-examination, albeit that Mr Chambers demurs at the use of the word "cross-examination". 48. The appellant's solicitor's view that his client had said enough to explain his case was a fair view and we do not consider that it would have been fair to draw an adverse inference from the appellant declining to be questioned at that stage on every sentence in every witness statement. We reiterate that we are not here dealing with a case in which the appellant had prevaricated in explaining his case in previous interviews or where the purpose of the further questions was simply to fill some particular gap or to clarify some uncertainty arising from his evidence, or to obtain his comment on some new point which was of such importance that he should have an opportunity to comment on it. 49. However, we do not consider that the wrong direction about the no comment interviews in an otherwise impeccable summing up makes the conviction unsafe. The jury were entitled to draw adverse inferences from the appellant's failure to advance matters on which he later relied in evidence when he had the opportunity to do so, subject to provisos which the judge mentioned. 50. Accordingly, this is not a case in which no section 34 direction should have been given. A section 34 direction was appropriate. The defect was in adding the passage mentioned about the no comment interviews. 51. Miss Elliott submitted that this significantly changed the case against the appellant to his detriment. We are not so persuaded. The case against the appellant was powerful. We do not believe that there is any real possibility that the verdict could have been different if the jury had been told that, whilst they might draw adverse inferences from his failure in the first four interviews to say, for example, anything about the fact that the second stabbing was accidental, they should attach no significance to the fifth and sixth interviews. 52. Four weeks ago the appellant's solicitors requested an adjournment of the present hearing because they wished to investigate the possibility of advancing an entirely new defence, namely diminished responsibility. The request was refused but counsel was informed last week that if the appeal were not allowed on the grounds advanced the court would be prepared to hear argument why the appeal should not be dismissed at this stage but should be adjourned. Counsel was also told that the court would expect to see draft further grounds of appeal based on the material available and would expect there to be a waiver of privilege in respect of the further grounds, because the suggested further grounds involve criticism of the appellant's previous legal team. 53. There is before the court a report dated 12 December 2008 from a psychiatric registrar, Dr Menon, who had assessed the appellant after he was admitted to the University Hospital of Wales following an act of self harm. The report was addressed to the Mental Health Team at the Amy Evans Memorial Hospital. It recorded that the appellant's parents had noted a steady increase in his aggressive behaviour and impulsive overdoses since his road traffic accident in 2003, in which he lost his leg. The report concluded: "Impression: ? anti-social personality disorder; ? mental and behavioural disorder due to multiple substance misuse; ? organic personality disorder. Given his history of brain injury, impulsive acts of self harm in the form of overdoses, and concerns raised by his parents, I should be grateful if you would kindly consider assessing this gentleman and offering him the necessary support." 54. It is apparent from the material before the court that the solicitors acting for the appellant at the time of his trial obtained his general practitioner's notes, which included Dr Menon's report and also a file note of Dr Menon dated 12 December 2008 in which he had said that the appellant was: "Pretty volatile and likely to get into trouble ... he was likely to kick off." It appears that those then representing the appellant took the view that to introduce evidence of that kind would be deadly to the defence which the appellant was seeking to advance. In that respect, they were plainly right. 55. Miss Elliott's submission was that the lawyers ought to have investigated the case further and given the appellant advice about a possible defence of diminished responsibility being available to him. The court also has now a report by a consultant psychiatrist, Dr Turner, who says that the material in Dr Menon's report gives rise to a distinct possibility that the appellant is and was suffering from mental disorder. It is clear from statements made by the appellant's parents and Dominique that they had been worried for a long time about his mental health and did not consider that this was properly investigated at the time of the trial. However, there is no evidence to suggest that the appellant's mental disorder, such as it may have been, impaired his self perception, that is to say his knowledge of how he was likely to behave and had behaved or his ability to give instructions to his lawyers about what had happened. Indeed, the reference in his interview with the police to him being paranoid showed him having some self awareness. 56. The fact is that he gave to the lawyers acting for him an account of events which, if true, would have resulted in his acquittal, but which the jury rejected as untrue. He now seeks to advance an alternative defence, contrary to the defence which he chose to advance at trial. This is not one of those rare cases in which there is evidence to suggest that a mental disorder which caused a defendant to kill also caused him to be incapable of giving proper instructions to his lawyers. His lawyers cannot be criticised for failing to explore the possibility of him being able to demonstrate to the jury that what he was advancing as his primary defence was quite untrue but that he may have had a partial defence, the proof of which would lie on him. 57. This court has recently emphasised that, while it is always a matter within the court's ultimate discretion whether justice requires it to admit fresh evidence under section 23 of the Criminal Appeal Act 1968 , it would be rare to do so where the effect of the new evidence is to try to advance a defence inconsistent with the instructions which he gave to his trial lawyers and where his capacity to give such instructions was unimpaired: Erskine [2009] EWCA Crim 1425 . We are not persuaded that it is in the interests of justice that this appeal should be adjourned in light of the material now placed before us. 58. We conclude that the appeal should be dismissed.

2011_04_12-2702.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1212/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1212

e97b1361784fe3bcbcd19d1a43590d58d805f4d0b9acca722d6b1b5163750a3a

[2007] EWCA Crim 3218

EWCA_Crim_3218

crown_court

No: 200705335/A4 Neutral Citation Number: [2007] EWCA Crim 3218 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 11th December 2007 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE MACKAY MRS JUSTICE COX DBE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - - ATTORNEY-GENERAL'S REFERENCE NO 85 OF 2007 (JON BUSHELL) - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcr

No: 200705335/A4 Neutral Citation Number: [2007] EWCA Crim 3218 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 11th December 2007 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE MACKAY MRS JUSTICE COX DBE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - - ATTORNEY-GENERAL'S REFERENCE NO 85 OF 2007 (JON BUSHELL) - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss B Cheema appeared on behalf of the Attorney General Mr L Marshall appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE THOMAS: This is a Reference, under section 36 of the Criminal Justice Act 1988 , by the Attorney-General of a sentence imposed upon John Bushell on 18th September 2007. 2. The offender is now 27 years of age. He was tried with a co-defendant at Oxford Crown Court before His Honour Judge Hall and a jury on two counts of attempted murder and two counts, under section 18 of the Offences Against the Person Act 1861 , of causing grievous bodily harm with intent as an alternative. He was convicted of the two offences under section 18 and his co-defendant was acquitted. 3. It is possible we think to do justice to the facts of the case by summarising them in this way. The offender and his co-defendant were engaged in building work at Milton Keynes and staying at a hotel in Stony Stratford. On the evening of Saturday 4th November 2006 they went drinking at one public house and then moved to another. At the second of the public houses there were two others, Brian Lydon, then 28, and Detcho Stoyanov, who was then 35. 4. There was an incident which had nothing to do with the offender or co-defendant but did involve Brian Lydon. This resulted in a brawl outside the pub, which involved both Brian Lydon and the offender. They got into a fight. The offender was punched and kicked by Brian Lyndon and his brother. He ended up with two black eyes and bruises to his face. 5. Brian Lydon and Detcho Stoyanov left and walked home. The offender left after exhibiting a display of temper against one of the bouncers and indicating that he wanted to attack those who had started the brawl, got into a white van and went, not towards the hotel at which he had been staying but in the same direction in which Brian Lyndon and Detcho Stoyanov had gone. They caught up with the two men. It is clear that a murderous assault occurred. A witness saw a metal bar, some half a metre long, being used by the offender on Brian Lyndon, on the back of the head and further blows with this metal bar being delivered to him when he was on the ground, whilst the offender held Brian Lyndon with his other hand. It is clear that he had attacked Detcho Stoyanov earlier. He was already on the ground and he was seen to attack him again with the iron bar. The offender only stopped when the person who witnessed it sounded his horn. 6. The offender was arrested not long after the incident. He denied that he was the person who had made the attack and said he was elsewhere at the time. 7. The injuries were horrific. Detcho Stoyanov was rendered deeply unconscious by the attack. There were multiple fractures to his skull and many small fragments penetrated into his brain. There was an underlying extradural hematoma. It was assessed that he had a 5 per cent chance of survival. Death was therefore almost inevitable. A pathologist conducted an ante-mortem examination, which revealed he had received four separate impacts, sufficient to split the skin and cause significant brain injury. 8. The assessments that were available at the trial of the degree of injury were following: Dr Pitman, in an assessment dated 25th July 2007, stated Detcho Stoyanov was bed ridden, that his disability was such that he could not manage his personal care, he was incontinent, that he uttered single words and phrases which he repeated and it was unclear how much he understood. Observation of his limited communication suggested that he had impaired cognition, exhibited signs of frustration, agitation and depression. He was being fed via a tube to his stomach. At the time of the trial he remained severely brain damaged. He had spastic tetraplegia with severe spasticity. He had associated severe flexion contractures in all four limbs and only limited movement of his neck. He was in constant faeces and used a catheter. He had bedsore infections and urinary tract infections. He had been sent to a neuro rehabilitation unit in Aylesbury for ongoing care. 9. His father had made a victim impact statement pointing out how much his family had depended upon him, that is to say not only his partner and his child by also his parents in Bulgaria to whom he had given financial assistance. It is quite clear that the prognosis was very bleak. 10. As to the other victim, Brian Lyndon, he sustained multiple skull fractures and a bi-frontal extradural hematoma with compression of the brain. He was hospitalised for two weeks. He suffers from post-traumatic amnesia for 16 to 18 hours from the time of the attack; this is a condition associated with moderate brain injury. His current position was summarised by the clinical psychologist, Dr Turner, who had carried out two neuro-psychological assessments of Brian Lydon. His conclusions were that although he appeared to have made a reasonably good recovery from his injuries, his neuropsychological profile and self-reported symptoms displayed features associated with moderate to severe brain injury. Some of those features might resolve spontaneously but others might be more enduring and the long-term consequence of brain injury was difficult to estimate; he needed regular reviews. 11. In his victim impact statement Brian Lyndon described the reduced movements, particularly in his right hand, the permanent lump that he has on the left side of his head and other physical attributes of the injury. After an interval of six weeks he was fortunate enough to be able to return to work, but felt loss of self-confidence and general competence and had abandoned his opportunity to venture into a new business. 12. The offender has a large number of previous convictions resulting from 18 separate court appearances. Most were offences of dishonesty and driving offences but his record of violence can be summarised as follows: in January 1997 he was convicted of two counts of assault occasioning actual bodily harm and one count of obstructing a police officer. He was given a community service order of 100 hours a week. He had attacked a 16 year old by punching and kicking him, causing him minor head injuries. He gave as a reason for the dispute that he had a long-standing dispute with a friend of the victim. On 8th May 2000 he pleaded guilty to an offence under section 4(1)(a) of the Public Order Act 1861; he was drunk in a public car park on the seafront, acting in a drunken group and caused damage to parked vehicles. He was sentenced to a 12 month conditional discharge. On 12th February 2003 he pleaded guilty to assault occasioning actual bodily harm. He had assaulted a landlord of a public house with a pool cue, hitting him three times causing injury. He was sentenced to 6 months' imprisonment. Finally, on 15th March 2006, the offender pleaded guilty to common assault and was sentenced to 3 months' imprisonment and a 24 month licence premises exclusion order. He had assaulted a publican by biting him on the finger and drawing blood during an argument. 13. It was accepted by counsel for the offender that either a life sentence or a sentence of imprisonment for public protection should be passed. That was accepted in the light of his previous convictions and the seriousness of the current offence. The judge indicated that a sentence of imprisonment for public protection was appropriate. It was submitted that in selecting the determinate period, the judge should exclude the element normally imposed in a determinate sentence for public protection. 14. In his sentencing remarks the judge described the injuries sustained and said: "This was a savage attack on two people and you must have wielded that bar to great and very damaging effect and you must have caught them by surprise as they were walking peacefully home." He passed a sentence of imprisonment for public protection; the determinate period would have been 12 years and, in accordance with the statutory provisions, that resulted in a minimum period of 6 years less the 313 days spent on remand. 15. It is submitted by the Attorney-General that in the circumstances of this case, the judge failed to fix a determinate sentence that reflected the very high degree of culpability and the harm caused, particularly as the judge had failed to take into account the fact that there were two victims. 16. There were clearly the following aggravating features to these very grave offences. First, there was premeditation in that the offender had armed himself with a metal bar and gone deliberately to find the victims. He attacked the victims by surprise, at night and from behind. He continued to attack the victims when they were on the ground. He only desisted when he was seen. The injuries which we have described were of extreme severity. It was a revenge attack. 17. It can therefore be seen that there was a high degree of culpability, resulting from the fact that it was a premeditated attack, that it had been committed whilst under the influence of drink, a weapon had been used and he had failed to respond to his previous punishments. 18. There is only one possible mitigating factor, and that was that there was a small degree of provocation resulting from the earlier matters, but the attack went way beyond anything that could be conceivably be thought proportionate. It is also clear that this was a case where there was a very serious degree of harm to two people in the manner we have set out. 19. We have been referred to a number of authorities but we think it is only necessary to refer to one so that we do not add to the accretion of authority: Attorney-General's Reference No 1999 of 2005 ( R v Gary Flynn ) [2006] EWCA 228, [2006] 2 Cr App R(S) 76. At paragraph 18 of the judgment of the Court given by Keene LJ, the Court said, summarising the submissions of the Attorney-General: If and in so far as the court is considering a commensurate sentence of finite length, reliance is placed on two authorities: Moore and Feeney [2003] EWCA Crim. 3698 , [2004] 2 Cr.App.R (S) 153 and Desourdy [2003] EWCA Crim 3727 , [2004] 2 Cr.App.R (S) 188. Those are said to provide guidance as to the appropriate length of sentence for a section 18 offence with consequences of the very gravest kind, as in the present case," where the victim was in a quadriplegic state. They indicated it was said a sentence of 12 years after a trial or in the range 9 to 10 years after a plea of guilty. 20. It is, we think, unnecessary to refer to the other cases, although our attention was drawn to R v Moore & Feeney [2003] EWCA Crim 3698 , [2004] 2 Cr App R(S) 30, where the victim was in a vegetative state as a result of a severe attack, and the court reduced the sentence of 15 years to one of 12. 21. It seems to us that it is clear from the authorities, and it is not seriously disputed before us, that a sentence in the range of 12 years would have been appropriate, if there had been but one victim in the present case. However, this is a case where there were two victims who had sustained very serious injuries, one more serious than the other. It is also clear that there was nothing to guide this very experienced trial judge who had, unlike us, the benefit of seeing the whole of the evidence as it emerged during the trial. 22. However it does seem to us that in a case where there is a very high degree of culpability, as is the case here, and there is a very high degree of harm, with two victims, that the fact that there are multiple victims must, as the Attorney-General has submitted, be reflected in the sentence. The sentence of 12 years therefore in this case would, it is accepted, have been appropriate in the case of a single victim, but we accept the submission that it was not an appropriate sentence where there were the two victims. 23. It seems to us, taking into account all of the factors, in a case such as this a sentence where two victims were involved, who received injures of the type that we have set out, an appropriate sentence would be in the range of 15 to 16 years. In this particular case, taking into account to a small degree the circumstances in which the attack took place and the very limited amount of mitigation, we consider that the notional determinate sentence should have been one of 15 years. It is the case that credit is given for what is known as double jeopardy; we therefore reflect that in our decision to substitute for the minimum period imposed by the judge of 6 years, one of 7 years less time on remand, the reduction marginally below half being to reflect that fact of double jeopardy. We therefore give the Attorney leave to bring this Reference, and substitute the sentence we have indicated.

2007_12_11-1310.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3218/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3218

169908e4f106de12bb22da00153ab0b73d098691ec6872a3418723d6c9e340a8

[2009] EWCA Crim 1862

EWCA_Crim_1862

crown_court

Neutral Citation Number: [2009] EWCA Crim 1862 No. 2009/01989/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 1 September 2009 B e f o r e: LORD JUSTICE RIX MR JUSTICE COLLINS and HIS HONOUR JUDGE PERT QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - YVETTE MAXINE SMITH __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fl

Neutral Citation Number: [2009] EWCA Crim 1862 No. 2009/01989/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 1 September 2009 B e f o r e: LORD JUSTICE RIX MR JUSTICE COLLINS and HIS HONOUR JUDGE PERT QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - YVETTE MAXINE SMITH __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Mr S Kolodynski appeared on behalf of the Appellant ____________________ J U D G M E N T LORD JUSTICE RIX: I shall ask Mr Justice Collins to give the judgment of the court. MR JUSTICE COLLINS: 1. On 22 September 2008, at the Crown Court at Wolverhampton, the appellant pleaded guilty to an offence of assault occasioning actual bodily harm, which was the least serious of the charges she faced. On 19 December 208, she was convicted of attempted murder. On 17 March 2009 she was sentenced to imprisonment for public protection, with a minimum term of six years (less 265 days spent in custody on remand). She now appeals against that sentence by leave of the single judge. 2. The circumstances of the offence were these. The appellant met the complainant, Matthew Hipkins, in 2005. She was then 43 years old and he was 28 or 29 years old. The appellant's relationship with her long-term partner came to an end because she decided to start a relationship with Mr Hipkins. That was not a popular move with her family. 3. Unfortunately, the relationship with Mr Hipkins did not go well. He left her and started a relationship with another woman, which the appellant was unable to accept. 4. Mr Hipkins was employed as a delivery driver of catering supplies to a school. On the morning of 24 June 2008 he was making such a delivery. Two young men approached him. One hit him on the head with an implement which he assumed to be a baseball bat, which felled him and momentarily incapacitated him. He was then approached by the appellant. She wore a raincoat and dark glasses and carried a petrol can in her hand. She undid the petrol can and splashed petrol over Mr Hipkins. She produced a lighter and attempted to ignite it. Fortunately, she was unsuccessful. At that stage the head teacher at the school arrived on the scene. Mr Hipkins had managed to grab the appellant around her legs. She fell to the ground and the petrol can fell out of her hand. Another member of the school staff stood on the appellant's hands, forcing her to relinquish the lighter. 5. Mr Hipkins sustained cuts to his head and body and a burning sensation to his skin. That was the offence of assault occasioning actual bodily harm to which the appellant pleaded guilty. 6. In fact, the appellant was also drenched in petrol. She claimed to have intended to incapacitate Mr Hipkins so that he could witness her committing suicide and see the hurt that he had caused her. She had agreed to pay £400 to a "hard looking black man" to "put someone to the floor". We are told that one of the men who was involved in attacking Mr Hipkins pleaded guilty to aiding and abetting the act committed by the appellant. 7. The appellant suffers from multiple sclerosis. She attends this court in a wheelchair. Counsel informs us that she has deteriorated considerably since the trial; she was not then confined to a wheelchair. 8. The material before the trial judge indicated that in the view of the author of the pre-sentence report the appellant was a potential danger to anyone who might form a relationship with her. Accordingly, the judge concluded that she met the criteria of dangerousness under the relevant provisions of the 2003 Act which provide for either a sentence of imprisonment for public protection or an extended sentence. The judge took the view that a sentence of imprisonment for public protection was appropriate. 9. In our judgment, having regard to her state of health, the appellant's dangerousness can be placed at a slightly lower level than otherwise might be appropriate. In those circumstances we take the view that the appropriate sentence would have been an extended sentence rather than one of imprisonment for public protection. We take the view that there is a risk, albeit that the appellant's present state of health may in the end mean that that risk is not as great as it might otherwise have been. Nonetheless, we consider it necessary to have the protection available which would be provided by an extended sentence. The judge took the view that an appropriate determinate sentence was one of twelve years' imprisonment. In our judgment that sentence for an offence of attempted murder is entirely correct. 10. Accordingly, we substitute for the sentence of imprisonment for public protection an extended sentence which will be one of twelve years' imprisonment with a five year extension, during which the appellant will remain on licence. For those reasons and to that extent this appeal is allowed. 11. LORD JUSTICE RIX: The appeal is allowed. The sentence of imprisonment for public protection is quashed and in its place we impose an extended sentence of which the custodial part is twelve years (with 265 days spent on remand to count towards that sentence), and with an extended licence period of five years, making a total extended sentence of seventeen years. ______________________________

2009_09_01-2063.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1862/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1862

57dc9d452f9f27c61719172070fd459d25197972e913e0bf48f265dae1c30b9a

[2024] EWCA Crim 311

EWCA_Crim_311

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: 2023/03232/B3 [2024] EWCA Crim 311 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 13 th February 2024 B e f o r e: THE LADY CHIEF JUSTICE OF ENGLAND AND WALES ( Baroness Carr of Walton-on-the-Hill ) THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION ( Lord Justice Holroyde ) MRS JUSTICE FARBEY DBE ____________________ R E X - v – JACQUELINE FALCON ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ Mr L Orrett appeared on behalf of the Applicant Mr P Jarvis appeared on behalf of the Crown ____________________ J U D G M E N T ( Approved ) ____________________ Tuesday 13 th February 2024 THE LADY CHIEF JUSTICE: I shall ask Lord Justice Holroyde, the Vice-President of the Court of Appeal, Criminal Division, to deliver the judgment of the court. LORD JUSTICE HOLROYDE: 1. In 2014 this applicant, Mrs Jacqueline Falcon came under suspicion in the course of her employment as a post clerk at the Hadston Post Office in Northumberland. She was prosecuted by the Crown Prosecution Service ("CPS") for an offence of fraud, contrary to section 1 of the Fraud Act 2006. Her case was committed to the Crown Court at Newcastle Upon Tyne. 2. She pleaded guilty, and on 2 nd September 2015 she was sentenced to three months' imprisonment, suspended for 12 months, and ordered to pay compensation of £933.69. She was also required to pay the statutory surcharge of £80. 3. She now applies for an extension of time of more than eight years in which to apply for leave to appeal against her conviction and for leave to adduce fresh evidence in support of her appeal. Her applications have been referred to the full court by the Registrar. 4. For reasons which we shall shortly explain, the respondent (the CPS) has helpfully indicated that it does not oppose the applications. It is nonetheless a matter for this court alone to consider the applications and to decide in accordance with the Criminal Appeal Act 1968 whether the conviction is unsafe. 5. A brief summary of the facts is sufficient for present purposes. At the time of the alleged offence the appellant was in her early 30s, married and with the care of her young children. She was of good character. She had worked at Hadston and in other post offices since the age of 18, but had never received any formal training on the Horizon accounting system which had been installed by Post Office Limited ("POL"). She was a diligent employee, but stated that her employer, the Post Master, was quick to find fault and invariably insisted on deducting money from the applicant's wages to make good any mistakes. 6. In early December 2014, when completing her usual cash declaration at the end of the day, the applicant found that she was £933.69 short. She was unable to ascertain how that discrepancy had arisen. She felt unable to report it to the Post Master for fear that the missing sum would be deducted from her wages in the approach to Christmas. She therefore resorted over a number of weeks to falsifying the figures in order to hide the discrepancy until she could either resolve it or make good the loss herself at a later stage. In mid-February 2015, however, her employer found out what had happened and reported the matter to the police. 7. When interviewed under caution, the applicant admitted falsification of the figures. She answered all the questions she was asked. She explained that when she found the discrepancy she assumed that there must have been an administrative error, or an error made either by her or by the Post Master. She made clear that she had not taken any money. 8. In the course of the police investigation a specific inquiry was made by the CPS of a POL security manager, a Mr Ryan, as to whether there could have been some administrative error which explained the discrepancy. The answer to the inquiry contained nothing to suggest that the deficiency could have been caused by one of the bugs and defects which POL by then knew to exist in the Horizon system. Mr Ryan later provided a witness statement and exhibited a significant number of Horizon documents, but again made no reference to any possibility of a problem with that system. 9. The applicant has recently provided a witness statement in which she describes the traumatic experience of being prosecuted, the embarrassment and distress which she and her family suffered as a result of being shunned by their village community after her arrest, and her fear when she appeared before the Crown Court. She indicates that her employer was wrongly telling people that she had been sacked for stealing. She also indicates that for unconnected reasons, it was in any event a particularly difficult period for her. She suffered anxiety and panic attacks, and barely left her house. If she had been told that POL knew of problems with the Horizon system, she would have acted differently. As it was, she pleaded guilty and received the sentence to which we have referred. 10. It was not until about late 2022 or early 2023, when she received a letter from the Criminal Cases Review Commission alerting her to possible grounds of appeal, that the applicant became aware of the problems with Horizon, to which we now turn. 11. This court has heard a series of cases in which former sub-postmasters, sub-postmistresses and Post Office employees (collectively referred to for convenience as "SPMs") have challenged their criminal convictions on the basis of the unreliability of data produced by Horizon. The series began with R v Josephine Hamilton and Others [2021] EWCA Crim 577. Subsequent cases included R v Margaret White and Others [2022] EWCA Crim 435. The judgments in all of those cases are publicly available. It is sufficient for present purposes for us to summarise their effect very briefly. 12. In each of those cases this court has had to consider whether the prosecution of the applicant or appellant concerned was an abuse of the process of the court, and whether the conviction is unsafe. The principles on which the court has acted and the reasons why a guilty plea does not necessarily bar an appeal against conviction were explained in Hamilton . The court there used the shorthand term "Horizon case" to identify a case in which the reliability of Horizon data was essential to the prosecution and there was no independent evidence of an actual loss from the account of the SPM concerned, as opposed to a Horizon-generated shortage. 13. The court referred to and adopted findings made by Fraser J (as he then was) in civil proceedings brought in the High Court by SPMs against POL. Those findings established two key features which were in existence throughout the period of many years with which the High Court was concerned: first, that there had been serious problems with Horizon which gave rise to a material risk that an apparent shortfall in the accounts of a branch post office did not in fact reflect missing cash or stock, but was caused by one of the known bugs, errors or defects in Horizon; and secondly, that POL, despite knowing of the serious problems, had failed to consider or to make appropriate disclosure of those problems to prosecuted employees. POL had, on the contrary, asserted that Horizon was robust and reliable, and had effectively steamrolled over any SPM who sought to challenge its accuracy. 14. This court found that in cases where Horizon data was essential to the prosecution, there was no basis for the criminal proceedings if the Horizon data was not reliable. POL's failures of investigation and disclosure prevented the accused SPMs from challenging – or challenging effectively – the reliability of the data. In short, POL, as prosecutor, brought serious criminal charges against the SPMs on the basis of Horizon data, and by failing to discharge its duties of disclosure it prevented them from having a fair trial on the issue of whether that data was reliable. This court further found that by representing Horizon as reliable, and refusing to countenance any suggestion to the contrary, POL effectively sought to reverse the burden of proof. It treated what was no more than a shortfall shown by an unreliable accounting system as an incontrovertible loss and it proceeded as if it were for the accused to prove that no such loss had occurred. 15. Denied any disclosure of material capable of undermining the prosecution case, defendants were inevitably unable to discharge that improper burden. As each prosecution proceeded to its successful conclusion, the asserted reliability of Horizon was, on the face of it, reinforced. Defendants were prosecuted, convicted and sentenced on the basis that the Horizon data must be correct, and cash must therefore be missing, when in fact there could be no confidence as to that foundation. 16. This court concluded that in Horizon cases the prosecutions were an abuse of the process of the court, both because it was not possible for the trial process to be fair (category 1 abuse) and because it was an affront to the conscience of the court for the defendant concerned to face prosecution (category 2 abuse). 17. Returning to the present case, we note that the Notice of Appeal drafted by counsel and solicitors, kindly acting pro bono , was lodged on 15 th September 2023. The Registrar swiftly granted representation orders to enable the necessary preparation to be undertaken, inquiries made with the CPS, and perfected grounds of appeal thereafter filed. 18. The respondent CPS, having made the necessary inquiries and reviewed documents received from POL, filed a Respondent's Notice on 22 nd January 2024, in which it confirmed that the applications would not be opposed. The Criminal Appeal Office was thereafter able to progress the case swiftly to today's hearing. 19. For the appellant, Mr Orrett submits that this is a Horizon case; that the prosecution of the applicant was an abuse of the process; and that her conviction is unsafe. He submits that the applicant's guilty plea was entered in ignorance of important matters concerning the reliability of Horizon, which had subsequently become much better known. There was a failure to disclose to her information which would have caused those then acting for her to advise her in very different terms. Mr Orrett focuses on category 1 abuse, and does not actively pursue submissions as to category 2. 20. For the respondent, Mr Jarvis accepts that this is a Horizon case and that the conviction is unsafe. He points out that the CPS took appropriate steps to obtain evidence and information from POL, but, like the applicant, was proceeding in ignorance of material facts known to POL. As a result, there was a failure of disclosure. The respondent has confirmed that had it known at the time of POL's failure of disclosure, it would either not have charged the applicant or would have discontinued any proceedings prior to her arraignment. He submits that the prosecution was not an affront to the conscience of the court, because the CPS as prosecutor did nothing improper. He submits that any finding of category 1 abuse of the process should only have been made on the basis that failings on the part of POL made it impossible for the applicant to have a fair trial. 21. We are grateful to both counsel and to all those who have assisted them in the preparation and presentation of the case. 22. Having considered the evidence and the submissions, we are satisfied that the respondent's concessions are rightly and properly made. Although this case was prosecuted by the CPS, rather than by POL, it was a Horizon case in which the reliability of Horizon data was essential to the prosecution and there was no independent evidence of the alleged, or any, actual loss. Despite what was said by the applicant in interview, no relevant investigation was carried out by POL; and despite the inquiry which the CPS rightly made of POL, no disclosure was made to the CPS of the concerns about Horizon which POL knew to exist. The CPS was, therefore, unable to make the disclosure to which the applicant was entitled. 23. The applicant pleaded guilty because the failures by POL meant that she and her legal representatives were kept in ignorance of material evidence which went directly to the issue of her alleged guilt. 24. The CPS, reliant as it was on the provision of relevant information and evidence by POL, did not act improperly in prosecuting the applicant. For that reason, although this court has reached a different conclusion in cases which were prosecuted by POL, we accept that these proceedings brought by the CPS did not fall into the exceptional category of case in which the prosecution of the applicant was a category 2 abuse of the process. We are, however, sure that as a result of POL's failures of investigation and disclosure, the applicant could not have a fair trial, and her prosecution was in that respect a category 1 abuse of the process. We are also sure that, notwithstanding her guilty plea, the applicant's conviction is unsafe. 25. We therefore grant the necessary extension of time; we grant leave to appeal; we formally receive the applicant's recent witness statement as fresh evidence; we allow the appeal; and we quash Mrs Falcon's conviction. THE LADY CHIEF JUSTICE: 26. I add this to the court's judgment. This is the 71 st Horizon conviction that has been quashed by this court. Mrs Falcon's appeal was commenced in mid-September 2023. The Registrar granted legal aid for legal representatives to advise and assist her. Her final grounds of appeal were lodged by the beginning of December. The appeal itself has been disposed of just over three weeks after the respondent then indicated that the appeal based on category 1 abuse of process would not be opposed. 27. Today's hearing has lasted some 30 minutes in total, including delivery of our oral judgment. 28. The court has been, and remains, committed to the efficient and swift dispatch of Horizon appeals. This year to date six applications have been received, the most recent of which has arrived this week. Four that were unopposed have already been quashed – two within 14 days of Notice of Appeal being received by the Court of Appeal Office, and two within seven days. 29. These matters have proceeded under the fast track approach which has been implemented. The Registrar seeks confirmation within 14 days of receipt of an Appeal Notice in a Horizon case, whether or not an appeal will be opposed and, if so, whether on either or both category 1 and category 2 abuse cases. At the same time, legal aid is granted for experienced solicitors and counsel to act for the applicant. Where an appeal is unopposed, the appeal can be listed on an expedited basis. 30. With the co-operation of all parties, for which we are grateful, the court has been able to quash these Horizon convictions speedily. _____________________________________ 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_13-6048.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/311/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/311

514ea3437cffc81eb14c37853889450fb7d4cc6c3a9957c5af7a5ed528db951f

[2006] EWCA Crim 1815

EWCA_Crim_1815

crown_court

Case No: 200506442/C3 Neutral Citation Number: [2006] EWCA Crim 1815 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 16th May 2006 B E F O R E: LORD JUSTICE AULD MR JUSTICE GIBBS SIR MICHAEL WRIGHT - - - - - - - R E G I N A -v- MARVIN ISICHEI - - - - - - - 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

Case No: 200506442/C3 Neutral Citation Number: [2006] EWCA Crim 1815 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 16th May 2006 B E F O R E: LORD JUSTICE AULD MR JUSTICE GIBBS SIR MICHAEL WRIGHT - - - - - - - R E G I N A -v- MARVIN ISICHEI - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M T MONAGHAN appeared on behalf of the APPELLANT MR A LONG appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE AULD: On 6th October 2005, before His Honour Judge Steiger QC and a jury, the appellant, Marvin Isichei, was convicted of two offences of assault occasioning actual bodily harm and an offence of robbery. On 21st October 2005 Judge Steiger sentenced him to one year's imprisonment for each of the offences of assault occasioning actual bodily harm and five years' imprisonment for the robbery, all the sentences to be served concurrently and also concurrently to a sentence of imprisonment that he was already serving. Mr Isichei was acquitted by the jury on another count of robbery said to have arisen out of the same incident. 2. He appeals against conviction and sentence by leave of the single judge. 3. The prosecution case and evidence were in summary as follows. At about midnight on 24th/25th November 2004 two first year university students, Ffion Harvey and Michelle Hancock, went to a bar in Manchester city centre known as the Lucid Bar. Whilst there they saw two black men whom Michelle Hancock was later to describe as their assailants. There was a video recorder in the Lucid Bar that showed one of the black men to have an appearance consistent with that of Isichei. 4. At about 2 in the morning the two girls, with three white men whom they had met in the bar, went in a taxi to a club called the Circle, but found it closed. They decided to look for another club and got into another taxi. Once in the taxi, one of the men mentioned ringing someone he called Marvin. He spoke to someone on his mobile telephone. As a result of, or, at any rate, at the end of the call, the man who had made it suggested they go to a club called the Press Club. That is where they went. 5. The potential relevance of that remark, as it was canvassed at trial, was that it supported, with other evidence, the identification of Isichei as one of the robbers, since his first name is, as we have indicated, Marvin. As will appear, its admissibility as part of the prosecution case was and is disputed. 6. When the five arrived at the Press Club, they found it was open, but the doorman would not let them in. On Ffion Harvey's evidence, the same white man rang Marvin again. On Michelle's evidence there was no such second telephone call. On the evidence of both of them, a black man came out of the club, and, after some conversation with the doorman, he let the girls in, but not the three white men. Once inside, the girls saw the two black men whom they had seen at the Lucid Bar. 7. Shortly afterwards, the two girls left the Press Club on their own to walk towards the station. On their evidence, while they were walking a taxi drew up and the two black men whom they had seen at the Lucid Bar and the Press Club got out. Ffion said that one of them said he want his "coke" back which she took to be a reference to cocaine. In cross-examination she conceded as a possibility that he might have used another word sounding something like it, say coat. Michelle's evidence was that he definitely used the word "coke", and that he mentioned at some point that he wanted cocaine. They said that they told the two men they did not know what he was talking about. One of them grabbed Ffion Harvey and said he would strip her naked. According to Michelle he pushed Ffion to the ground and he removed her, Michelle's, ear rings. That was the subject of the other count of robbery, of which he was acquitted. The two men then took the girls to a bank cash dispenser where they assaulted them, the subject of the charges of assault occasioning actual bodily harm. As a result, Ffion withdrew £200 from the dispenser and gave it to, or threw it, at one of the men. A good deal of this was recorded on the bank's external CCTV recorder, showing one of the black men to have an appearance consistent with that of Isichei. 8. The two girls then hailed a taxi and told the taxi driver what had happened. They then spoke to a police officer from a passing car that the taxi driver flagged down. 9. Later the next day, 26th November, the two girls made witness statements to the police that were broadly consistent, one with another, save that, initially, Michelle did not say that they had seen the two black men in the Lucid Bar, but only later on that night. Subsequently, she made a further witness statement saying she had seen both of them in the Lucid Bar. 10. On 18th February 2005 Isichei was arrested and interviewed. He told the police that he had not been working in the previous November and did not remember where he had been on the night of 25th/26th November. He acknowledged, however, that he had often been to the Lucid Bar and the Press Club. 11. On 25th February 2005 the police conducted a video identification parade for each girl. Ffion identified Isichei as the man who had let them into the Press Club and as one of their attackers. Michelle did not identify him as one of them, saying that she was not certain, but her evidence was that the person who had been in the Lucid Club and the one who had let them into the Press Club was one of them. 12. The defence case was mistaken identification. Isichei gave evidence to the following effect. In September 2004 he had set up a company called Iceberg to recruit people to work in clubs. In November 2004 his girlfriend was about to have a child by him and he had not stayed out as late as he had usually done. He had frequented the Lucid Bar and the Press Club. He could not say that he had not been in the Lucid Bar on the night in question, but he had not been a party to the robbery and the assaults. As to the CCTV recordings at the Lucid Bar and the bank, he maintained that the representations of one of the men did not include him. 13. Two issues arise on this appeal, both of them Mr Mark Monaghan for Isichei raised on his behalf before the judge. The first arises out of an application by Mr Andrew Long for the prosecution at an early stage to adduce evidence of Isichei's bad character in the form of a conviction for having been concerned some six and a half years' before, in the importation of cocaine, an application that the judge granted. The second issue arose from an application by Mr Monaghan to exclude as inadmissible hearsay the evidence of the girls of the reference to Marvin, the relatively unusual first name of Isichei, by one of the white men when telephoning to find a club that was open after they left the closed Circle Club. The judge refused that application. 14. As to the first of those matters, proof of Isichei's conviction of having been concerned in the unlawful importation of cocaine, the prosecution's application by Mr Long was made pursuant to section 101(1) (d) of the Criminal Justice Act 2003 as: "... relevant to an important matter in issue between the defendant and the prosecution." 15. Mr Long maintained that the conviction was relevant to the issue of Ffion's and Michelle's claim that one of their attackers was Isichei, in that he had asked for cocaine, to the telephone call to Marvin and to Ffion's identification of him as one of the two attackers. 16. Mr Monaghan objected to the conviction being put in evidence, maintaining that it was not relevant to any important matter in issue in the case. It did not show a propensity to commit the offences in question, as would now continue to be admissible under the 2003 Act ; and a single conviction did not, in any event, show a propensity to do anything. He submitted that, in any event, it was unfairly prejudicial to the defence case and should be excluded in the judge's residual discretion in section 101(3) of the 2003 Act , because it was inconsistent with the two girls' account, which contained no suggestion that they had cocaine at the time in question that the appellant might have wished to retrieve. 17. The judge ruled in these terms on Mr Long's application: "My conclusions are that the matter in issue is not conventionally in these applications a propensity to commit the type of offence with which the defendant is charged. That is not the point. The matter in issue in the present debate is identity. The defendant says that he was not one of the two men who robbed the two female victims. It is of course relevant that the defendant is identified by one of the victims as being the culprit. It is further relevant that the two victims speak of Marvin as being the person spoken to by an unidentified male and a person later appeared in response to their telephone calls. It must also in my judgment be relevant that the defendant is connected to cocaine, when cocaine was the motive for these offences. Even though only one previous conviction is involved, it seems to me that the situation is such that that conviction would and could have been admitted, even under the old law, having, as it does in my judgment, positive probative force pursuant to the judgment in the well-known case of DPP v P ." 18. He continued: "... the jury will most certainly be told that the previous conviction does not in any way establish any propensity or disposition or make it any more likely that the defendant was one of the two robbers ..." 19. So, the judge made it clear in his ruling on admissibility that the evidence of the drug conviction was relevant not to propensity to commit offences of robbery and/or assault, but simply as to identification of Isichei as one of the robbers and attackers. Its relevance, as the passage we have cited shows, was that it showed Isichei was connected to cocaine in the sense of having an interest in the drug. The prosecution duly put the conviction, though not the sentence, before the jury. 20. After both girls had given evidence, differing slightly, as we have said, as to the reference by one of the black men from the taxi to cocaine, Mr Monaghan raised these matters with the judge. He suggested that the evidence of the previous conviction could only be relevant to the issue of identification and that, on the judge's ruling, the jury could only regard it as relevant if they were satisfied that the appellant had used the word coke and in doing so was referring to cocaine. If not, he submitted the connection could have no relevance, and all that would be left was unfair prejudice to the appellant, which no direction by the judge could overcome. 21. The judge responded by observing that there was no serious evidential basis for concluding that, if the appellant had said he wanted the coke back, it could be a reference to anything other than cocaine. However, he said that he would direct the jury that, if they thought it was a reference to something else, they should disregard it, a direction which he duly gave when directing them to the relevance of the conviction to the issue of identification. 22. This is how he dealt with that matter in his summing-up when identifying a number of features that he had catalogued as being potentially capable of supporting the prosecution case on identification: "The third feature that is potentially capable of supporting her identification is the defendant's apparent connection to cocaine, because you know that he was convicted of being concerned in the importation of cocaine some five or so years ago. This is only a supporting circumstance, or capable of being a supporting circumstance if you are sure that cocaine was what the assailants were talking about. If for example you are sure the assailants were talking about a coat, or coca cola or anything else that rhymes with coke, you should disregard it because it would be irrelevant. But if you thought that the assailants were talking about cocaine for whatever reason, the fact that the defendant has been convicted of being concerned in its importation is some evidence that you are entitled to take into account if you see fit as supporting Ffion Harvey's identification." 23. The apparent reversal of the burden of proof in two passages in that paragraph from the judge's direction is not a point that has been taken on the appeal and it was clearly a matter that would not have attracted the jury's attention in the context of the summing-up as a whole. 24. Then, continuing to the second passage where he dealt with this issue: "And may I say one final word by way of legal directions about the defendant's conviction for being concerned in the importation of cocaine. That is only relevant to the issue of identification in the circumstances that I have just referred to. It is not evidence of any tendency or propensity to commit this or any other type of offence and you must not think that because the defendant has that conviction, that is of itself evidence that he committed this robbery. That would be unfair and improper and I so direct you." 25. Mr Monaghan has renewed his submissions made to the judge on this appeal. First, he returned to the point he made in submissions after the girls had given evidence, of the prejudice to Isichei if the jury could not be sure that he, or the assailant whom Ffion identified as him, had referred to coke when first accosting them. The prejudice in this respect, he argued, was that the jury would hear about the conviction before deciding whether, depending on their view of the girls' evidence, the reference was after all relevant. It was prejudice, he maintained, that could not be overcome by the judge's directions. It was a direction, he suggested, which was not, in any event, adequate, citing a passage from the judgment of the Vice President, Rose LJ, giving the judgment of this court in Edwards, Fysh, Duggan and Chohan [2005] EWCA Crim 1813 at paragraph 3. 26. Secondly, and equally importantly, Mr Monaghan has maintained that evidence of Isichei's previous involvement in an importation of cocaine some six or seven years before, would not have been admissible in the quite different context of these charges and evidence to support them as similar fact evidence under the old law as stated in the well-known authority of DPP v P . 27. Thus, he maintained, though not parcelled as propensity in the judge's direction, that is what it was essentially. He maintained that it could not, in the terms of section 101(1) (d) of the 2003 Act , be relevant to an important matter in issue. It would simply be part of a broader pre-2003 Act issue for this purpose. The Crown's real case for adducing this evidence, he maintained, was one of propensity as inclusively indicated in section 103(1) (a) and (2) of the 2003 Act , which a bracketing of cocaine importation and robbery and assaults, coupled with mention of cocaine, cannot satisfy. Again, he relied on prejudice. He relied on the analysis in this respect of the court in R v Hanson and others [2005] EWCA Crim 824 in the judgment of Rose LJ at paragraph 7 and 9. 28. If all else failed, he relied on the long interval of time, some six and a half years, between the two matters as a reason, by reference to section 101(4) and (3), for the judge to have excluded this evidence on the ground of its unfairness. 29. Mr Long's reply to those complaints was that they misrepresent the purpose of the evidence and the judge's declared reason in his ruling and in his summing-up to the jury for admitting it. It was not to use it as similar fact evidence, or as evidence of propensity, but because it was arguably relevant because it showed a connection with one of the robbers, who, on one reading of the evidence, committed the robbery to retrieve cocaine or payment in lieu. It was not necessary, Mr Long submitted, to categorise the evidence either as going to propensity, or identification in the similar facts sense of the use of that term. Its relevance was as part of the story going to proof of guilt. 30. The arguable connection he said, the relevance of it, was that it gave rise to an inference that Isichei was a cocaine dealer, which entitled the jury to consider whether it was a mere coincidence in this case of disputed identification that he had been involved in the past in the importation of cocaine. 31. Mr Long also maintained that the judge dealt accurately and adequately with the relevance of the previous conviction in his summing-up in the passage we have read. He added that the strictures of the Vice President in Fysh and others as to the need for a clear explanation as to their relevance were in a context where the evidence in question had been admitted to show propensity; not the case here. 32. In our view, and paying all due allowance to the complexities introduced into this area of law by the 2003 Act , this was not a direction as to propensity -- quite the reverse. It was expressly a direction as to identification through the medium of a connecting factor so as to place Isichei in a discrete category of person interested in cocaine, so as to tie it to the girls' evidence as to the mention of cocaine by one of their assailants. However you look at it, the connecting factor is one in which the prosecution sought to find a way to support the evidence of identification: not a propensity to commit robbery or assault. 33. The further question, which arises under section 101(3) of the 2003 Act , is whether, in introducing facts before the jury which showed at least a previous propensity to be involved in dealing in cocaine, may have prejudiced the case against Isichei to such an extent that any direction that he gave could not overcome it. In conventional terms the direction given by the judge, which we have read, was adequate. It is a matter to which we shall return when considering the overall scope for prejudice in the case. 34. The second issue raised in the appeal is the judge's rejection of Mr Monaghan's application, before either of the girls gave evidence, to exclude from it as inadmissible hearsay any reference to one of the white men, with whom they had gone to the Press Club, making a telephone call to the man called Marvin. The judge, as we have said, rejected that application, ruling that the matter was governed by the definition of "statement" in section 115 of the 2003 Act . He held that the word "Marvin" was not a statement amounting to hearsay within section 114 within that definition because it had not been said for the purpose of making anyone believe anything. He added that if he was wrong about that he would have held it to be admissible under section 114(1)(d) as being in the interests of justice. The judge adhered to that ruling following a subsequent request by Mr Monaghan that he should reconsider it. 35. Mr Monaghan has renewed his submissions made to the judge in his arguments in support of the appeal, first, that it is not a "statement" within section 115(3) (a) and (b) so as to qualify for admission under section 114(1). 36. Section 115(3) (a) and (b) read as follows: "A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been -- (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated." 37. Mr Monaghan submitted that the unidentified white man clearly had as one of his purposes causing the rest of the group to know and to accept that he was about to call someone called Marvin so as to bring it within section 115(3) (a). 38. Secondly, he maintained that the judge's fall-back expression of view that it would, in any event, have been admissible within section 114(1)(d), as within the interests of justice was not supported by the factors in section 114(2). Such a view, he said, would turn on a series of speculations, not least because the white man who had allegedly made the reference to Marvin had not been traced, involving consideration of the admissibility of oral hearsay dealt with in section 116 and because of differences in the evidence of the girls about that. 39. Mr Long submitted in reply that the prosecution sought to put this evidence in, not as to the truth of the fact that the white man actually called a man whose name was Marvin and who told him he was in the Press Club, but because, if accepted, it could lead to an inference that the person who came out to secure the admission of some of the party to the club was called Marvin, later said by both girls to be one of the robbers and identified by Ffion on the video identification parade as Isichei. There was, therefore, he said in the reference in the taxi to a man called Marvin a strand of evidence connecting one of the robbers with a relatively unusual first name, the same as that of Isichei. 40. Mr Long maintained, therefore, that the evidence was not hearsay within the definition of hearsay in section 115(2) and (3) of the 2003 Act , in that it was not a representation of fact or opinion and it was not made in order to cause another person to believe the matter, or to act upon the basis that the matter was as stated. In any event, he would have relied on the provision of section 114(1)(d) to have it admitted as hearsay in the interests of justice, bearing in mind the factors identified as going to that issue in section 114(2)(a) to (i), which, he submitted, militated in favour of its admission. 41. In our view, the judge may have been wrong in concluding that it was not a statement within section 115(3) and so governed by the Act . That would require a semantically correct and somewhat highly artificial application of the provision in this context in an analysis to what was essentially an inconsequential part of the story so far as the speaker on the telephone at the time was concerned. It is common sense that it is a possible inference that he spoke to Marvin, or someone whom he knew who was at the club, leading, as a result of the conversation, for them all to go there. But even if the man on the telephone had not, in the words of section 115(3) (a), had the purpose of causing the others in the cab to know that he was talking to Marvin, the evidence, if that were the case, would be, if anything, more probative than otherwise. Why should he care, if the story was true, what the others believed as to the truth of the person to whom he was talking or as to what was being said. Their only interest at the time was whether as a result of the telephone call they would be able to find another club to go to which was open. Whatever the position, it seems to us that the evidence about that was clearly admissible in the interests of justice under section 114(1)(d) as part of the story of a common sense series of events, the one leading from the other. 42. We turn now to the question of the safety of the convictions. There is a further and, in any event, critical consideration to which Mr Long referred and upon which he relied in his submissions. That is whether, even if the judge erred in respect of either or both of the matters of which Mr Monaghan complains, such error or errors would have made the convictions unsafe. He described the two pieces of evidence as comparatively minor strands in the context of the prosecution case and evidence as a whole. As to the other evidence going to identification, there was, he pointed out, first, the positive identification of Isichei by Ffion at the video identification parade with which Michelle's uncertainty was not inconsistent. There was also Michelle's recollection of seeing the same man in both premises. Second, the connection of Isichei to the Lucid Bar and the Press Club. Isichei had not denied that he was in the Press Club at the relevant time that night. Third, the video photographs from the Lucid Bar that night and at the scene of the robbery and assaults showed a man whose physical appearance was consistent with that of Isichei. 43. All those matters, which, as Mr Long pointed out, the judge clearly and accurately referred to in his summing-up, were the core of the prosecution case. The two matters in dispute were capable of being supportive of that core case, although individually or together they were not in themselves enough to found a conviction. 44. It seems to us, regardless of the judge's approach to the issue of the admissibility of the evidence of the previous conviction, there was a great deal in the prosecution case that could not have left the jury at any risk of being unfairly prejudiced by it. 45. First, there was the clear identification by Ffion some two or three months after the event in the video identification parade, which the jury plainly accepted. Her evidence was supported, as we have said, by evidence of Michelle consistent to the extent of identifying the same two men in the same two premises before the offence occurred that night. 46. Secondly, the previous conviction was a matter of a wholly different nature, albeit serious, some six years before; the significance of that difference not being lost on any jury, one would have thought, properly directed or not. 47. Thirdly, the issue of cocaine and Isichei's connection to it was already in play in this trial through the girls' evidence as to what Isichei said to them at the beginning of the assaults and in the course of them, an approach whether by pretence or in seriousness to seek the return of cocaine. So, the information as to the previous conviction did not burst upon the scene to introduce a connecting element of cocaine that was not already part of the prosecution case. 48. Fourthly, there is the clear indication, whatever the different issue, that the jury were not so prejudiced against Isichei as a result of hearing of the earlier conviction as not to acquit him on the additional charge of robbery in the indictment. They clearly looked at the matter analytically, issue by issue, and decided that in that respect, whatever his connection with cocaine, he was not guilty. 49. Lastly, and fifthly, are the directions, to which we have referred and which we have rehearsed, in which the judge clearly warned the jury of the precise limits of the relevance of the evidence of the previous conviction and not to treat it as one of propensity or to hold it against him in that way. 50. For all those reasons, we are satisfied that this jury, as English juries are expected to do, were able to put aside what was and what was not relevant to the issue of identification that they had to decide, and loyally followed the judge's direction as to how to do that. That is something we expect of our juries. The whole system is premised on the basis that juries will be loyal to and will understand the judge's directions when difficult matters of this sort arise as they frequently do in the course of trials. 51. For those reasons, the appeal is dismissed. ( Submissions made in relation to an appeal against sentence ) 52. LORD JUSTICE AULD: There are two points Mr Monaghan raises in submissions in support of the appeal against sentence. The first is that the judge, in fixing on the figure of five years' imprisonment, said that he had taken into account the change in the law as to the regime for release on remission from sentence. Mr Monaghan submits that if he had taken that change into account in arithmetical terms correctly, allowing for the earlier certain date of release from a prison sentence, it would have meant that his starting point for the sentence was six years and eight months' imprisonment, which, he submitted, was too high a starting point. 53. We have considered the sentence of five years against the nature of the offence and its seriousness. Regardless of the route by which the judge purported to reach that sentence, we take the view that five years' imprisonment is not one which, under today's regime, could be considered in any way manifestly excessive or wrong in principle, and we reject that complaint. 54. The second complaint of Mr Monaghan is that it is said that the judge varied the sentence so that the period of five years started from the date of sentence rather than from the time that Isichei was recalled to serve the balance of a period of a previous sentence. Mr Monaghan derives that submission from the way in which the judge put it in his sentencing remark, saying, after referring to the time spent in custody in these and in other proceedings: "... the least sentence appropriate on count 4, a sentence which will be concurrent with the balance of that you are serving, is five years' imprisonment, and on counts 1 and 2 12 months' concurrently. Take him down please." 55. It is not at all clear from the way in which the judge put it there, that he did intend, as Mr Monaghan suggests, that the sentence, unusually, would have been ordered to take effect retrospectively from the date of start of previous recall. It is equally consistent, it seems to us, with the sentence operating from the date on which it was made, but thereafter concurrently with the balance of the sentence to be served on recall. That is certainly how the matter should have been dealt with and how, we believe, the judge intended it to be dealt with. 56. We, therefore, dismiss the appeal against sentence. 57. MR LONG: My Lord, I don't know if I am right about this, I wonder if it is necessary for your Lordship to indicate that the time served to date will count against the appellant's sentence, notwithstanding his conviction appeal? 58. LORD JUSTICE AULD: Is it necessary to do that? 59. MR LONG: My Lord, it was last week in the court next door. 60. MR MONAGHAN: I would ask your Lordship to do that in the circumstances. 61. LORD JUSTICE AULD: For the avoidance of doubt. 62. SIR MICHAEL WRIGHT: And in an excess of caution. 63. LORD JUSTICE AULD: All right. We shall do that. Thank you for your assistance.

2006_05_16-810.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1815/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1815

795048860159d988447fee4feefc75979655c3b7fab827b63ca4c5a3f15a917c

[2018] EWCA Crim 373

EWCA_Crim_373

crown_court

Neutral Citation Number: [2018] EWCA Crim 373 No: 201703479/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 20 February 2018 B e f o r e : LORD JUSTICE HAMBLEN MR JUSTICE SWEENEY RECORDER OF GREENWICH (HIS HONOUR JUDGE KINCH QC) (Sitting as a Judge of the CACD) R E G I N A v SAMUEL JONATHAN LANGLEY Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400

Neutral Citation Number: [2018] EWCA Crim 373 No: 201703479/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 20 February 2018 B e f o r e : LORD JUSTICE HAMBLEN MR JUSTICE SWEENEY RECORDER OF GREENWICH (HIS HONOUR JUDGE KINCH QC) (Sitting as a Judge of the CACD) R E G I N A v SAMUEL JONATHAN LANGLEY Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Ms E Coverley appeared on behalf of the Applicant J U D G M E N T (Approved) If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. MR JUSTICE SWEENEY: On 13 June 2017 in the Crown Court at Nottingham the applicant, who is now aged 30, pleaded guilty to two offences of robbery (Counts 1 and 3) and two associated offences of having a bladed article (Counts 2 and 4). 2. On 6 July 2017 the applicant was sentenced by His Honour Judge Sampson to 6 years' imprisonment on Count 3, to 3 years 4 months' imprisonment consecutive on Count 1, and to 2 years' imprisonment concurrent on each of Counts 2 and 4, making a total sentence of 9 years 4 months' imprisonment. 3. He now applies for an extension of time of 17 days in which to renew his application for leave to appeal against sentence following refusal by the single judge. 4. The facts are set out in the Criminal Appeal Office summary. 5. It suffices to record that the applicant had 14 previous convictions spanning the period from June 2003 to March 2017, including convictions for having a bladed article in 2004, assault with intent to rob in 2004, and robbery in 2010. 6. The two pairs of offences were committed on 25 April 2017 and 7 May 2017 respectively. Each involved a small convenience store in Hucknell. The first was manned by a single female member of staff, the second by two female members of staff. In each the appellant endeavoured to hide his identity and was armed with a large kitchen knife. In the first the appellant acted alone. In the second, he had an accomplice, who carried out an initial reconnoitre on his own, and later entered with the appellant to carry out the robbery. In the first £600 - £800 in cash was stolen, in the second £750 in cash was stolen. Both robberies were caught on CCTV. Unsurprisingly, all three victims were greatly traumatised by what had happened to them. At the second shop the business was, in consequence, closed by its owner - who was unable to sell it and, as a result, he lost his retirement nest egg, and his employees lost their jobs. 7. The applicant was arrested on 15 May 2017. He made "no comment" in interview. 8. There was no pre-sentence report but such was, in our view, unnecessary. 9. In passing sentence the judge rehearsed the facts and concluded that each robbery fell into category 2A of the relevant Guideline, but with a number of aggravating features - they were planned, the second was a joint offence, the appellant's previous convictions, the attempts to conceal identity at both shops, and the fact that the victims were each vulnerable to a certain extent. 10. As to Count 3, the judge identified a notional sentence after trial of 9 years, and as to Count 1, one of 8 years – which he reduced in order to reflect the principle of totality, resulting in a sentence of 5 years and thus a total notional sentence of 14 years which, less full discount for plea, gave the ultimate sentences and the total sentence to which we have already referred. 11. The co-accused, in so far as the second robbery was concerned, who also fell to be dealt with for other offences, was sentenced to a total of 6 years and 6 months' imprisonment. 12. There are two Grounds of Appeal: (i) that the starting point was too high, even given the aggravating features and (ii) that too little allowance was made for the principle of totality. 13. On the applicant's behalf Ms Coverley submits that whilst the production of the knife was self-evident at both robberies, there were no additional threats involved (albeit that, as is obvious from the CCTV footage, each victim was clearly intimidated by its sight). This was, Ms Coverley submits, offending that was at the lower end of category A at worst, and ought more appropriately to have been regarded as being within category B. It was, given that there was no significant actual use of force, offending which fell towards medium culpability. Whilst there were accepted to be various aggravating features, relatively little weight attached, Ms Coverley submits, to the appellant's previous convictions, it being the position that his last robbery conviction was in 2010. Thus, while there was an element of targeting, some planning, rudimentary attempts at disguise, and consequence for each of the victims, the judge had taken too high a starting point. 14. As to the second Ground, Ms Coverley submits that the judge did not make enough allowance in relation to proportionality which, had he done so, would have resulted in the imposition of a lesser total sentence. 15. The issue as to whether the offence in Count 3 fell within category 1A, or within category 2A or B, was ventilated in the court below, with the judge being persuaded that it fell into category 2A. However, we have no doubt that that offence fell into category 1A – given that the plans of the owner to sell the business in 2018 were clearly frustrated by the robbery, such that, as he made clear in his victim personal statement, he was unable to sell the business and it had to close - thus he lost his retirement nest egg and his employees lost their jobs. 16. It seems to us that was the correct route by which to arrive at the notional sentence after trial. Hence, albeit that the Judge got there by a different route, there is no arguable merit in the criticism of the sentence imposed on Count 3. Likewise, it seems to us that the sentence ultimately imposed consecutively, in relation to Count 1, was a sentence which not only respected the principle of totality but also resulted in an overall sentence that was entirely proportionate to the gravity of the applicant's offending. 17. In those circumstances, we agree with the single judge that the Grounds sought to be advanced are unarguable. Therefore, this application is refused. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

2018_02_20-4173.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/373/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/373

b6fe8700ae8dcef30404286620f7e527d14ca7b258d84f73930b2406362c2f3f

[2012] EWCA Crim 2458

EWCA_Crim_2458

crown_court

No: 2012/4268/B4 & 2012/3016/B4 Neutral Citation Number: [2012] EWCA Crim 2458 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 2 November 2012 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE HICKINBOTTOM HIS HONOUR JUDGE BONEY QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v J.OC - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications

No: 2012/4268/B4 & 2012/3016/B4 Neutral Citation Number: [2012] EWCA Crim 2458 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 2 November 2012 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE HICKINBOTTOM HIS HONOUR JUDGE BONEY QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v J.OC - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr M Smith appeared on behalf of the Applicant Mrs K Taylor appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE PITCHFORD: This is an application for leave to appeal against conviction and sentence which has been referred to the full court by the Registrar. For reasons which we shall give, we grant leave. 2. At Leeds Crown Court before Her Honour Judge Belcher, between 27th February and 7th March 2012, the appellant was tried upon an indictment containing 14 counts in which he was charged with sexual offences against his sister and against his daughter. The complainants are entitled to their anonymity and by reason of their family connection with the appellant the title to this judgment shall be anonymised with the initials "JOC". 3. On 7th March 2012 the jury returned verdicts of guilty and the appellant was sentenced as follows. Count 1, rape of T, contrary to section 1 Sexual Offences Act 1956 , five years four months' imprisonment. Count 2, indecency with a child, T, contrary to section 1 Indecency with Children Act 1960 , six months' imprisonment. Count 3, indecent assault of T, contrary to section 14 Sexual Offences Act 1956 , two years' imprisonment. Count 4, indecent assault of T, nine months' imprisonment. Count 5, indecent assault of T, 18 months' imprisonment. Counts 6 and 7, indecent assault of T, 12 months' imprisonment each count. Count 8, indecent assault of T, six months' imprisonment. Count 10 and 11, sexual assault upon L, contrary to section 3 Sexual Offences Act 2003 , two years' imprisonment each count. Count 12, causing or inciting a child (L) to engage in sexual activity contrary to section 10 Sexual Offences Act 2003 , imprisonment for public protection with a minimum term of 42 months. Count 13, engaging in sexual activity in the presence of a child (L), contrary to section 11 Sexual Offences Act 2003 , two years' imprisonment. Count 14, sexual assault of L, contrary to section 3 Sexual Offences Act 2003 , two years' imprisonment. 4. The judge ordered the sentences to run concurrently save that the sentence of five years and four months on count 1 was ordered to run consecutively to the sentence of imprisonment for public protection imposed on count 12. It follows that the custodial element of the sentences imposed comprised the minimum term of 42 months, followed by a determinate custodial period which would represent two-thirds to three-quarters of the sentence of 64 months imposed. 5. The judge also imposed an indefinite Sexual Offences Prevention Order in the following terms: "The defendant is prohibited from: 1. Approaching, seeking to approach or communicating by whatever means, directly or indirectly with [T] and [L]. (The victims in this case). 2. Having any unsupervised contact with any young person under the age of 16 years, except in the presence of that child's parent or guardian or other appropriate adult. (Save for any inadvertent or unavoidable contact with a child under 16 years). 3. Inviting or having any young person under the age of 16 years in his house, or any other residence where he may stay on a temporary basis. 4. Seeking or undertaking any employment whether for payment or otherwise which is likely at some time to allow him unsupervised access to a child under the age of 16 years." 6. T is the appellant's sister. In April 2011 her niece, the complainant L, revealed that she had been sexually abused by her father (the appellant). L's grandparents expressed some doubt as to the truth of the allegations she was making, whereupon her aunt (T) revealed that she too had been abused by her brother from a very young age. A complaint was made by L to the police and later T also made a complaint. 7. Count 1 charged the appellant with the rape of T between 10th November 1981 and 12th December 1982. T was born on 11th December 1976. Eleventh December 1981 was therefore her fifth birthday. The appellant was born on 27th March 1971. He was therefore aged 10 and 11 during the period when the alleged rape occurred. Further specimen acts of indecent assault and indecency were charged in counts 2 to 8 between 10th December 1981 and 26th March 1985. 8. T gave evidence that when she was five years old the appellant required her to suck his penis while he was watching pornography. On one such occasion he removed her underwear and inserted his penis into her vagina. She protested that it was hurting and he desisted. He kissed her with his tongue in her mouth. Following this incident the appellant threatened to kill himself by hanging, in order to prevent T from taking any complaint to their parents. Episodes of sexual abuse became more frequent after that incident. The appellant touched T's vagina and on one occasion inserted his fingers. He would use his tongue on her vagina and simulate sexual intercourse with her. On one occasion he produced a knife and threatened T that he would cut her throat if she disclosed what he was doing. On other occasions he told her that she would go to prison if they were discovered. 9. The abuse stopped during 1985 when the appellant was aged 14 years and T was aged nine years. There was no obvious cause for the cessation of the appellant's offending against T identified during the evidence in the course of the trial. The appellant simply stopped his conduct. 10. L was born on 8th July 1995. The appellant had custody of his daughter from shortly after her birth and they lived with his parents for some years. The sexual abuse commenced about three years before L made her ABE interview. It commenced when she was aged 13 years. The appellant encouraged her to drink cider with him which he had told her to fetch from the fridge. She became drunk and vomited. He told her to go to bed but followed her. She became aware of being naked in his bed while the appellant was rubbing his penis against her buttocks. She told him to get off and went to her own room. She ran out of the house naked, attempting to escape to T 's home, but the appellant followed and returned her. The following day the appellant was suggesting to L that she had been shouting that she was going to shag him and that he was going to rape her. That such an incident had happened in the street was known to the family. The appellant suggested that L had been making a fuss and had exaggerated events. 11. There was then a period when nothing untoward occurred until one night in October 2009 when L was aged 14. The appellant told her to go to her bedroom. He then sent her a text message in which he said: "Be mine for one night and I'll give you £100." She went to see him in his own room to ask what he was on about. He replied: "Let me shag you and I'll give you £100. You can do 'owt with any boys you want and you can come in whenever you want." He told her to go and think about it. The following night he sent her a photograph of his penis. She deleted the photograph and the text but not before she had shown the text to two of her friends. 12. The appellant continued with abuse by simulating sexual intercourse with L, masturbating himself in her presence and touching her vagina. He told her that if she told anyone he would be locked up and as a result the family would suffer. The abuse ceased when L was aged 14. 13. She was, at the age of 15, seeing a boyfriend of whom the appellant disapproved. Her aunt, T, told her that she thought the appellant might do violence to the boyfriend. L responded that if he did that she would tell her grandmother what the appellant had done to her. This led to T's suspicions, culminating in the revelation in April 2011. 14. The appellant's mother gave evidence that she knew nothing of the appellant's behaviour towards T. However, during the six year period when the appellant and L had lived with her, she had noticed inappropriate behaviour by the appellant towards L and had warned him against it. His response had been dismissive. 15. In interview the appellant did not respond to questions but gave a prepared statement denying the allegations. He gave evidence denying any inappropriate behaviour towards either his sister or his daughter. 16. In respect of count 1 the judge directed the jury that having regard to his age at the time, in addition to the normal requirements for the offence of rape, they must consider the capacity of the appellant to commit the offence. They must be sure that the appellant knew that the act he was committing was seriously wrong. With that description of the evidence we turn to the single ground of appeal against the appellant's conviction upon count 1. 17. On 7th May 2012 counsel advised that there were no grounds of appeal but also advised that there were grounds for appeal against sentence. Upon examination of the case, Miss Louise Sillis, a lawyer in the Criminal Appeals Office, noticed that the offence charged in count 1 took place when the appellant was aged 10 or 11 years. In 1981 and 1982 the appellant would have had an absolute defence to the offence of rape since there was then an irrebuttable common law presumption that a child under the age of 14 was incapable of committing the offence of rape - see R v Brimilow (1840) 9 C & P 366; R v Waite (1892) 2 QB 600 ; R v Fethney [2010] EWCA Crim. 3096 and R v Bevan [2011] EWCA Crim. 654. The common law presumption was not abolished until the enactment of the Sexual Offences Act 1993 . 18. It follows that the conviction upon count 1 was unlawful. It is regrettable that nobody associated with the case was aware of the need to research the state of the presumption at the time when the offence was alleged to have been committed. The trial seems to have proceeded upon the assumption that the prosecution had to prove the appellant's capacity to commit the offence by establishing his understanding that what he did was seriously wrong, but no one spotted that he was in law incapable of committing the offence at all. 19. The issue now arises whether the court should substitute a verdict for another offence. Section 3 of the Criminal Appeal Act 1968 provides: "(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence. (2)The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity." 20. No alternative count was laid in the indictment. The court's power is therefore limited to substituting a conviction which the jury could have returned, had they been properly directed, pursuant to section 6(3) of the Criminal Law Act 1967 which provides as follows: "6(3) Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence." 21. In Hodgson [1973] QB 565 this court held that a jury could on a count of rape convict of an offence of indecent assault since the allegation of rape impliedly included the allegation both of indecency and of assault. Since the victim was under the age of 16 no question of consent arose. 22. However, it was submitted on behalf of the respondent by Mrs Taylor that attempted rape is also an alternative verdict offence for the purpose of section 3(3) of the 1967 Act and therefore for the purpose of section 3 of the Criminal Appeal Act 1968 . 23. In R v Waite in the Court of Crown Cases Reserved, Lord Coleridge CJ expressly left open the question whether, notwithstanding the common law presumption in favour of defendants under 14, they could be convicted of attempted rape at common law. Lord Coleridge said this: "The rule at common law is clearly laid down by Lord Hale, that in regard to the offence of rape malitia non supplet aetatem; a boy under fourteen is under a physical incapacity to commit the offence. This is a presumtio juris et de jure, and judges have time after time refused to receive evidence to show that a particular prisoner was in fact capable of committing the offence. That is perfectly clear, and therefore, unless the Criminal Law Amendment Act has altered the common law, which cannot be successfully contended, this prisoner has not committed the felony charged. The question whether he could be convicted of the attempt does not arise; on that point R v Brimilow, though not in point, bears some resemblance to the present case; but it certainly seems to me that a person cannot be guilty of an attempt to commit an offence which he is physically incapable of committing; that question, however, can be dealt with when it arises. The conviction for the felony must therefore be quashed; but the prisoner will of course undergo the sentence of imprisonment on the conviction for assault, as to which there is no objection." We are unaware of and neither have the researches of counsel revealed, any occasion in the following 120 years on which that issue was confronted by the court. We are not however prepared to assume that such an occasion did not take place. 24. At common law no offence of attempt could be committed where it would have been impossible, even in theory, for the defendant to succeed in committing the full offence - see Horton and Smith [1975] AC 476 . Since the enactment of the Criminal Attempts Act 1981 , which came into force on 28th August 1981, a defendant may be convicted of an attempt to commit an offence whose full commission was impossible. In the present case there can be no doubt that the jury's verdict implies that they were sure that with the intent to have sexual intercourse with T, without her consent, and knowing that it was seriously wrong to do so, the appellant did an act which was more than merely preparatory to sexual intercourse. The issue which arises on the present facts is whether as a matter of law there was no such offence of rape by a boy under 14 and therefore no offence of attempted rape available to the jury as an alternative verdict. Mr Smith's submission is that the legal presumption was that the appellant was physically incapable of sexual intercourse and therefore could not be guilty of the attempt. 25. Mrs Taylor submitted in writing that the presumption renders the completed physical act impossible for the purposes of the common law. For that reason the facts are presumed to be such that the commission of the full offence is impossible. However, section 1(2) of the Criminal Attempts Act 1981 expressly provides that a person may be guilty of attempting to commit an offence even though the facts are such that the commission of the full offence was impossible. This case, she submits, is no different in principle from that of the pick pocket who attempts to pick a pocket which is empty. 26. The competing submissions raise interesting questions of law which it is unnecessary for the court on the present occasion to resolve. We consider that were it necessary to do so further researches into the origins of the common law presumption may well be required, together with a search of the cases since 1892. Both counsel realistically acknowledge that the only relevance of a substituted conviction in the present case would be its impact upon the sentence ultimately to be imposed upon the appellant. It is recognised on behalf of the respondent that the sentence of five years and four months imposed upon count 1 was designed to reflect the totality of the appellant's criminality in counts 1 to 8 inclusive and that the court has ample powers so to distribute the appropriate sentences as also to impose the appropriate sentence. 27. We shall therefore substitute for the conviction of rape in count 1 a conviction for indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956 . That has been the conventional method of dealing with the situation which has arisen in the present appeal. 28. We now turn therefore to the appeal against sentence and in so doing we shall consider also the appropriate sentence for the substituted conviction in count 1. The first issue is whether it was properly open to the trial judge to make a finding that the appellant presented a significant risk for causing serious harm to the public by the commission of further specified offences. We wish to pay tribute to the judge for the full and transparent explanation of her reasons for making the finding she did. First, she noted that all the offences committed against L were specified offences. Second, she noted the opinion of the pre-sentence report writer. Both children were vulnerable by reason of their ages and the distorted power relationship between each of them and the appellant. Both had suffered enduring psychological injury. The offences had taken place over a prolonged period of time. In the case of L there had been a gross breach of familial trust. In the opinion of the report writer: "... he poses as being a high risk of sexual recidivism, particularly if he has regular access to a victim." In further assessing risk, he said: "There is a high risk to female children of any age. The risk is one of sexual abuse, short and long term psychological abuse and possible physical harm from rape. Family members are particularly at risk and this may extend to any child under his care or with whom he has regular contact. The two victims of his offences are particularly at risk." Third, the judge noted the threats which had been issued to both children to discourage them from reporting. Thus the learned judge concluded that the appellant was a dangerous offender within the meaning of the statutory test. In so doing, she expressly took account of the submissions made by Mr Smith on the appellant's behalf. They are submissions repeated to this court in support of the appeal. 29. The offences against the appellant's sister were committed when he was aged between 11 and 14 years. He then desisted from further offending for a period of over 20 years before the offences against his daughter commenced. The offences committed against L did not involve penetration and while they were serious enough, they were not as serious as those committed against his sister. The offending against his daughter also, as we have noted, appears to have ceased well before she made her complaint to her family, but it has to be accepted that she remained at risk living in the same household. 30. The judge concluded that notwithstanding these factors, the appellant, who was in denial, posed a significant risk of serious harm, not just to any junior female members of his own family, but to any young female he might come across in future. We well understand that having listened to the evidence and observed the appellant during the course of the trial, the judge reached the conclusion she did. However, our conclusion, based upon the objective factors to be observed in the evidence, is that while there was undoubtedly a risk of harm, it was not, having regard to the other means of protection available to the judge, a significant risk of serious harm. The appellant would, on any view, be serving a substantial sentence of imprisonment. When he was released conditions would be attached to his licence which would be designed to manage any remaining risk to the public. The judge had the power, which he exercised, to impose a Sexual Offences Prevention Order of unlimited duration. In our judgment, such risk as the appellant posed could adequately be contained by a determinate sentence of imprisonment. 31. We therefore turn to the issue what length of determinate sentence was appropriate. This was an unusual case. There had been a campaign of sexual misconduct conducted by the appellant towards his infant sister while he himself was a child. It was followed 20 years later by a lengthy period of gross sexual harassment against his own daughter. An important consideration for the judge was the degree of harm which had resulted. The judge described the impact of these offences on the victims in her sentencing remarks as follows: "In the course of her evidence [T] told the jury that she had decided never to speak of these things. She said nothing as a child because you threatened to kill yourself or to kill her. You said it would be her fault if you killed yourself and your mum and dad would be really sad. You said she would go to prison and not you, all thoroughly frightening for a little girl. Further, you told her she would be damaged goods and that nobody would ever want her. She considered telling her best friend ... at school but she was frightened that [she] would not want to be friends any more or that [her] mum would not let [her] go out to play with her or would not let them go out together. In the most recent impact statement she speaks of the fact that she found it difficult to make friends and ... felt different from other children because of what was happening. That not doing as she was told always resulted in something horrible happening and she found the whole thing terrifying. In evidence and again in her recent statement she states that she never expected to speak of these things. She knew it would rip your mother's world apart because of course her mother and your mother are the same lady and that lady is also [L's] grandmother. It was clearly evident from your mother's enormous distress when giving her evidence how much it has also affected her. [T] did not want her husband or her, your parents, to ever know about these things ... She describes the matter as changing her life forever and now that it has come to the surface, not only does she have to continue to live with what happened but she now knows her niece's experience to abuse, her husband knows what has happened, and this is now an enormous worry for the family." The judge then went on to describe the effect upon the appellant's daughter: "[L] too showed obvious distress and in the witness box and of course in her video interview with the police ... She could not bring herself to begin to talk about it and the first thing she said, 'I know my dad needs help and everything'. Her evidence, too, was that you used to tell her not to say anything to her nan or grandad because you would get into trouble and be locked up and they would be upset. You made her promise not to say anything and she too did not want to upset the family. This child loved and trusted you, her father, her sole carer. Indeed in her recent impact statement ... she states, 'I think I still love my dad but I cannot work out why he did these things that he did to me. Maybe one day he will admit it and I will get to know why.'" 32. We appreciate that the judge so distributed her sentences between the counts of which the appellant had been convicted as to ensure that his overall criminality was reflected in the total sentence. She considered that subject to the issue of risk on release, the total term which should be served in custody was not less than seven years. We say that because the judge imposed two consecutive custodial terms. First the minimum term of 42 months on count 12 and second, 64 months upon count 1. As to the latter determinate sentence, the appellant was liable to serve a minimum period of two-thirds of that sentence in custody, or 42 months, making 84 months or seven years in all - the equivalent in modern terms of a determinate sentence of 14 years. 33. In our view, had it stood alone, the sentence of five years and four months' imprisonment upon count 1 for an offence of rape committed by an 11-year-old would have been excessive. We shall impose for the substituted offence of indecent assault in count 1 a sentence of 12 months' imprisonment. Nevertheless, knowing that what he was doing was seriously wrong, the appellant continued into his mid-teens committing gross sexual acts against his sister, when she was aged 6, 7, 8 and 9 years. We consider that the total sentence upon counts 1 to 8 should appropriately be four years' imprisonment. 34. As to the sentences in respect of the more recent offences against his daughter, the appellant was by then the father of the victim and himself a mature adult. Those offences did not reach the seriousness of the offences committed against his sister, but his culpability was much greater. Recognising that the minimum term imposed upon count 12 was designed to reflect all of the offending against his daughter, we conclude that the alternative determinate sentence of seven years' imprisonment was well deserved. 35. We agree with the learned judge that the sentences for each group of offences should be made consecutive to one another, making a determinate sentence of 11 years in all. We reject Mr Smith's submission that a total sentence of seven years in any sense would reflect in total the appellant's criminality. 36. We propose to achieve that result by imposing sentences of three years' imprisonment in respect of count 4, and four years' imprisonment upon count 5 in the indictment. We have selected those counts because they represent gross sexual offending against a powerless young girl when the appellant was of an age to comprehend the enormity of his actions and of his threats. We shall order that all sentences for counts 1 to 8 inclusive shall be concurrent with each other, making in respect of that group four years in all. We shall order that the sentence on count 12 shall be seven years' imprisonment. Accordingly, the sentence of IPP and its minimum term will be quashed. All other sentences in that group will remain undisturbed. All the sentences in counts 10 to 14 inclusive will be concurrent with each other, therefore making seven years, but consecutive to the four year sentence imposed upon counts 1 to 8, producing a total determinate sentence of 11 years' imprisonment. 37. Since we have allowed the appeal in respect of the indeterminate sentence, we have concluded that it was entirely appropriate to impose a Sexual Offences Prevention Order and Mr Smith has not sought to argue either that such an order would be inappropriate in the event that a determinate sentence was imposed, or that its terms were in any sense unnecessary. 38. We would have interfered if the appeal had otherwise been dismissed because it seems to us that such an order would have been unnecessary if the appellant had been serving an indeterminate sentence. To the extent that we have indicated therefore, the appeal is allowed.

2012_11_02-3059.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/2458/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/2458

eaea4dd5beb7f95896c978d665aeb3197210298288219c8194550e249205dd2f

[2009] EWCA Crim 1371

EWCA_Crim_1371

crown_court

Neutral Citation Number: [2009] EWCA Crim 1371 Case No: 200604565 D5; 200604916 D5; 200604920 D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 23rd June 2009 B e f o r e : LORD JUSTICE GOLDRING MR JUSTICE BURTON RECORDER OF KINGSTON-UPON-HULL (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - R E G I N A v JAMES LEE DUNN LUKE CHARLES TURNER CRAIG NOEL DOOLEY - - - - - - - - - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 1371 Case No: 200604565 D5; 200604916 D5; 200604920 D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 23rd June 2009 B e f o r e : LORD JUSTICE GOLDRING MR JUSTICE BURTON RECORDER OF KINGSTON-UPON-HULL (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - R E G I N A v JAMES LEE DUNN LUKE CHARLES TURNER CRAIG NOEL DOOLEY - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr J Bennathan QC appeared on behalf of the First Appellant Mr M Connor appeared on behalf of the Third Appellant Mr T Raggatt QC & Miss S Hancox appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE GOLDRING: On 20th July 2006, in the Crown Court at Birmingham, James Dunn, Luke Turner and Craig Dooley were convicted of murder, Dunn by a majority of ten to two. On 21st July they were sentenced to life imprisonment, with a minimum term of 26 years for Dunn and 30 years for Turner and Craig Dooley. Co-accused called Liam Dooley and Gary Higgins were also convicted of murder. Dunn appeals by leave of the Full Court. The Full Court granted leave "on the basis that [the evidence of Maria Vervoort] may be different in material respects from what she said subsequently at the trial of Conrad Jones". 2. Luke Turner and Craig Dooley renew applications for leave to appeal against conviction after refusal by David Clark J. For reasons which have already been explained to their counsel and will become apparent, we adjourn their renewed applications for leave. The facts 3. The deceased, Clinton Bailey, was released from prison on 1st April 2005. At shortly before 9 pm on 4th April 2005, outside the Three Horseshoes public horse in Coventry, he was shot. He died on 16th April 2005 in hospital. It was the prosecution case that he had become involved in a dispute between someone called Ronnie Murray, who was a friend of his, and Liam and Craig Dooley, who are brothers. There had been a previous incident in which Murray had punched Liam Dooley. The disputed detail of what led up to that incident does not for present purposes matter. 4. Murray claimed that Liam Dooley wanted £10,000 or he, Murray, would be shot. Murray was not prepared to pay. He contacted Dunn, who was a friend of his. He asked him to sort it out. Dunn told Murray that Liam Dooley would not drop it. Dunn's case was that he knew about the dispute, was asked to help by both sides but made it clear that he did not wish to be involved. 5. The deceased became involved. He knew both Murray and the Dooley brothers. It was the Crown's case that he offered to mediate. That involvement, said the Crown, led to his being shot. The events of 4th April 2005 6. At about 11.05 that morning the deceased was dropped off in the vicinity of Proffit Avenue in Coventry, where Liam Dooley lived. The Crown's case was that there was a meeting between the deceased, Liam Dooley, Craig Dooley and a third man. The deceased called Murray twice. The first time he passed the telephone to Liam Dooley. They argued. Liam Dooley told Murray to forget it and to see what would happen. He then hung up. The second time was about half an hour later. The deceased called again. He referred to lads turning up with metal things. Murray took that to mean guns. He asked Murray, according to Murray, to bring the money. Murray said he was afraid for the deceased. In the background he could hear Liam Dooley's voice saying that they were going to put him in the van. 7. Murray said he tried to telephone Dunn. He could not get through until that afternoon. According to Murray, Dunn told him that the deceased was all right and had left them. The Crown suggested that that was clear evidence that Dunn had been present at the meeting, knew about the threats to the deceased and knew that at that stage the deceased was uninjured. If he was present at the time of the second call from the deceased, Dunn was present when, if Murray is right, guns were produced. 8. Murray's evidence was corroborated to this extent. The telephone evidence indicated that there had been contact between Dunn and Murray twice that afternoon. 9. Dunn disputed Murray's account. He said he had not been near Liam Dooley's place. He had not seen the deceased. They did not speak about the incident at all. He did not know therefore whether or not the deceased was injured. 10. Liam Dooley's account of the meeting was that he spoke to the deceased because he wanted a stolen car in order to rob a drugs supplier. Liam Dooley said that Dunn had nothing to do with the meeting. 11. At 12.17 that morning the deceased telephoned a man called Conroy to ask him out for a drink. He said nothing about being threatened with guns. The Binley Park Inn 12. At lunchtime on 4th April 2005 the witness Maria Vervoort went to the Binley Park Inn in Coventry. She was with Higgins, with whom at that time she was having a relationship. Higgins contacted Dunn. He wanted some cocaine. Dunn arrived with another man. Vervoort said she did not know that other man. She said there was talk about trouble with Murray (referred to, she said, as "Ronnie") and that the deceased had been running his mouth off. Vervoort said that Dunn spoke of having already threatened the deceased once. 13. Dunn and Higgins disputed Vervoort's account. The conversation, they said, had not been about Murray or the deceased. The car journey from the Binley Park Inn to Merrick Lodge 14. Dunn drove Vervoort and Higgins to the Merrick Lodge, where Higgins and Vervoort were staying. The unknown man who had come to the Binley Park Inn was in the car too. He was in the front passenger seat. Vervoort said that during the journey Higgins called the deceased. The deceased returned the call. The phone was put on to speaker. The deceased said the lads, said to be a reference to Liam Dooley and Dunn, were going to get it because there had been trouble. The unknown man was agitated. He said that they were going to shoot him (the deceased). They all laughed. Dunn said, "We're going to sort this out". Higgins said that the deceased trusted him and he would get him to the pub. When they had arrived at Merrick Lodge, Vervoort said she got out first. The others remained in the car for some five minutes. 15. Vervoort was cross-examined. Among other things, it was put to her, as was the case, that in a witness statement and when being interviewed by police she had attributed the threat to shoot to Dunn and not the other man before correcting herself. We shall return to this topic. 16. Dunn said there was no conversation about the deceased. He recalled no conversation in the car. The passenger was not agitated. There was no talk about shooting the deceased. 17. Higgins too disputed Vervoort's account. He said that during the journey he did speak to the deceased. They discussed meeting up for a drink. Dunn and the passenger were smoking weed. The phone was never on speaker. The, music in the car was too loud to hear what was said. There was no conversation about shooting or luring the deceased anywhere. Dunn's evidence about what he did after dropping Higgins and Vervoort off at the Merrick Lodge 18. There was evidence of telephone traffic between Dunn and Liam Dooley that afternoon. We shall return to that topic. Dunn said he called to ask for money. Liam Dooley owed him £700 for drugs. He said that Liam Dooley called him to ask where he, Dunn, was. Natalie Sealey 19. At 4 pm Natalie Sealey, a witness whose statement was read, went to the deceased's house. She said the deceased was sitting with a hammer, looking frightened. He told her to lock the door and close the curtains. He said he "might not be alive tomorrow". The evening of 4th April 2005 The Three Horseshoes public house 20. Vervoort said that Higgins telephoned and told her to go to the Three Horseshoes public house. He wanted her to meet a friend. She said she did not want to go because she knew that something was going to happen. Higgins, she said, threatened her. He said that if anything went wrong he wanted her as a witness. He said that "little fella was coming down". Vervoort took that to be a reference to Dunn: that they were going to shoot the deceased. Higgins was to lure him into the car park. He was then to be shot. 21. She went to the Three Horseshoes. Her account of not being happy to go into the public house was to some extent supported by the taxi driver who took her. She had to be persuaded to leave the taxi. She did not want to. She described the deceased playing pool with Higgins. The deceased went outside to use his telephone. He returned to say they were coming down. Higgins said not to worry, he would go outside with him. They went outside. Higgins returned to the bar just after a loud bang. He told her to get a taxi because they were going. He wiped the glass, she said, he had been drinking from. She learnt they had a lift and to forget the taxi. During the journey back Higgins sought to telephone Dunn. He tried the deceased's telephone number. He could not get through to either. 22. Vervoort's telephone call for a taxi was made two minutes before a call said to be to the deceased from Liam Dooley. 23. When they returned to the Merrick Lodge, Higgins said, according to Vervoort, "that twat Dooley froze. He just stood there". He said too, according to Vervoort, that someone else shot him; that the deceased jumped over a wall and they shot him. 24. Higgins telephoned Conrad Jones. Twenty minutes later Conrad Jones turned up, said Vervoort. He was angry at the "stupid idiots for messing up the shooting". 25. When asked why she had not telephoned the police when she knew what was afoot, Vervoort said that she had been too scared. 26. Higgins' account was wholly different. When he went outside with the deceased he said he saw two men wearing balaclavas alight from a vehicle. One of them shot the deceased in the stomach. The other put the gun to Higgins' face and threatened him. That person followed the deceased over a wall. There was a volley of shots. He never mentioned the "little fella". He would not refer to Dunn in those terms. 27. Higgins said he did telephone Dunn. That would have been about cocaine. The mobile phone evidence 28. The prosecution placed considerable reliance on mobile phone evidence. We have now been provided with the schedule to which in the course of his summing-up the judge referred. We summarise. 29. Liam Dooley called the deceased at 20.51. That was said to be the call to get him outside the pub. Although Liam Dooley in the trial said he was not near the pub, that call went through the best serving cell site for the pub. 30. Between 5.47 pm and 7.40 pm Liam Dooley was in contact with Craig Dooley three times. He had three conversations with the deceased between 6.17 pm and 6.24 pm. He called Dunn at 5.57 pm and 6.05 pm. There was an abortive call between the two of them. He called Turner at 6.06 pm. Liam Dooley later called Craig Dooley twice and Dunn twice. They were comparatively short calls. Liam Dooley said that the calls were to do with money for drugs. The Crown said they were to do with the setting up of the killing. 31. Luke Turner had contacted Liam Dooley earlier in the day. 32. There were calls between Higgins and Dunn on the day of the shooting. There was one call after the shooting. It was said the calls were about drugs. 33. In all, Dunn spoke to Liam Dooley some six times after 5.30 pm. He spoke to Luke Turner three times. There was no telephone contact between the defendants between 8 and 9 pm, in other words immediately leading up to the shooting. The firearms evidence 34. Two hand guns were used. A single shot from one hit the deceased in the chest. The other had been fired at least ten times. Two of the three shots hit the deceased in the back. The hearsay evidence 35. For present purposes we can deal with this briefly and in very broad terms. Before he died, Clinton Bailey, the deceased, was said to have named those who attacked him. Anthony Conroy took the deceased to hospital. He said the deceased named Luke Turner and the two Dooleys. He added a fourth man the next day, saying he was wearing a balaclava. 36. Kay Penman, the deceased's mother, said that the deceased told her on 4th April that it was Craig and Liam Dooley and Luke Turner (as it came out finally in her evidence). 37. Lisa Hulme said that he named those three on 5th April 2005. 38. Alan Christian said that on 6th April 2005 he named the two Dooley brothers and Dunn, together with a fourth man he was unable to identify. 39. Natalie Sealey said that he told her it was Dooley and Luke Turner. 40. On 5th April 2005 the deceased told the police he could not remember much, but he was attacked by two masked men, one with a hand gun, the other with a shotgun, and that the person with the hand gun had fired and hit him. 41. The judge admitted the hearsay evidence. The submission on behalf of Dunn that there was no case to answer 42. At the close of the prosecution case there was a submission on behalf of Dunn that there was no case to answer. In finding that there was, the judge summarised the evidence in this way. First, he said there was evidence that Dunn actively participated in threats made to the deceased on the morning before he was shot. That came most clearly from Maria Vervoort. 43. Second, that evidence, in the judge's view, was reinforced by the evidence of Murray. Dunn had been able to reassure him that, the deceased, had got away all right from the threatening situation of earlier that morning. 44. Third, said the judge, there was the evidence of Vervoort about the conversation involving Dunn on the afternoon of 4th April at Binley Park Inn and, as the judge put it, "more importantly", in the following car journey. The jury would be entitled, said the judge, "to conclude that a decision was made by Jamie Dunn, Gary Higgins and the other passenger in the car jointly to get Clinton Bailey to the Three Horseshoes so that he could there be shot. Such an involvement on the part of Jamie Dunn is rendered the more plausible if the jury accepts the evidence of his involvement in the threats earlier in the day..." 45. Fourth, the judge referred to the telephone evidence. He observed that it was not suggested that Liam Dooley and Luke Turner did not have cases to answer. As he put it, "if the jury are satisfied that those defendants were indeed involved in the murder they would in my view be entitled to infer in the absence of evidence to the contrary, that the subject of those conversations was the projected shooting of Clinton Bailey, and that the plans for what actually occurred ... were made in a series of inter-related conversations over two hours in which Jamie Dunn fully participated". 46. Finally, the judge referred to Dunn's responses to the prosecution case. In interview he was unforthcoming. His defence statement suggested that such responses as he made were not truthful. Craig Dooley's and Luke Turner's grounds of appeal 47. Although set out in different ways in different documents, the essential submission in both cases is that the hearsay evidence of the five witnesses should not have been admitted. The grounds do not refer to the recent decision in the European Court of Human Rights, sitting as a Chamber, in the case of Al-Khawaja & Tahery v United Kingdom [2009] ECHR 26766/05. In the first of those two cases a deceased's witness statement was admitted under section 23 of the Criminal Justice Act 1988 . In the second the statement of a witness too fearful to attend trial was admitted under section 116 of the Criminal Justice Act 2003 . The European Court of Human Rights held that the admission of that hearsay evidence, amounting as it did to the sole or decisive evidence against the appellant, involved an infringement of the right to a fair trial under Article 6, and in particular a breach of Article 6(3)(d). The implication of the court's decision in those cases was recently considered by this court in R v Horncastle & others [2009] EWCA 964. In that case the court held, and again we summarise very broadly indeed, that the right to confront a witness for the prosecution under Article 6(3)(d) was not absolute. It upheld convictions where the hearsay evidence was the sole or decisive evidence. The case of Horncastle is shortly to be considered by the House of Lords. It seems to us that the adjourned applications for leave to appeal against conviction should themselves be adjourned pending the outcome of the case of Horncastle & others in the House of Lords. Dunn's grounds of appeal 48. His position is different. Although there was some hearsay evidence concerning him, it was in the circumstances peripheral and is not suggested by Mr Bennathan on his behalf to be the basis of his conviction. 49. In Dunn's case it is submitted that in the light of "significant further material" concerning the witness Vervoort, the court cannot be confident that a jury would still accept her as an honest and reliable witness. Alternatively, it cannot be confident that a jury would still see her account as necessarily implicating the appellant in the murder. As a backdrop to the appeal of Dunn, the importance of the evidence of Vervoort is summarised. 50. Mr Bennathan submits that the evidence against the appellant was far from overwhelming. There was no specific role assigned to him. Reliance was placed on the detail of a conversation in a car journey. If there is any evidence suggesting that she is unreliable or untruthful, that would call into question the safety of the appellant's conviction, submits Mr Bennathan. There was, he submits, an ample basis to view Vervoort as a witness whose account needed to be approached with great caution. The further significant material indicates that she is a witness capable of changing her account to meet contradictory evidence. On occasion she can be shown to have lied about events surrounding the killing. The material, when taken as a whole, is said massively to undermine her general credibility such as to affect every assertion she makes. Mr Bennathan reminds us of the judge's observation in the summing-up that "Jamie Dunn says her evidence about that [journey in the car] is simply lies. If you think it is, that is the end of the case against Jamie". Maria Vervoort and Conrad Jones 51. Vervoort alleged that she was under pressure to withdraw her evidence or not turn up for the trial. It became clear that she was removed from the local area and was in Newcastle when the trial began, in circumstances to which we shall shortly come. As it was put in the indictment which was laid against Jones, he, with others, "did a series of acts which had the tendency to pervert the course of public justice in that they offered a witness [Vervoort] inducements not to give evidence in criminal proceedings and also made physical threats towards the same witness to prevent them [sic] giving evidence in the same criminal proceedings". 52. Jones was tried three times. The first time was in January 2007. That trial was aborted. The second was in February 2007. The jury could not agree. The third was in August 2007. He was convicted. In the course of that sequence of trials Vervoort gave evidence three times. The credibility matters deployed at trial and some subsequent developments regarding them 53. As a background to his submissions based upon the new material, Mr Bennathan refers to the material deployed at the appellant's trial. Cross-examination was primarily on behalf of counsel instructed for Higgins. That had the benefit to the appellant Dunn of his previous convictions not being before the jury. No criticism is made of that approach. Higgins obviously had a closer knowledge of Vervoort than Dunn. 54. The significant factors said to go to her credibility adduced at the trial were these. 55. First, in a family case at Coventry County Court in 2002 Her Honour Judge Fisher found that she had lied in her evidence. She rejected her account. We need not refer to the detail, although we have it well in mind. 56. Second, Vervoort claimed that her relationship with Higgins began with her being kidnapped and forced to have sex with him. She suggested that he was frequently violent towards her. She agreed that she had never been to a doctor. In the later trials she said that Gary Higgins had not been violent "at first". 57. Third, the police told Miss Vervoort that if she continued to associate with Gary Higgins her young son might be taken into care. 58. She accepted in cross-examination that Detective Constable Farr, the officer dealing with her allegation of assault in 2005, had raised this. In her significant witness interview she said her motive for coming forward was because "it's the right thing to do and it also helps me to get away from it all as well". The interviewing officer recorded that. He also warned her that she was in danger of damaging her credibility if it was thought she had co-operated simply to get rid of Gary Higgins. At a later trial she said the police who attended after she had been allegedly attacked on 23rd June 2005 told her that her child might be at risk from being in the same household as Higgins. 59. These events left her with the impression that continued association with Higgins would lead to her son being taken into care. That went to her credibility, submits Mr Bennathan. 60. Fourth, in October 2005, as part of a police protection scheme, she was living in Bridlington in East Yorkshire. On 17th October 2005 she reported that she had been approached by two men who threatened her on behalf of Conrad Jones. She spoke too of a "chance meeting" in Bridlington with a friend from home called Patricia Gough. That account was recorded and signed in a witness statement. When the police spoke to Miss Gough it became apparent that that had been an arranged meeting. Vervoort subsequently confessed that she had lied about it. She said she wanted company, but was concerned about losing her place on the protection scheme if she admitted contacting friends. She agreed that she would have persisted in the lie on oath, but for Miss Gough telling the police the truth. The suggestion is that if Vervoort was prepared to lie to get some company, how much more would she be prepared to embellish an account so as to ensure that all those she identified as associates of Higgins were fully implicated. Our view on the evidence deployed at trial 61. It is not, in our view, surprising that these matters did not cause the jury to reject Miss Vervoort's account. Such lies as she may have told were in a wholly different context. Moreover, as it seems to us, the subsequent developments regarding those matters are peripheral and do not begin to call into question the safety of the murder conviction. It seems to us that to pretend to have met a friend by chance when in fact it had been arranged does not begin to suggest that Vervoort would lie falsely to implicate Dunn in an offence of murder. The subsequent matters said to cast doubt on her credibility: Vervoort's allegation at the second trial that Conrad Jones had ordered the murder 62. At the second trial Vervoort said that Jones had ordered the murder. There was no mention of that in any of her various witness statements. When cross-examined about it, she said she had told Detective Sergeant (as he then was) Slevin that Jones had ordered the killing but had done so "off the record". She said that she had been told "it was put to Mr Raggatt [for the prosecution] and he said there wouldn't be enough evidence anyway to take him to court". In re-examination she said she had heard that Jones had ordered the killing. She had believed it. Her belief was based upon what others had told her. 63. Mr Bennathan accepts that there may have been undisclosed conversations between Vervoort and the police. The re-examination conducted as it was by Mr Raggatt suggests, he submits, as much. Mr Bennathan's criticism is one of process. The police should not have told her of Mr Raggatt's involvement. The court, he submits, cannot have confidence in the handling of this witness. 64. As it seems to us, the position is this. We must assume that the prosecution have disclosed what they are obliged to disclose. What the witness said in the present regard does not go to her credibility. If, as she says, the comment by DS Slevin about Mr Raggatt was made, it might have been unwise. It does not, as it seems to us, begin to call into question the safety of the conviction. 65. As to what she said about Jones and what she knew, according to her by way of hearsay, that may be thought to be consistent with her evidence as to what Jones said when he came to the Merrick Hotel on 4th April 2005. As we have already said, according to her he was angry at the "stupid idiots for messing up the shooting". When Vervoort first spoke to the police about the murder 66. On 23rd June 2005 Vervoort called the police. She said she had been attacked at home. That attack was not fully investigated as she declined later to co-operate with the police. She was to make it clear that she believed the attack had been an act of revenge by friends and associates of the deceased. She said that shortly after the attack Higgins told her he would find the attackers and exact revenge on them. One of the officers investigating that crime was Detective Constable Farr. 67. The first police records of contact in relation to the murder are on 12th September 2005. On 14th September she was interviewed as a significant witness. She made a witness statement. In that statement she, among other things, claimed that the relationship with Higgins had been under duress. She gave an account of his criminality. She implicated the appellant Dunn in the shooting of the deceased. 68. When cross-examined in Jones' third trial, Vervoort said she had told the police at her local police station about the murder "off the record" some months before. She said it was officers from the Little Park Police Station, the local police station, to whom she spoke. She had been given, she said, Detective Sergeant Slevin's telephone number as the man she should contact. 69. Enquiries have been made as to whether Vervoort did mention the murder to the officers at the local police station. Police Constables Barnes and Barratt (the last now Kimberley) have been spoken to. They say that conversations with Vervoort were about the drug dealing of Higgins and about Jones. There was no reference to the murder or to the deceased. 70. In a recently served witness statement of Inspector Slevin (as he now is) he mentions indirect contact with Vervoort in late August or early September 2005. A detective constable from Little Park Police Station enquired on Vervoort's behalf whether she would qualify for witness protection for her and her child. Slevin advised that as far as the murder was concerned she was not a witness and did not qualify for such protection. A week or two later she came forward to become a witness. 71. Mr Bennathan submits that the jury should have been told that she had been refused protection. That provides, he submits, an additional motive for her to become a prosecution witness. Had it been disclosed, she could have been cross-examined upon it. 72. We accept that these were matters for disclosure or investigation if not then apparent. However, it does not seem to us that Mr Bennathan's submissions provide a sound argument to impeach the safety of the conviction. It seems to us implausible that the jury would think that Vervoort might implicate the appellant Dunn falsely in order to obtain protection. The car journey and the account about the shooting 73. On 12th September and 13th September 2005 Vervoort gave accounts to the police of what was said in the car journey from the Binley Park Inn to Merrick Lodge. The police made handwritten notes. Mr Bennathan has taken us through them with great care. On neither day, assuming the notes' accuracy, did she say she had heard the comment, "That's it, I'm going to shoot him". The first time she said that was on 14th September 2005 during a tape recorded interview. She said the comment "shoot him" was made. Detective Sergeant Slevin noted that that was the first time she had said that. 74. There was no cross-examination on this topic. The Crown submit that the notes were disclosed during or shortly before the trial. Whatever the recollections of counsel who represented the appellant and Higgins might now be, it seems to us clear, having heard Mr Raggatt on the topic, that they were disclosed. Leading counsel have confirmed that there was no tactical reason not to pursue such cross-examination. Counsel for the appellant has made the point that, and we paraphrase it to some extent, had he seen the material it would have been deployed. It may be that the material or its significance was missed. It is impossible now to say why it was not deployed. 75. Mr Bennathan submits that whatever the reason for the absence of this evidence before the trial jury, it might have led to a different verdict in the case. It was a highly important piece of evidence going to the issue of involvement. 76. We observe that had there been cross-examination such as is envisaged, that would have laid open the notes for re-examination. Within them, when read as a whole, there was evidence which was clearly very damaging to the appellant. We of course accept, as Mr Bennathan submits, that counsel did not for such a tactical reason decide not to deploy the material. 77. This is plainly not fresh material. Mr Bennathan submits that we should consider the evidence under section 23(2) (d) of the Criminal Appeal Act 1968 , which requires us to have regard to "whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings". We are prepared, without deciding the point, to consider this evidence de bene esse. 78. We bear in mind that, as Mr Raggatt points out, there was cross-examination on a very significant aspect of what Vervoort said about the shooting: see paragraph 15 above. That did not lead the jury to reject her account. It does not seem to us, having regard to the matter in the round, that cross-examination such as suggested by Mr Bennathan would materially have affected the outcome of this case. At whom was the comment in the car about shooting directed? 79. In her evidence at the appellant's trial, Vervoort said that the comment in the car about shooting was with reference to the deceased. She said too that "the man in the passenger seat said again he was going to shoot Clinton". 80. Mr Bennathan submits that in the third Jones trial Vervoort said that the comment had been made, but the context suggested it was likely to have been aimed, not at the deceased, but at Murray. In the circumstances he submits, the jury in the appellant's trial had been misled in a very important matter. It cast doubt upon Vervoort's integrity and reliability. 81. We have looked with care at the relevant extracts from the cross-examination to which we were taken. It is not necessary now to set them out. The position in the round, as it seems to us, is this. The witness said persistently she knew that someone was to be shot. Dunn and Higgins were involved. Nearer the events, both in interview and in the first trial, she said it was the deceased who was to be shot. The deceased was in fact shot. It does not seem to us in all the circumstances that what she said in the third trial calls into question her credibility, as Mr Bennathan submits, or affects the safety of the verdict. 2nd June 2006 82. Vervoort said that on 2nd June 2006, at Nottingham railway station, she met her sister, Rachel Nally. Rachel Nally took her outside the station where Jones was waiting. He, among other things, threatened her. There is, submits Mr Bennathan, substantial reason to doubt that that face to face meeting actually occurred. He so submits for this reason. Jones instructed his lawyers to commission cell-site research. The report which was prepared, and which Mr Raggatt accepts, did not indicate that Rachel Nally, using phone 679, her telephone, was in Coventry on 2nd June 2006. Vervoort's phone (991) made calls which suggested it remained in Burton-on-Trent for the day. Neither phone called the other on that day. That pattern contrasted with the pattern for 29th May 2006, the date when a first meeting at Nottingham railway station between Vervoort and her sister Rachel Nally was spoken of by Vervoort. 83. The witness' response in the Jones trial in cross-examination was that a friend must have borrowed the 991 phone. 84. Mr Bennathan draws the court's attention to the different pieces of evidence which indicate that Vervoort had always spoken of having one phone at this particular time, namely 991. It was only after she had been directly challenged that she claimed, as she did, that she had a multiplicity of phones when living in Burton. 85. As to the possible use of her 991 phone, Vervoort said that a friend called Paula frequently borrowed it. She might have had it on 2nd June and she might have been using it on that date. As an explanation for the number of Vervoort's friends and family called by that phone, she explained that Paula had become friendly with many of her social circle. 86. At the end of cross-examination in the third Jones trial, Vervoort was asked to find Paula's number in her mobile phone book. She found a number stored under the name "Peaches". She said that Peaches was Paula. Since the final Jones trial, those acting for the appellant sought further details and documents about the 991 phone and the Peaches/Paula number. 87. To seek to test the proposition that Peaches or Paula was a close friend of Vervoort at the time of her stay in Burton, a check has been made as to how often 991 and 167 were in touch one with the other. There was no call or text between them. Mr Bennathan submits that that turns what was already an implausible account into an absurd one. 88. He submits that, when viewed overall, the phone material raises doubts as to Vervoort's claim that she travelled on the day she said she did and saw Jones. It suggests that the account of the Nottingham confrontation was false. That, it is further suggested, is emphasised by what she said about "John", a topic to which we shall very shortly come. 89. In summing up the evidence regarding 2nd June in the third Jones trial, His Honour Judge Orme indicated that there was some uncertainty about the date. The prosecution accept that the meeting to which Vervoort referred was probably on 2nd June. Mr Raggatt told us that he relies on the witness' account. 90. We shall approach the issue in this way. Does what Vervoort said about the meeting of 2nd June 2005 so call into question her reliability, taken in conjunction with the other evidence, as to affect the safety of the conviction? It will become apparent that we do not think that it does. Newcastle and a hand gun 91. On 10th June 2006 Vervoort contacted her police handlers. She was in Newcastle. By then the trial had begun. She claimed to have been kidnapped. That allegation was disclosed to the defence at the trial. Detective Constable Williams recorded her as saying that when taken from the safe-house at which she had been staying, "no weapons had been brandished". Later it is said she said: "she again confirmed that her captors were not in possession of weapons". 92. On 12th June 2006 she was asked about the two men and their descriptions and actions. She was asked why she was scared of them, why they were such a threat, why she could not leave Newcastle. She never mentioned a gun or any weapons. She made a witness statement of some 12 pages in which she described why she had been obliged to stay in Newcastle. She gave descriptions of the two men. 93. On 25th July 2006, some five days after the murder convictions, Vervoort said that one of the two men who were attempting to keep her in Newcastle had been armed with a hand gun. That was subsequently written up in a witness statement of 10th August 2006. She said that her sister Rachel Nally had introduced her to the two men as friends of Conrad Jones. She described the "big guy" having a "small black handled hand gun sticking out of the waistband of the top of his jeans". That was the first time a hand gun had been mentioned. 94. Vervoort was cross-examined about this at the third Jones trial. Mr Bennathan suggests she gave a confused answer, suggesting that Detective Constable Williams had misunderstood what she was saying. No-one, submits Mr Bennathan, could be confident in those circumstances that one of the men in Newcastle had had a gun. If she had made that up, he submits, she was capable of making up a conversation implicating the appellant Dunn in the shooting in this case. Vervoort's description about the Newcastle men 95. In her accounts to the police, Vervoort spoke of two cockney men in Newcastle. On 12th June 2006 she described both of them. She did not suggest she had seen either before. She was not asked. In a further interview of that date she was. She claimed she had seen the slighter man in Coventry before. She repeated that in a further interview of 12th June and in a witness statement of the same date in these terms: "I think I have seen one of these men before in Coventry". 96. On 25th July 2006, shortly after the conviction, Vervoort told the police that "John" had been in Jones' company in Nottingham on 2nd June 2005, but she had never seen the slighter man before. 97. That change of account, submits Mr Bennathan, is manifestly implausible. When combined with the telephone material, it shows that her account of the entire meeting of 2nd June 2005 is deeply suspect. Our overall view 98. By section 23 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": see section 23(1) (c). In considering whether to receive that evidence we are obliged to have regard, in particular, to whether it appears that the evidence may afford any ground for allowing the appeal. If the fresh evidence may call into question the credibility of Vervoort so as to render the conviction of the appellant Dunn unsafe, then we are obliged to admit the evidence. It is not a question of this court replacing the jury's views with its own, as the respondent in its skeleton argument submits. 99. In considering whether the evidence now relied upon does call into question the safety of the conviction, it is necessary to put Vervoort's evidence fully into context. While it was plainly very important, it was not the only evidence capable of implicating the appellant. It stood with other significant evidence which, the jury could infer, supported it. 100. First, there was Murray's evidence. The jury was entitled to conclude from it that Dunn was present when the deceased was earlier threatened at Liam Dooley's, or knew the detail of it. Those threats, it was entitled to conclude, included a reference to guns. He knew that the deceased had not then been attacked. What Murray said did not depend upon Vervoort. It fitted into the sequence of events as described by Vervoort however. 101. Second, there was the evidence that the deceased was very frightened because of the threats. We have referred already to Sealey's evidence. Her evidence was consistent with Murray's in that regard. 102. Third, the telephone traffic provided, as it seems to us, powerful evidence capable of implicating all these defendants. Dunn, as we have set out, participated in that telephone traffic at times which, the jury could infer, were significant. It was too significant that there was telephone contact between Dunn and Liam Dooley. There is clear evidence of Liam Dooley's participation in the murder. 103. In short, the telephone evidence is entirely consistent with Vervoort's evidence. 104. Fourth, in interview the appellant was not forthcoming. When he did respond, what he said was not true. 105. The jury were warned by the judge to approach Vervoort's evidence with care. The judge accurately set it out in context. It may be, and it is not entirely clear from the transcript, that he indicated that they should not make their final decision about Vervoort's credibility until they considered the other evidence about Dunn and Higgins. We put that to one side. What he undoubtedly told them was: "At the end of the day ... it is for to you decide how much weight you put on the evidence of Maria Vervoort and I know you will consider it very carefully both in its own right and from the assistance you will get from the other evidence which forms part of a broader picture." 106. We have already to some extent commented upon the recent material. It seems to us important to make a number of further general points about it, however. 107. Vervoort was cross-examined some three times in the course of the Jones trial in very great detail. It would be surprising if there were not inconsistencies in the most truthful witness' testimony in the circumstances that faced Vervoort in those trials. It is not suggested that she ever changed her broad account insofar as involving the appellant in this shooting in the broad way that she describes. She has, in other words, generally, in our view, been consistent. 108. While we accept as, the directions in the third Jones case made clear, that a conviction in that trial does not inevitably lead to the conclusion that that jury accepted everything said by Vervoort, it seems to us clear that it must have accepted, at the minimum, that she was telling the truth when she said that Jones, in at least one of the particulars set out in the indictment, sought to prevent her giving incriminating evidence in the murder trial. It plainly did not conclude, in spite of the unrelenting and detailed cross-examination highlighting what were said to be significant inconsistencies, that she was a witness whose word could not be relied upon. 109. The murder trial took place nearer the event in question. By the time of the final Jones trial some two and a half years had elapsed since the events in question. It would be surprising if Vervoort could remember everything by then or not make mistakes. She was interviewed at considerable length much nearer the events, as we have already observed, in September 2005. 110. Mr Bennathan rightly reminds us of what was said by Lord Bingham in Pendleton [2002] 1 WLR 72 , where at paragraph 19 he said: "It will usually be wise for the Court of Appeal in a case of any difficulty, to test their own provisional view by asking whether the evidence if given at trial, might reasonably have affected the decision of the jury to convict. If it might, the conviction must be thought to be unsafe." 111. The emphasis was put in a slightly different way in the more recent Privy Council decision of Dial [2005] 1 WLR 1660 , where Lord Brown said: "Wherever fresh evidence establishes that a material prosecution witness told a lie, the question arising for the appeal court's determination is whether that realistically places the appellant's guilt in reasonable doubt. That necessarily must depend upon all the evidence in the case. However barefaced the lie and however central to the prosecution case the witness who told it, the Court of Appeal is bound in law to address that question. Even in the case of ... murder it cannot be right to allow an appeal, without more, simply on the basis that the State's main witness has been shown to have told an outright lie. The court is not in such circumstances exonerated from undertaking its analytical task. And if it remains sure of the appellant's guilt and upholds the conviction, the court is not thereby depriving the appellant of due process." 112. We have concluded, having had regard to the whole of the evidence and paid very careful heed to Mr Bennathan's well-argued submissions, that there is nothing which leads us to conclude that the conviction in the case of this appellant was in any way unsafe. We remain sure of his guilt and accordingly we uphold the conviction.

2009_06_23-1982.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1371/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1371

e7819ddca5d729f1296525c707d6be9394a0d24f5cc54f0c274be1c93301b4b1

[2004] EWCA Crim 2535

EWCA_Crim_2535

crown_court

No: 200307123/A2 Neutral Citation Number: [2004] EWCA Crim 2535 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 7 th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE RICHARDS MR JUSTICE BEAN - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 98 OF 2003 - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Str

No: 200307123/A2 Neutral Citation Number: [2004] EWCA Crim 2535 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 7 th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE RICHARDS MR JUSTICE BEAN - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 98 OF 2003 - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL MISS C BRISCOE appeared on behalf of the OFFENDER - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988 , to refer a sentence said to be unduly lenient. We grant leave. 2. The offender is 42 years of age, having been born in May 1962. He pleaded not guilty at a plea and directions hearing, on 28th March 2003, to an offence of indecently assaulting a 9 year old boy. The case was adjourned for trial. 3. On 8th September 2003, after a six day trial, he was convicted. Sentence was adjourned for a report to be prepared. On 25th November 2003 Mr Recorder Grant, at Leicester Crown Court, first sentenced the offender to an extended sentence of 4 years' imprisonment, under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 , the custodial term of which was 12 months and the extension period 3 years. The Recorder also made an order under section 28 of the same Act disqualifying the offender from working with children and he informed the defendant of his obligation to notify his details to the police upon release, pursuant to Part I of the Sex Offenders Act 1997 . However, the Recorder had second thoughts. Later the same day, in exercise of his powers under the slip rule, the court reconvened and, on this occasion, the Recorder ordered that the offender be returned to custody, under section 116(2) of the 2000 Act , to serve 2 years of the outstanding balance (which was approximately 2 years and 9 months) of a 6 year extended sentence, which had been imposed in the Leicester Crown Court in October 2000. He directed that that 2 year period be served before the 12 month custodial part of the 4 year extended sentence which he had imposed. 4. The facts were that, on 21st April 2002 a boy, who at the time was 9 years and 9 months of age, and who lived with the other members of his family in Leicester, went with his father and two other 14 year old boys to help his father in his landscaping business. At about 10.15 they went to an area of wasteland on an industrial estate which had recently been leased by the boy's father. They began to work clearing the land. At about 4 o'clock in the afternoon the father left the boys for about half-an-hour and, during that period, the victim of the attack as he became, left the other two boys and went to sit on the roof of a small breeze block hut, dangling his legs over the edge. The offender appeared. He engaged the boy in conversation. He asked him to come down, which he did. The boy shouted for one of his friends, but the offender said: "No no, it's all right, come closer, I can't hear." Without any warning he seized the boy's arm and held the boy's body against him. He told the boy that he wanted to feel him. He seized and turned towards him the boy's head and kissed him on the lips. He put his hand down the boy's trousers, pulled up his T-shirt and took hold of the boy's genitals, rubbing them with his hand. The boy, who was in shock, did not say or do anything. The offender ran off. 5. The other two boys, the friends of the victim, went to look for him. They found him crying and upset. He was also concerned because his father's keys had fallen to the ground when he had jumped off the wall. Soon afterwards the boy's father returned. He was not able to find the offender when he was told what had happened but subsequently, by virtue of closed circuit television, there were pictures of nearby business premises from which the police were able to identify the offender. In consequence, he was arrested and later interviewed on 24th September. He made no comment. 6. There was a statement, made on 9th October by the boy's mother, describing the effect of the offence on her son. For the first few months those effects were profound: he was tearful and had nightmares; he was reluctant to leave the house; later he had temper tantrums and when disciplined he would cry and shout: "Why did it happen to me?" Subsequently he improved so that, by the time the statement was made, he was no longer tearful and violent. But there was an apparently permanent effect at that time: he was no longer happy to play away from home; he was distrustful of others, particularly strangers, and he thought the offence had made him feel dirty. 7. On behalf of the Attorney-General Mr Heywood draws attention to what he submits are a number of aggravating features in this case. First, the victim was young. Secondly, there was a degree of physical compulsion used, albeit not exceeding that necessary to achieve the indecent purpose. Thirdly, there has been a significant effect on the victim (the long-term effects upon whom cannot yet be known). Fourthly, there was an apparent absence of remorse, in that a trial was necessary. Fifthly, the offence was committed while the offender was on licence and before the expiry of the 6 year extended term of imprisonment imposed on him in circumstances to which, in a moment, we shall come. 8. Mr Heywood draws attention to the mitigation to be found in the comparatively short duration of the attack. 9. The offender has appeared on three previous occasions before the courts and has been dealt with by way of probation, community service and a sentence of imprisonment. The last of those sentences was imposed at the Leicester Crown Court on 6th October 2001 and was, as we have indicated, an extended sentence of 6 years, the custodial term of which was 3 years and the extension period 3 years. That was imposed for an offence of indecent assault, committed on 5th December 1999 and involving a 13 year old girl who looked like a boy, by reason of the way in which she dressed and had her hair cut. She was approached in broad daylight, having been followed by the offender on the bus from which she had alighted. She was seized by the offender, saying he only wanted to touch her. He put his hands down her shorts and digitally penetrated her vagina, causing pain. He eventually released her and she ran away. The expiry date of the sentence was 3rd May 2006 but, having regard to the term served by the offender after he had been arrested for the offence, the subject of the present Reference, the maximum period which the learned Recorder could have ordered the offender to serve in relation to that 6 year sentence would have been the period of 2 years and 9 months. As we have indicated, he made an order in relation to a period of 2 years. 10. There was before the Recorder a report from a probation officer assessing the risk of physical and emotional harm to the public, especially young people, from the offender, as high. 11. On behalf of the Attorney-General Mr Heywood draws attention to Attorney-General's References Nos 37, 38 etc [2004] 1 Cr App R(S) 499. In the course of giving the judgment in that case Kay LJ drew attention to the four dimensions which have to be considered when dealing with sentence in a case of this kind: first, the degree of harm to the victim; secondly, the level of culpability of the offender; thirdly, the level of risk posed by the offender, and fourthly, the need to deter others. Mr Heywood also drew attention to the considerations relevant to the imposition of an extended sentence discussed in the judgment of the Court in R v Nelson [2002] 1 Cr App R(S) 565. 12. The way in which Mr Heywood put the matter overall was that it had been anticipated by the prosecution that there might be an appeal against sentence by the offender, in the light of the Recorder's change of mind: in consequence, to some extent this should be regarded as what he described as a "defensive Reference" by the Attorney-General. The principal thrust of Mr Heywood's submission was that a term of 12 months in custody was unduly lenient in relation to the gravity of this conduct, the effect upon the victim and the risk posed by the victim. 13. On behalf of the offender Miss Briscoe submits that 12 months was an appropriate period, bearing in mind that, as the learned Recorder pointed out when he passed sentence, the duration of this attack was extremely short. There was no physical violence involved and, albeit that the defendant pleaded not guilty, he did express concern for the victim of this attack. In consequence, she submits that this Court should not interfere with the sentence imposed by the learned Recorder. 14. In our judgment, a 12 month period of custody was unduly lenient, having regard to the features of this offence which we have identified. However, bearing in mind that it would, if this Court decided to interfere with the sentence, be necessary to impose a custodial term less than that which would otherwise have been appropriate in the court below and bearing in mind that we do not think it desirable that the Attorney-General should launch defensive References, we do not think that this is a case in which this Court should interfere. We make clear, as we hope we have, that we do not regard the 12 month custodial term which was imposed as being other than unduly lenient. But, for the reasons we have given, we do not interfere with it.

2004_10_07-325.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2535/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2535

a7981fd866d666022acd4333dc03fb7f5e9b0a1fa246f17c1963b99b3e43828c

[2010] EWCA Crim 225

EWCA_Crim_225

crown_court

Case No: 2010/00294 A6 Neutral Citation Number: [2010] EWCA Crim 225 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH HHJ HARROW S20090229 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/02/2010 Before: LORD JUSTICE HOOPER MR JUSTICE OPENSHAW and HHJ COOKE QC, THE RECORDER OF CARDIFF (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: Daniel Mark Hemsley Appellant

Case No: 2010/00294 A6 Neutral Citation Number: [2010] EWCA Crim 225 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH HHJ HARROW S20090229 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/02/2010 Before: LORD JUSTICE HOOPER MR JUSTICE OPENSHAW and HHJ COOKE QC, THE RECORDER OF CARDIFF (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: Daniel Mark Hemsley Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Anne Brown for the Appellant Hearing date: 3 February 2010 - - - - - - - - - - - - - - - - - - - - - Judgment HIS HONOUR JUDGE COOKE QC: 1. On the 11 th September, 2009 at the Bournemouth Crown Court this Applicant, having earlier pleaded guilty and been committed for sentence was sentenced by HHJ Harrow to 6 months imprisonment, concurrent on each of 23 counts of making an indecent photograph or pseudo-photograph of a child. In relation to that sentence of imprisonment there is no attempt to appeal. It is noteworthy that of the 6,592 images discovered on the Applicant’s computer, 6,565 were at level 1, 20 at level 2, 2 at level 3, 5 at level 4 and none at level 5. There were also 71 moving images, 24 at level 1, 18 at level 2 and significantly 29 at level 4. The Applicant was of hitherto clean character and is now aged 27. No material tending to show that the applicant was progressing towards offending directly against children was discovered. 2. The Applicant was made subject to a Sexual Offences Prevention Order (“S.O.P.O.”) for an indefinite period and it is that order which is now sought to be challenged by Miss Brown for whose assistance we are very grateful. No doubt because there was no material tending to show that the Applicant was progressing towards offending directly against children there was no application for and no S.O.P.O. prohibiting the Applicant from being in the company, unsupervised of the children of friends or family. The terms of the order which was granted was as follows: “a. Not to own or use any computer, electronic, magnetic or optical device which has the capability of storing, receiving or transmitting data without permitting any police constable to enter the premises upon which they are kept in order that they can examine and if necessary remove any such device for the purpose of carrying out such an examination. b. Not to own or possess any image of a naked child, under the age of 18, whether printed, digitally or electronically stored. This includes any image of a naked child under the age of 18 that has been published in any book or film that has been on general release within the UK. For the purpose of this prohibition naked child means any female under the age of 18 years who has their nipples, genitals or buttocks exposed or any male under the age of 18 years who has their genitals or buttocks exposed. c. Not to work either paid, unpaid or voluntary where he may have access, directly or indirectly to any child under the age of 16. d. Not to have any involvement with any club, team group or organisation that is likely to bring him into contact with children under 16.” 3. Section 104 of the Sexual Offences Act, 2003 confers a power to make a S.O.P.O. if the Court is satisfied that: “it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.” ( Section 107(2) of the Sexual Offences Act, 2003) 4. Key words or phrases in that statutory provision, often overlooked are “necessary”, “for the purpose of protecting” and “serious harm”. We also consider that it is essential, bearing in mind that a breach of a S.O.P.O. is a criminal offence carrying a maximum sentence of 5 years imprisonment by virtue of Section 113(2) of the Sexual Offences Act, 2003 , that such orders are clear on their face, capable of being complied with by the subject thereof without unreasonable difficulty and/or the assistance of a third party and free of the real risk of unintentional breach. Such orders need to be carefully drafted and bearing in mind that, although not the case in this instance, they are often made against those of limited education, simplicity is a virtue. Against that background we find much to criticise in this S.O.P.O. 5. The first prohibition cannot be described as necessary in the relevant context and it is potentially incapable of compliance without the assistance of a third party, e.g. the occupier of the premises upon which the device is used and/or the owner of that device. This prohibition is further an impermissible attempt to confer extensive powers of search and seizure upon the police, pursuant to a statutory provision which only enables an order preventing something from being done to be made. S.O.P.O s should not create a situation in which police powers of search and seizure are extended with none of the procedural safeguards which usually and importantly regulate the exercise of such powers. Further, given this Applicant’s academic and employment background the effect of this prohibition would be seriously to compromise his employability. 6. The second prohibition also cannot be described as necessary in the relevant context. It is clearly capable of unintentional breach because it is impossible in advance to know whether, for example, a film on general release might include an image of the buttocks of a naked baby. It would appear to criminalise the possession of mainstream books, DVD’s and other forms of media dealing with art (because there might be a depiction of the near naked child therein) archaeology (because there might be a depiction of a naked cupid), architecture (for similar reasons) and so on. Such a wide prohibition can have no legitimate object within the contemplation of the statute. 7. The third prohibition is likewise unnecessarily wide and unjustifiable in terms of the statute. Since it extends to contact in the presence of others and also to indirect contact it would, for example, prevent the Applicant from working in any shop or sending a Christmas card to a family member under 16. Such restrictions cannot be “ necessary……for the purpose of protecting the public……from serious sexual harm …..” 8. The fourth prohibition falls into the same category and is liable to similar criticism. Since it also extends to contact in the presence of others and applies to any involvement it would arguably prevent him from attending a Church or a football match. Again such restrictions cannot be “ necessary……for the purpose of protecting the public……from serious sexual harm ….” 9. Both the third and fourth prohibitions seek to address potential concerns which are better left to be dealt with under the Safeguarding Vulnerable Groups Act, 2006 the detailed provisions of which are better suited to manage risk in a case of this type than a S.O.P.O. 10. As this Court observed in R. v. Terrell [2008] 2 Cr. App. R. (S.) 49, at page 301, supporting and therefore tending to perpetuate a market or distribution network for indecent images may encourage others to commission, take or create images which may involve the causing of serious sexual harm to children. In a case of this type therefore the making of a S.O.P.O. may be necessary so as to protect against that risk and in the instant case as much is conceded. There was however no evidence below or before us enabling the conclusion to be reached that an order as wide as that which was made was necessary. Indeed to a large extent the provisions of the order which was made have no relation to the only identifiable risk. 11. We accordingly quash the existing S.O.P.O. and substitute one in the following terms: 1. Not to use the internet for any purpose other than seeking employment, study, work, lawful recreation or the purchase of goods or services. 2. Not to own or use, save at his place of employment or at a supervised facility open to the public, any computer with access to the internet which does not have a software programme designed to prevent access to child pornography installed and in operation. 12. Bearing in mind the fact that this Applicant has only been convicted on one occasion, has indicated a wish to co-operate with assistance intended to reduce the risk of re-offending and has the benefit of supportive parents we consider that the appropriate period for a S.O.P.O. was 7 years from conviction; the same period as that for which the notification provisions will operate. In so doing we adopt the approach previously taken in this Court in R.v.Hammond [2008] EWCA Crim.1358 in which the view was expressed that it will generally be appropriate for a S.O.P.O. to run for the same period as the notification requirement. The reference to a 10 year period in relation to notification at sentence was an error.

2010_02_18-2287.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/225/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/225

ec9915d065bace547bef61bcaadfb59e158720a7516d056552f556b5bd7ab3f9

[2012] EWCA Crim 2358

EWCA_Crim_2358

crown_court

Case No: 2012/2025/C4 Neutral Citation Number: [2012] EWCA Crim 2358 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRISTOL CROWN COURT Her Honour Judge Hagen T20110968 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/11/2012 Before: LORD JUSTICE MOSES MR JUSTICE NICOL and MR JUSTICE LINDBLOM - - - - - - - - - - - - - - - - - - - - - Between: T Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Melanie

Case No: 2012/2025/C4 Neutral Citation Number: [2012] EWCA Crim 2358 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRISTOL CROWN COURT Her Honour Judge Hagen T20110968 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/11/2012 Before: LORD JUSTICE MOSES MR JUSTICE NICOL and MR JUSTICE LINDBLOM - - - - - - - - - - - - - - - - - - - - - Between: T Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Melanie Simpson (instructed by Elite Ltd Solicitors ) for the Appellant Mr Stephen Mooney (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 16 th October, 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moses: 1. This is an appeal which underlines the importance of compliance with the Criminal Procedure Rules and the adverse impact on a trial of a failure to comply. The problems which have occurred in this case are entirely due to the appellant’s failure to give proper advance disclosure. 2. The appellant was 15 when he was convicted, on 2 March 2012 at Bristol Crown Court, of raping a 13 year-old. Both attended the same school. For reasons that will become apparent, precise details of the offence are not material to the issues. 3. On 11 November 2010 the appellant was walking the complainant towards her home when it was alleged that he had raped her in a park nearby. He is 6’5”, she is much shorter. She says that she lay down on his jacket on his orders and was then raped. 4. The complainant told a friend what had happened immediately on returning home, and another friend the following day. But she did not report the matter until 5 January 2011 when, in a very upset state, she told a support teacher. 5. The following day, 12 November 2010, the appellant was alleged to have told the same person to whom the complainant had spoken that he had had sexual intercourse with the complainant. But although the appellant made no comment at interview his defence was that he had not had sexual intercourse with her. He said that he had only walked a short distance with her and had then left her, waiting for his girlfriend, with whom he went home. 6. The defence statement, dated 5 August 2011, set out in detail the nature of his defence, namely, he had not had sexual intercourse with the complainant and had left her after walking a short way with her at her suggestion. In particular, there was no suggestion of any motive for the complainant to lie. Thereafter, well in advance of the trial, the defence had sought to adduce evidence as to a previous complaint by the complainant in relation to a different incident, pursuant to s.41 of the Youth Justice and Criminal Evidence Act 1999 . In that application there was no reference to matters which were subsequently raised at trial. 7. After the complainant’s evidence had been given through the medium of a video interview, counsel for the defence sought the judge’s leave to introduce in cross-examination a photograph which the defendant alleged had been sent to him around about Valentine’s Day 2010. This is a photograph the court has seen. It was taken by the complainant and shows an image of herself in the mirror, dressed either in a bikini or underwear. It was described by the defendant’s counsel as “quite graphic”. It presents the appearance of being designed to allure anyone to whom it was sent. The basis upon which the defence sought to introduce the photograph was in order to prove motive. 8. The prosecution objected. No e-mails enclosing that photograph were produced. The defence said it was sent with three attachments, only one of which the defendant opened. 9. After making the application in relation to the photograph, defence counsel sought to introduce a number of Facebook messages which, so the defence alleged, had passed between the complainant and the defendant. 10. The first was 18 months before the alleged incident on 16 May 2009. It recorded that the complainant had added the defendant as a friend on Facebook. There then followed an e-mail, via the medium of “wall post”, containing a comment from the complainant dated 7 February 2010 “sweet talking?”, a further comment on 17 July 2010 “no u lanks shit: (then a smiling face)”, a further message posted on the defendant’s “wall”: “inbox me wen u get diss!”, a message dated 23 July 2010 “wht did Anton say 2 u?” and, on 3 August 2010, “Fb chats fucked up mate! chat wen u r bk on line”. None of those messages appear to have been met with any response. 11. The judge then, on a voir dire , asked the complainant whether she had sent the photograph to the defendant. She denied it. The judge then ruled that neither the photograph nor the Facebook entries could be adduced in evidence, either by way of cross-examination or otherwise. Neither the prosecution nor the judge had been given any advance notice and it appears that that lack of advance notice was the basis upon the judge ruled that the evidence should not be adduced. The judge said:- “You would have been perfectly entitled, Miss Simpson, had it been part of your defence case statement, and the prosecution had the opportunity of making enquiries to see if that was true or not but in the absence of doing that, in my view it is far too speculative. It may be part of your instructions. That does not mean to say it has to be put that I am going to rule against you so far as the photograph and the Facebook entries are concerned.” 12. We have every sympathy for the judge and the prosecution. The prosecution were sceptical, and rightly sceptical, as to the provenance of the photograph which could so easily have been obtained by means other than a direct e-mail posting to the defendant, in the absence of any evidence as to an e-mail which accompanied it. There was no explanation given as to why it was adduced so late and as to why there was no reference in the defence statement to a hostile motive or to the factual basis upon which such a motive was to be alleged. 13. This ambush by the defence led, as so often it tends to do, to error. That is part of the danger which arises from an unjustifiable breach of the rules of advance disclosure. It was incumbent upon the defence to give advance notice of the Facebook photograph and the Facebook entries so as to give the prosecution sufficient time to consider whether it wanted to obtain evidence as to the different means by which a photograph might have reached the defendant and the question whether it was credible that the Facebook entries, typical as they were of exchanges between teenagers, were so one-sided. 14. But the question remains whether the judge’s approach was correct in law. In our view, it was not. Both counsel should have reminded the judge of the relevance of s.41 of the Youth Justice and Criminal Evidence Act 1999 to questioning as to the photograph. 15. Any question in cross-examination about the photograph was, having regard to its nature, about “any sexual behaviour of the complainant” ( s.41(1) (b)). If, as he proposed, the defendant wished to give evidence that he had been sent the photograph then, without the leave of the judge, he would not be allowed to adduce that evidence ( s.41(1) (a)). 16. Since the defendant denied that he had had sexual intercourse with the complainant the issue was not an issue of consent ( s.41(3) (a)). The question for the judge was whether the photograph went to a relevant issue. In our view, it did go to a relevant issue since it was an issue falling to be proved by the defence in the trial of the accused, namely, that the complainant was interested in him. He was not interested in the complainant and the motive for her false allegation was her affront at his lack of interest. Once that relevance had been established, the judge had no discretion to refuse to allow the matter to be put to the complainant and the defendant to give evidence about it ( R v F [2005] Cr App R 13). In particular, it was not open to the judge to refuse to allow the matters to be put because they had been raised so late in the day. The fact that that had happened so late in the day went to the weight to be attached to the photograph. It would have lent force to any suggestion made by the prosecution to the photograph. It would have supported any suggestion made by the prosecution that the defendant had obtained the photograph by means other than it being sent by the complainant directly to him. 17. Similarly, it was not open to the judge to refuse to allow the Facebook entries to be put merely on the basis that there had been no advance notice of the intention to adduce them in evidence. But the judge was perfectly entitled to refuse to allow the defence to do so in the form in which they were produced. They were all one way. They made no sense without seeing the response of the defendant. In the absence of any response or any context in which they could be viewed it would have been wholly misleading and unfair to put them to the witness. The proper way of putting them to the witness was by establishing their context and the thread of which they formed part. That could only be done by putting in any response the defendant made. The e-mails from the complainant established nothing in the absence of any context. 18. We should mention that it appears that at one stage in cross-examination the complainant denied ever having asked to put the defendant on her Facebook “board”. The defence did not seek, even at that stage, to invite the judge to re-open the question of the admissibility of the Facebook entries. The complainant’s denial that she had thought to put this defendant on Facebook is just the sort of comment to which a young witness might be driven in the absence of advance notice, particularly when seeking to distance herself from one whom she alleged had raped her. 19. Moreover, the judge’s understandable wish, particularly with a young witness, not to derail the trial, led her into further error. It was entirely understandable that she might wish to establish whether the complainant admitted sending the photograph to the defendant. But the fact that the complainant denied having done so did not resolve the issue. After all, the judge had not heard from the defendant. He wanted to say that he had been sent that photograph by the complainant. That was a conflict which the jury would have to resolve. If, as we believe, the photograph and questions about it related to a relevant issue in the case, then it was not open to the judge to refuse to allow it to be adduced merely because the complainant said that she had not sent it. Once it was established that the photograph and questions about it related to a relevant issue, namely, motive for lying, then the judge should have allowed the defence to cross-examine about the photograph and adduce evidence about it. That of course would have laid the defendant open to serious questioning about why no notice had been adduced of the photograph in advance and why it was not accompanied by any e-mail. The late arrival of the photograph may well have rebounded to the defendant’s detriment. But we emphasise that none of that provided a basis for refusing to allow it to be admitted. 20. We must then consider the consequences of the error into which the prosecution and the judge fell, directly as a result of the late attempt to adduce the photograph. The appellant should not obtain any advantage from the tawdry production of the photograph. We remind ourselves of our power pursuant to s.23 of the Criminal Appeal Act 1968 . The court has power, if it thinks it necessary or expedient in the interests of justice, to order production of any document, exhibit or other thing connected with the proceeding, the production of which appears necessary for the determination of the case ( s.23(1) (a)); we have a similar power for similar reasons to order attendance of any witness and [to] receive any evidence not adduced in proceedings. 21. It is plain that the test to which we must have regard in s.23(2) (d) is satisfied. There is a reasonable explanation for the failure to adduce evidence in relation to the obtaining of the photograph and the Facebook entries. The explanation is that the judge refused to allow it. But non sequitur that the evidence may afford any ground for allowing the appeal ( s.23(2) (d)). 22. Absent any evidence as to whether, and if so how, the appellant obtained the photograph when he obtained it, and why no advance notice of it was given in his defence statement or subsequently, and as to why no application was made earlier under s.41 of the 1999 Act , it is not possible for this court to say whether the judge’s failure to allow the photograph to be adduced affords a ground for allowing the appeal. 23. Our jurisdiction is limited to seeing whether the verdict was safe. Unless there is evidence that persuades us that a jury might have accepted the possibility that the complainant sent the photograph to the defendant, the photograph can have no impact on the safety of the verdict at all. Further, absent any context for the e-mails on Facebook they have no significance whatever. 24. Normally when a judge refuses to admit relevant evidence there will be no difficulty in deciding whether it affords any ground for allowing the appeal. But in this case the very concerns which drove the judge to refuse to allow the evidence to be adduced cause us similar anxiety. It is not possible for us to say that the verdict is unsafe unless the prosecution have had the opportunity to question the defendant as to the provenance of the photograph and adduce any evidence it wishes to adduce as to how easy it might be to have obtained the photograph from another source. We particularly have in mind the explanation, eventually given by counsel for the appellant, that the reason for the late disclosure of the photograph and the Facebook entries was some defect in the hard drive of the computer used by the appellant. We did not understand the explanation. It requires further evidence and consideration. 25. For those reasons, we shall adjourn the appeal for a further hearing, at which both appellant and prosecution will have the opportunity to adduce any relevant evidence they wish. The appellant is now aware of our concerns and should, if he is able, be in a position to allay them by establishing the provenance of the photograph or explaining why it is not possible to do so. The prosecution will have the opportunity of rebutting any evidence the appellant wishes to adduce in relation to those issues. The court will also wish to be satisfied that there was a reasonable explanation for the late emergence of this evidence at trial. 26. The appellant should provide sworn statements of any evidence he wishes to adduce within 21 days of this Order. The prosecution then has 21 days to respond, after which the case is to be re-listed. We very much bear in mind the young ages of both complainant and appellant. This makes it incumbent upon everybody to see that this case can come back before us as soon as possible. For those reasons, the appeal is adjourned.

2012_11_07-3062.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/2358/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/2358

4cc4e2821e980a4e2a26f3f695de54cac5ac8e0b3dff8c55e1e9f899a8833643

[2004] EWCA Crim 1820

EWCA_Crim_1820

crown_court

No: 200401897 A3 AND 200401899 A3 Neutral Citation Number: [2004] EWCA Crim 1820 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 1 July 2004 B E F O R E: LORD JUSTICE KEENE MR JUSTICE MITTING SIR JOHN ALLIOTT - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NOS 038 and 039 of 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet

No: 200401897 A3 AND 200401899 A3 Neutral Citation Number: [2004] EWCA Crim 1820 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 1 July 2004 B E F O R E: LORD JUSTICE KEENE MR JUSTICE MITTING SIR JOHN ALLIOTT - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NOS 038 and 039 of 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MS B CHEEMA appeared on behalf of the ATTORNEY GENERAL MR D MAUNDER and MR G NELSON appeared on behalf of the OFFENDERS - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: These are applications under section 36 of the Criminal Justice Act 1998 by Her Majesty's Attorney General for leave to refer two sentences to this court because they appear to him to be unduly lenient. We grant leave and treat this as being the hearing of the references. 2. On 5 March 2004 Aaron Randall and Troy Donaghue were each sentenced at the Crown Court at Gloucester by His Honour Judge Tabor QC to three years' imprisonment for robbery. Randall was also sentenced to four months consecutive for failing to surrender to bail. Both offenders had previously pleaded guilty to the robbery charge; Donaghue on 20 November 2003 and Randall on 13 February 2004. 3. The robbery, in which both offenders and a third man were involved, took place at night time at about 1 am on 17 July 2003. The three men went to the home of the victim, a 57-year old frail man, whom they knew to have learning difficulties and to be vulnerable. He was someone who needed help in carrying out such basic activities as washing and shaving. He had been the target of local children pestering him for money, and on occasions he had complied with those requests. One of the children to whom the victim had given money was Randall's stepson, aged ten, who was apparently given £10 by the victim the day before this offence. 4. The men called at the house, the victim was woken and he opened the door. The three men confronted him and he was pushed backwards into the hallway. The men entered and the victim was restrained by Donaghue and punched in the face. At least one of the men demanded money and the victim was asked where it was. He replied that he had money in an envelope upstairs. There was approximately £100 in cash in one of the upstairs rooms. The money was the totality of the victim's savings from his benefits. Randall at least went upstairs and took the money. All three men then left. A neighbour heard the noise and the police were called. In due course the men were found hiding in a hedge. The victim suffered factures to the right cheek bone and the eye socket. 5. At interview all three men made no comment. The victim was incapable of being a witness on an identification parade and his evidence was video-taped. The victim's blood was found on clothing attributed to both offenders. Randall's finger-prints were also found on the inside of the envelope upstairs in the victim's house which had contained the money. 6. At a further interview Randall said that he had been to the victim's house previously because he wanted to know why the victim had given his stepson money. There was a suggestion in the interview that the offender was concerned lest the victim be intent on sexually abusing the boy. This suggestion was subsequently withdrawn because both offenders recognised that there was no basis for it. Both offenders were released on bail. 7. During the time in which the case was making its way to the Crown Court, Randall breached his bail. He was at large between 8 September 2003 and 3 February 2004. Both offenders subsequently pleaded guilty at their respective preliminary hearings at the Crown Court. They both claimed to have been heavily drunk at the time of the offence. 8. Randall is aged 21. He has a number of previous convictions, mainly for burglary, theft and motoring offences. He has been made the subject of supervision orders, fined and sentenced to youth custody. His longest previous sentence was nine months imposed in November 1999 for a burglary committed on bail. Donaghue is aged 39. He has a substantial criminal record with over 100 previous convictions, mostly for burglary and theft and a number of minor offences. He has received several custodial sentences, the longest being a term of three years' imprisonment passed in 1995. 9. In sentencing both offenders, the learned judge said: "You confronted a man at his own doorstep who was especially vulnerable and frail and you both knew that. You had another man with you. You used gratuitous and quite unnecessary violence between you and then went into his house and rifled through his possessions and stole his money, and then produced an excuse that it was something to do with passing £10 to a child." The judge went on to stress the pleas of guilty before passing the three year sentences of imprisonment for robbery. 10. Some of those matters mentioned by the judge are among the aggravating features to which the Attorney General now refers: the targeting of a vulnerable and frail man known to the offenders to be such; the fact that the attack took place in his own home; the use of gratuitous violence; the fact that three men were involved in a group; and the rifling through of the victim's possessions, although there is some dispute as the to accuracy of that last item. In our view it makes no difference to the outcome of the case. 11. Ms Cheema, who appears on behalf of the Attorney General, emphasises certain aggravating matters not mentioned in the court below in the passage to which I have referred. Thus, the offence was committed at night time; serious injury was caused to the victim; and an element of vigilante behaviour attached to the offence in that both these offenders accepted that at the time of the offence they attributed unsavoury motives to the victim's actions towards children. Moreover, both men had considerable previous convictions. Our attention is drawn also to the pre-sentence reports which indicate that both offenders sought to minimise their blameworthiness and revealed no sense of remorse. 12. This court has been referred on behalf of the Attorney General to a number of authorities. The earliest in time is the Attorney General's Reference Nos 32 and 33 of 1995 (Pegg and Martin) [1996] 2 Cr App R (S) 346. In that case the then Lord Chief Justice, Lord Taylor, giving the judgment of the court said at page 350: "We have had drawn to our attention a number of cases where attacks have been made on elderly victims. Counsel have sought to compare and minimise the injuries that were inflicted as against those in other cases. However, the general effect of the decisions to which we were referred is to show that where an elderly victim, living alone, is violently attacked by intruders within the home and is injured the likely sentence will be in double figures. We wish to stress that attacks on elderly people in their own homes are particularly despicable and will be regarded by the court as deserving of severe punishment. Elderly victims living alone are vulnerable, not only because of the lack of assistance but also because of their own weakness and isolation. Any attack on such a person is cowardly and can only be expected to be visited with a very severe punishment indeed." 13. The attack in that case was more serious, involving the use of a knife, and the injuries suffered were grave. Sentences of between seven and ten years were passed reflecting the element of double jeopardy. Higher sentences would have been passed at first instance. 14. The next authority relied on by the Attorney General is the Attorney General's Reference No 89 of 1999 (Farrow) [2000] 2 Cr App R (S) 382. That case involved a robbery in the home by a single offender. The victim was aged 69 and lived alone. The offender forced his way into the house, threatened the victim with a knife and demanded money. He then punched the victim to the floor, applied pressure to his neck and then pulled some cable around the neck until the victim lost consciousness. £120 and a souvenir coin were taken. There was no plea of guilty. This court took the view that the sentence for this offence at first instance should have been one of 10 years' imprisonment. That was reduced to allow for double jeopardy to a term of eight years' imprisonment. 15. Finally Ms Cheema refers us to the Attorney General's Reference 48 of 2000 (Johnson) [2001] 1 Cr App R (S) 423. In that case there was a plea of guilty to robbery. It was an offence committed by a single offender who went to a flat occupied by man of 79 who suffered from arthritis. The victim was pushed to the floor and punched in the mouth and to the nose. His pockets were searched, as was the flat, and in all £24 was taken. The offender had many previous convictions. This court said that the bracket for such offences on a plea of guilty was between four and seven years' imprisonment. No significant injury had been caused and no facial bruising was found. It seems to this court that the bracket of four to seven years on a plea, referred to in that case, must have reflected that particular factor that the court had in mind of the absence of any significant injury. Given that absence in that case, the plea of guilty and the indications of remorse, the court declined to interfere with the four-year sentence. 16. In the light of those authorities, it is submitted on behalf of the Attorney General that the sentence in this case on each offender failed to mark adequately the gravity of the offence and aggravating features present. It is said that the judge gave too much credit for the guilty plea in spite of the fact that it was entered in the face of overwhelming evidence, particularly forensic evidence, and was accompanied by little remorse. It is also contended that the learned judge should have passed a deterrent sentence which reflected the need to protect vulnerable members of society from attack in their own homes. For those reasons, the submission by the Attorney General is that the sentence of three years' imprisonment in both these cases fell outside the proper bracket of sentencing and was unduly lenient in the circumstances of this case. 17. On behalf of the appellant, Randall, Mr Maunder acknowledges that the sentence was a lenient one. But he points out that the judge attached considerable weight to the guilty pleas, which avoided this frail victim having to give evidence at a trial. Reference is also made to the fact that Randall is only 21 and that the initial impetus behind the three men going to the house may not have been to rob. Moreover, no surgical intervention or treatment was needed for the injuries, even though there were factures. It is suggested that the case is no worse than that of Johnson and that the sentence of three years' imprisonment cannot be regarded as unduly lenient. 18. On behalf of Donaghue, Mr Nelson adopts much of what was said by Mr Maunder on behalf of Randall. In particular he emphasises the point about the early guilty plea. He, too, compares this case to that of Johnson and emphasises that, in that case, the offender had previous convictions for robbery, quite unlike Donaghue. 19. We accept that the aggravating features in this case were, principally, the fact that a vulnerable and frail man was targeted; that the offence involved an invasion of his home at night time; that gratuitous violence was used; that significant injury resulted; and that a group of men were involved. We do not attach weight to the fact that surgical intervention or other treatment was not required. Two fractures of the face, in the judgment of this court, do amount to significant injury. 20. We would also emphasise that the real test in these cases is that of vulnerability. The precise age of the victim is of less relevance. It is simply a factor which, along with other factors, may contribute to the victim being a vulnerable person living alone. This court has spelt out on many occasions the gravity with which such attacks in the home on elderly or otherwise vulnerable people will be viewed. Such offences cause widespread anxiety amongst the elderly or vulnerable. We entirely accept the point made by the Attorney General that deterrent sentences in such cases are required. 21. We are in no doubt that the sentences of three years imposed in these two cases were lenient and unduly so. There was no allowance to be made here for good character. We are not impressed by the argument that there may not initially have been an intent to rob. If there was some other intent, which took the three men to the house of this frail and vulnerable man, it seems to this court itself to have been equally reprehensible, of the kind referred to by Ms Cheema in her submissions. 22. Taking into account the authorities to which we have referred, the appropriate sentence at first sentence for this robbery, allowing for the pleas of guilty, would have been in the range of 6½ to 7 years' imprisonment. That reflects the injury caused and the number of men involved, which is a relevant factor. Allowing for double jeopardy, we set aside the sentences for three years on the robbery count, and in each case we shall substitute a sentence of 5½ years' imprisonment. In the case of Randall, that will still have four months' imprisonment for failing to surrender to be added to run consecutively to it. The total, therefore, will be 5½ years' imprisonment in the case of Donaghue and 5 years 10 months in the case of Randall.

2004_07_01-274.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1820/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1820

dd2baadb0fa1468fe6a0aa3c3f42164239d55c2b54ed3448c7de85205ee2c447

[2006] EWCA Crim 1720

EWCA_Crim_1720

crown_court

No: 2005/1527/D3 Neutral Citation Number: [2006] EWCA Crim 1720 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 23 June 2006 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE LEVESON MR JUSTICE IRWIN - - - - - - - R E G I N A -v- NICHOLAS TOM ROSE - - - - - - - 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 Cour

No: 2005/1527/D3 Neutral Citation Number: [2006] EWCA Crim 1720 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 23 June 2006 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE LEVESON MR JUSTICE IRWIN - - - - - - - R E G I N A -v- NICHOLAS TOM ROSE - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR P MOTT QC AND MR J BARNES appeared on behalf of the APPELLANT MR P DUNKELS QC AND MR R CRABB appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE TUCKEY: On 17th February 2005 after a six week trial in the Crown Court at Exeter, before His Honour Judge Cottle and a jury, the appellant, Nicholas Tom Rose, was convicted of murder and sentenced to life imprisonment with a recommendation that he serve a minimum of 20 years. The jury convicted him by a majority of 11 to 1 after deliberating for about 25 hours. He appeals against conviction by leave of the single judge. Two of the judge's rulings on the admissibility of evidence are challenged, as is one aspect of his summing-up. The appellant also relies on additional evidence. 2. On Friday 27th February 2004, Charlotte Pinkney, aged 16, was at a party in Ilfracombe. She left shortly before 4.30am the following morning in a car driven by the appellant. There was another man with them but when he got out of the car the appellant drove off with Charlotte. None of her family or close friends have heard from or seen her since. On 4th March her family informed the police that she was missing and a search started. The prosecution maintained that although her body was not found the evidence led to the sure conclusion that she was dead and that the appellant had killed her. Its case was that he drove her away from the party with the intention of a sexual encounter and when this went wrong he killed her. She was dead by 6.30am. It was conceded that if she was or might have been alive after that, the appellant was not guilty. 3. The appellant's case was that he dropped Charlotte by a nearby community centre and had no knowledge of where she went or what she did after that. His own actions thereafter were the result of his belief that there were police in the area from whom he needed to escape as he was a disqualified driver. The defence maintained that there was evidence that Charlotte was alive at least until the afternoon of 2nd March. 4. The Crown called evidence that Charlotte was a popular, confident and mature girl with a wide circle of friends in Ilfracombe. Her social life involved much partying, drinking and drug taking, as was the norm amongst her friends, and she had had a number of boyfriends, including Gus O'Brien, who was in his forties and with whom she recently had a stormy relationship. Although there was concern about these aspects of her lifestyle, she was very much involved in family life. She had some close friends and loved Ilfracombe, seeming never to want to leave. She was looking forward to celebrating her 17th birthday on 6th March and her sister's birthday, which was a few days before hers, and to various other events. The evidence of her parents, friends and relatives was that it was inconceivable that if she were alive she would not have made contact with one of them. 5. On the evening of 27th February, Charlotte went out with her friends. She was wearing trousers, a black thong, a top, a jacket and brown boots and was carrying a distinctive Lonsdale handbag. After the clubs closed, she and a friend went to the party to which we have referred. The friend fell asleep and did not see Charlotte again. The appellant was at this party. She left the party with him in a red Vauxhall Cavalier which the appellant had borrowed from his friend, Helena MacKenzie. The other man in the car, Dean Copp, described how he had been left in the road after being asked to knock on the door of the house of one of their friends. As he was doing so, he said he saw Charlotte sitting on the appellant's lap in the driver's seat of the car. They were kissing. 6. He next saw the appellant at about midday when he came to Helena MacKenzie's house. He and Helena described how the appellant was covered in fine scratches and had three deeper different scratches on the side of his neck. The appellant said that he had left Dean when he had seen torch lights which he thought were the police and had driven off to the Slade reservoirs on the outskirts of Ilfracombe to hide. The car had got stuck in the mud and he had been scratched by brambles running away from the police. He had earlier told someone working at his house that he had hidden in bushes whilst two policemen with lights and dogs looked for him. 7. Later the appellant managed to retrieve the car but before he did so it had been seen by various witnesses up at the reservoir. It was stuck in a tunnel passing under a disused railway line. One man had seen the appellant holding some sort of rolled up material which he had thrown into the back of the car. Other witnesses who were out riding saw a Lonsdale bag on the verge of the track leading to the tunnel between about 11.15 and 12.15 that morning. This was the bag Charlotte had been carrying the previous evening. Another witness saw the appellant at about 12.30 kneeling on the back seat of the car, apparently brushing it. 8. The following day (the Sunday) the appellant and his girlfriend, Kimberley Kelly, took the car to a car wash. He then hoovered it out at Helena's house with her hoover. After this they went on a drive to a nearby area of coastal countryside known as Lee Bay. The defence said that Kimberley Kelly's evidence about what happened on this drive was irrelevant, but the judge ruled that it was admissible. That is the first of the judge's admissibility rulings which is challenged on this appeal. 9. Kimberley's evidence was that they first stopped in a car park near a hotel where the appellant climbed a bank. When she asked him what he was doing he said "Nothing". They then went up a hill where he stopped twice, got out of the car and looked around. He told her something about a stash of drugs but she said he was looking, not searching. 10. The next day the appellant again borrowed Helena's car. He was away for about five hours in the evening, saying he was going to collect some tools. When he returned at about 10.30pm he was smartly dressed in a change of clothes and smelt of aftershave, although he seemed rather stressed and said he had lost his phone. 11. Earlier that day the Crown alleged that he was seen by Mrs Geraldine Woodward walking from Ilfracombe towards the reservoirs not far from the track to which we have referred. Mrs Woodward's evidence was that the appellant was carrying a large carrier bag which looked heavy. The defence objected to the admissibility of her evidence for reasons we will explain when we deal with this, the second challenge to the judge's admissibility rulings. 12. The appellant was arrested on 7th March. He was examined by a police surgeon and photographs of the injuries found were before the jury. Two of these showed bruises on his upper arms which were consistent with grip marks and could have been inflicted in the early hours of 28th February. Injuries shown in two other photographs could have been caused by fingernail scratches. All the other injuries were consistent with moving through bushes or were more recent than 28th February. 13. The Crown called evidence that no police officers were in the relevant areas at the relevant times on 28th February with or without torches, dogs or vehicles. 14. There was important uncontradicted scientific evidence. Charlotte's DNA profile was obtained and compared to bloodstains which were found in various places. It matched a contact bloodstain on the tongue of the appellant's right trainer, although the appellant said he had wiped his trainers clean twice. 15. Charlotte's DNA also matched an area of contact bloodstaining which could have been a smear on the roof lining of the Vauxhall Cavalier, two small areas of light watery bloodstaining on the carpet in the boot of that car and contact bloodstaining in several areas on some jump leads which were in the boot. A child's red hoodie had been found in the car. It had contact bloodstains on its front and back. A DNA profile matching that of the appellant was obtained from one section and a mixed profile made up of the appellant's and Charlotte's DNA was obtained from another. 16. A piece of black elasticated material found under the front passenger seat was of the type and construction used in the manufacture of knickers, including thong-type knickers. A sample pair of trousers identical to those worn by Charlotte on the evening in question was exhibited. A button with some thread attached was recovered from the hoover taken from Helena MacKenzie's house which she said she had never used on the car. It was similar in size and appearance to a button on the inside of the sample pair of trousers. The thread in the button from the hoover bag matched that from the button in the exhibited trousers. 17. On about 14th March a brown boot was seen on some waste ground about 85 paces from the appellant's home. It was subsequently recovered and found to be identical to those worn by Charlotte on the night in question. Tests on some hairs in the boot revealed moderate support for the conclusion that it was hers, but this was not disputed at trial. 18. The appellant gave evidence. He had a number of previous convictions but had always pleaded guilty. He had never had a full driving licence and was disqualified for a breathalyser offence in January 2004. He would have been known, he said, to every police officer in Ilfracombe. He drove Helena MacKenzie's red Vauxhall, usually to run errands for her. He knew Charlotte as he knew many people in Ilfracombe but did not want a relationship with her. He went to the party and as he was leaving Dean Copp, and then Charlotte, asked to come with him. When Dean left the car, Charlotte asked if she could have a driving lesson and moved her right leg across the gear stick towards him. He said "No". She did not sit on his lap and there had been no kissing. As he turned the car around he became aware of lights coming through the bushes and along the pathway hitting the wall. He thought it was the police and as he was a disqualified driver and had been drinking he decided to get away from the scene as fast as he could. He asked Charlotte to get out at the community centre. She did not say what she was going to do but he thought she might go back to the party. He was going to drive a round about way back to his own house but the car started to judder as if it was running out of petrol. He had to decide where to put it as it had no tax or MOT and decided to go to the reservoir. He drove into the tunnel, got out and clambered up the bank. He went along the cycle track on the site of the disused railway and then climbed onto a hut to get away from dogs and to have a vantage point. Subsequently he spent one to two hours trying to get the car out of where it was stuck but was unsuccessful. He walked home and then went to Helena's house where he told Dean that he had seen police or lights and wanted to get away. After about 10 minutes at Helena's house he went back home and changed. He then took a shovel wrapped in a carrier bag and walked back to the tunnel. It was the shovel in the bag which the witness had seen, not rolled up material. He eventually managed to reverse the car out and put the shovel into the boot of the car by kneeling on the back seat. That is what the witness must have seen him doing when he was on the back seat. 19. On the following day he took the car to get it washed. He went for a drive with Kimberley because she wanted to talk. At Lee he climbed the bank to look for some new tennis courts that someone had mentioned. The next time he stopped to look for a drugs stash about which he had overheard talk and the last time was to have a pee. 20. On the Monday he was with Kimberley. It was not he whom Mrs Woodward had seen walking towards the reservoir. She had not seen him for four or five years. She had thought that the man was wearing a cream baseball cap and he did not own such a cap. Baseball caps were recovered from his home by the police but not a cream one. At the time she said she saw him he was with Kimberley and later that day he had made an unsuccessful effort to find his tools. He had gone home, had some food, relaxed, showered and changed and then gone to Helena's at 10.30 and asked her if she would like to go to Swindon for a night out, but she was not interested. He had played football the next Sunday and when he received the injuries which were apparent when he was examined following his arrest. 21. The appellant said he did not know how blood matching Charlotte's DNA came to be where it was found; it had nothing to do with him. He agreed that the area of roof lining in the photograph was above where he had been seen kneeling on the back seat. He knew nothing about the Lonsdale bag. 22. It was suggested on the appellant's behalf that Gus O'Brien, with whom Charlotte had recently had a row and who was a local drug dealer, was in some way involved in her death or disappearance. 23. But the most important part of the appellant's defence was the evidence which suggested that Charlotte was alive after 6.30am on Saturday 28th February. A 13-year-old boy, Lewis Russell, who knew Charlotte, said he had passed her as she was walking into Ilfracombe at about 12.30 pm on 21st or 28th February. He knew it was a Saturday but he could not be sure which, but he did remember that he had been wearing tracksuit bottoms which he had been given for his birthday on the 26th. 24. Mr Holford is the landlord of the Victoria Inn in Ilfracombe. He said that on the 28th Charlotte came into his pub with Gus O'Brien and three others between 12.30pm and 1.30pm and stayed there drinking for about two to two-and-a-half hours. Mr Townsend, a regular in this pub, said that this group had come in at about 3pm. He had discussed the date with the landlord and it was the 28th because that was his daughter's birthday: he had to collect her in his car later that day and had, for that reason and unusually for him, only been drinking orange juice that afternoon. 25. Mr Holford and Mr Townsend said that they had only seen this group in the Victoria on one occasion. That, said the Crown, was the previous Saturday, the 21st. What these two witnesses were describing had happened a week earlier and so they were mistaken about the date. The Crown called evidence with a view to establishing this contention. Three of his group and Gus himself gave evidence that they, together with Charlotte, had gone to the Victoria on the 21st after watching Arsenal play Chelsea on the television in another nearby pub. This match undoubtedly took place on 21st February, kicking off at 12.30pm. The landlord of the other pub confirmed the presence of the group in his pub at this time and on that date and said that they had left at about 2.45pm. Gus and the three members of his group said that they were not with Charlotte in the Victoria the following Saturday. They gave some further evidence about what had happened on the 21st. They had all been together to an all-night party, the effects of which had made them much the worse for wear and had then gone together to the Victoria. In the Victoria, Charlotte had been sitting on Gus's knee. She was crying and upset and walked out from time to time. 26. Two further pieces of evidence were relied upon by the defence to cast doubt on the prosecution case that Charlotte was dead by first light on the Saturday. First, Martin Watts who said that as he was driving towards the centre of Ilfracombe at about 8pm on the 28th he saw Gus, whom he knew, walking along the pavement with a female whom he did not know but from a photograph he was shown he was 99 per cent sure it was Charlotte. Mr Watts was sure of the date because it was on a day when he had to complete some building work. Gus accepted that he was in Ilfracombe that day but denied that he was with Charlotte. 27. Finally, Charlene Bettis, who knew Charlotte from school, said that at about 4.20pm on 2nd March (that is to say the Tuesday) she saw Charlotte sitting in the passenger seat of a car opposite where she worked. She said Dean Phillips was in the driver's seat. Although his evidence was at times vague in its detail, he consistently maintained that he had not seen Charlotte since the party. 28. So that is a summary of the evidence which was before the jury. It is convenient first to deal with the challenges to the judge's rulings on admissibility to which we have referred. First, the evidence about the trip to Lee Bay. The defence objected to this evidence on the grounds that it was irrelevant. There was no other evidence connecting relevant events to this area, despite the fact that it had been comprehensively searched by the police. The evidence was not probative and merely encouraged the jury to speculate. It was also prejudicial because it involved an admission that the appellant was trying to steal someone else's drugs. 29. The Crown accepted that they could not say exactly what the appellant was up to, but this evidence, they said, showed an interest in isolated locations and could be linked to the killing and concealment of Charlotte's body 36 hours earlier or the disposal of incriminating evidence. 30. In his ruling the judge described Kimberley Kelly's account of the appellant's behaviour as very unusual and said: "I am quite satisfied that it is evidence which the jury are entitled to consider. It is both relevant and probative, and I do not accept the submission that it is simply speculative." 31. Mr Mott submits that the judge should have accepted his submissions and excluded this evidence either because it was irrelevant or under section 78. 32. We do not agree. We think the jury were entitled to consider all the appellant's movements in the hours and days following the time at which the Crown alleged Charlotte had been killed. As the judge said, the appellant's behaviour on the trip to Lee Bay was unusual. What was he looking for? Kimberley's evidence did not suggest that it was drugs. Moreover this trip, and other drives which the appellant took, cast doubt on his explanation for driving to the reservoirs after leaving the party. If he was so frightened of being stopped by the police then, why was he driving so openly on the following days? 33. The grounds of appeal contend that in fact the Lee Bay area was a pretty unpromising place for disposing of bodies or incriminating evidence. But this was a matter for the jury, to whom this point was no doubt made, who were taken on a view of the area and the other places which featured in the evidence. 34. We turn to the evidence of Mrs Woodward that she saw the appellant walking towards the reservoirs carrying a large bag at about 2.30pm on the Monday. She knew the appellant because of his relationship with her neighbour, Tanisan Nicklin, although she had not seen him for four or five years. She had given the police the name "Rose" but during the video identification procedure she was unable to make a positive identification. She said: "I think it was No 6." No 6 was the appellant. 35. The defence again submitted that this evidence was not relevant and simply encouraged the jury to speculate in the absence of any evidence to support the fact that the appellant had anything to dispose of or conceal at the time Mrs Woodward says she saw him. Furthermore, the evidence of identification was of poor quality. It was not supported by any other evidence and was inconsistent with Kimberley's evidence that the appellant was with her at this time, as he agreed. 36. The prosecution accepted that this was a case of qualified identification but relied on the case of George [2002] EWCA Crim. 1923 to support their contention that it was admissible. In that case the court said that one of the reasons why such evidence could be admitted was if it supported or at least was consistent with other evidence which indicated that the defendant committed the crime with which he was charged, subject to any section 78 considerations (see paragraphs 35 and 36). 37. In his ruling the judge said: "I have applied the appropriate test and have decided that it is more relevant and probative than prejudicial. There is here a recognition by the witness of a person who she recalled being involved in a relationship with a girl called Tanisan Nicklin. When interviewed, the defendant admitted that he had had such a relationship, and that there was a child from that relationship, which is what the witness also recalled. At the video identification procedure carried out subsequently she thought that the person at video clip No 6 was the person that she had seen on the track. That person was in fact the defendant. I am satisfied that this evidence satisfies the test for admissibility." 38. Mr Mott submits that the judge should have excluded this evidence and repeats the submissions he made before the judge. 39. We do not accept these submissions. The evidence was plainly relevant because it showed the appellant returning to the area which he had driven the Vauxhall Cavalier after the party and where he had been seen later that day. This evidence did support the Crown's case and so was admissible on the ground identified in George , although we think it would probably have been admissible on ordinary principles without reference to that case. The fact that Kimberley's evidence was in the event inconsistent with Mrs Woodward's evidence was not fatal to its admissibility. It is well established that the Crown are not obliged to rely on every part of the evidence of witnesses whom they call. Mr Mott rightly accepted that in his summing-up the judge gave a proper Turnbull direction when reminding the jury of Mrs Woodward's evidence. 40. We add that in relation to both grounds of appeal that in so far as the judge was exercising a discretion under section 78 there is no legal basis for challenging the decisions which he made. 41. The third ground of appeal relates to comments made by the judge in the first part of his summing-up. In the course of his directions on the law, the judge put the issue for the jury fairly and squarely as follows: "The prosecution do not, and never have, resiled from the case which they have set out to prove - namely that the defendant drove Charlotte away ... intent upon a sexual encounter; it went wrong, and he killed her; and that she was dead by about 6.30 or so on the morning of 28th February. It therefore follows that if you think that Charlotte was, or may have been, alive and well at any time after that, that is an end of this case, and you would find the defendant not guilty." After giving the Turnbull direction in relation to Mrs Woodward's evidence, the judge turned to the evidence called by the defendant that Charlotte was alive after first light on the 28th. He said: "The evidence of Charlene Bettis and Martin Watts, about which I of course will remind you, is challenged by the Crown on the basis that two perfectly honest witnesses have made a mistake. The evidence of the two witnesses from the Victoria Inn is challenged on a different basis; the prosecution accept that there was an occasion when a particular combination of people, including Charlotte Pinkney, was in the Victoria, but it was 21st February and not the 28th. Lewis Morgan Russell, the 14-year-old - his evidence is also challenged on the basis that he is a week out, and certainly at times he seemed unsure as to whether the 21st or the 28th was the day that he passed Charlotte... The difference in approach to the defence evidence reflects the fact that the burden of proving the case rests upon the Crown, and the standard of proof they must achieve is to make you sure. The defence do not have to prove anything. Accordingly, your approach to the defence evidence of identification is this. If you consider that any one of the suggested sightings of Charlotte Pinkney after the early morning of 28th February may be correct, then that is an end to this case. In that context you will probably wish to consider whether or not, if Charlotte was alive and well - at least until the late afternoon of 2nd March - countless people would have been able to testify to that fact." 42. First, Mr Mott complains about what he describes as the judge's "comment" about Lewis Russell's evidence. This evidence had been at the forefront of the defence case and Mr Mott submits that what the judge said was destructive of it. He had argued that if the group had all been together on the 21st the boy could not have seen Charlotte on her own at 12.30pm that day. He must therefore have seen her on the 28th. If the judge was going to comment at all at this stage of his summing-up he should have reminded the jury of this point at the same time. 43. But this point cut both ways. Equally it seems to us that if the group had all been together on the 28th, the boy could not have seen Charlotte on her own on that day either. In the passage in which this comment appears, the judge was reminding the jury of the different issues which arose on the defence evidence of sightings in preparation for giving them a direction about evidence of identification called by the defence. The comment, if that is what it was, was factually accurate, as the judge's summary of the boy's evidence at page 59 of the summing-up makes clear. For these reasons we do not think the judge can be criticised for what he said. 44. Mr Mott also criticises the last sentence of the passage we have quoted. This, he says, was an improper comment on a central issue in the case. It took no account of the unconventional lifestyles of Charlotte and her friends to which we have referred. She might have gone to ground over the weekend. There would have been nothing unusual about that, as the fact that she was not reported missing for five days demonstrates. The comment, Mr Mott says, was followed by a warning to the jury to consider how reliable witnesses had been as to times, days and dates, and a summary of the evidence about how home-loving and gregarious Charlotte was. In this context, Mr Mott submits, the comment should never have been made. 45. Mr Mott relied on the recent case of Bryant [2005] EWCA Crim. 2075 in support of the well-known principle that the judge's summing-up must be neutral and must reflect the case which has been presented to the jury as a balanced whole. It is wholly impermissible for the judge to give the impression that he favours one side rather than another (see paragraph 29). 46. Shortly before he made the comment in question, the judge had given the jury the conventional direction: "... if I should make any comment which you think may reflect my view of a particular piece of evidence; if you agree, then by all means adopt it; but if you disagree, do not hesitate to reject it." Soon after the comment the judge reminded the jury of the evidence about Charlotte's lifestyle. He said: "She socialised enthusiastically. You may have a picture of her - weekends spent by a large group of people, all known to each other, treading much the same path as had been trodden on the previous weekend -- the Queen's, Prince Albert, the nightclubs, and somebody's house for more partying...... Certainly Charlotte drank and took drugs - cannabis, Ecstasy and cocaine. Nobody says that she was addicted to any particular drug, but when she went out in the evening, drugs were a part of the evening's entertainment." Later in the summing-up, as promised, the judge reminded the jury of the evidence of each of the defence witnesses and of the reasons each gave for saying they remembered the date of their sighting. It is not suggested by Mr Mott that the summing-up as a whole was unfair. Whilst perhaps the comment in question ought not to have been made when it was, we do not think it unbalanced what was otherwise a long, careful, clear and fair summing-up. 47. The appellant himself has put before the court a number of points which his counsel did not think raised arguable grounds of appeal. They centre around the assertion that Gus O'Brien was in some way involved in Charlotte's death or disappearance. He had lied when he denied being a drug dealer. He had refused to give his DNA. His flatmate and "main man", who was a fisherman, and another friend who owned a boat, had not been called. 48. We have considered these and the other points which the appellant has raised but like his counsel do not think they raise arguable grounds of appeal. 49. That therefore brings us to the additional evidence which we heard without prejudice to our decision as to whether or not we should receive it under section 23 of the Criminal Appeal Act 1968 . Put shortly this evidence comes from two more witnesses who say they saw Charlotte with Gus and others in the Victoria on the afternoon of Saturday 28th February. 50. The first of these witnesses is Mr Nicholas Perrin. He is a postman in Ilfracombe. Mr Perrin said that he had come forward after being asked by the appellant's grandmother whether he had seen Gus in the Victoria on the 28th and after discussion with Mr Holford and Mr Townsend who, as we know, were saying that they had seen Charlotte in the Victoria on that day. Mr Perrin said that he had also seen her then and made a statement to the appellant's solicitors on 3rd April 2005. In this statement he said that he remembered the date because he had worked overtime that morning which he did not normally do. In this statement he said that he had worked on the 28th from 3.45am to 11.00am, gone home and then been taken to the Victoria, where he recalled looking at the clock when he arrived and noting that it was around 2.00pm. He then gave an account which he repeated to us of having seen Gus, whom he knew, with two other males and a girl who was crying and sitting on Gus's knee. She kept walking out and returning to Gus's knee. The whole group looked wrecked, as if they had had a very heavy night. 51. Mr Perrin's first statement was supported by a statement from Mr Redmore, a post office delivery office manager, who said that Mr Perrin had worked overtime on the 28th but not on Saturday 21st February. 52. It transpired that both Mr Perrin and Mr Redmore were wrong about this. Mr Perrin had worked on the 21st. We now have the post office records which show that on the 21st he worked the shift between 4.45am and 10.45am: the late shift or, as he described it, "bribe duty". On the 28th February he had worked the early shift: 03.45 to 12.45pm. The taxi records show that he was collected from his home for the five or 10 minute ride to the Victoria at 1.17pm on the 21st and 2.20pm on the 28th. 53. Mr Perrin accepts that he made a mistake in his first statement but maintains that his sighting was on 28th February. His reason for saying this now is that he remembers that it was on the day he worked the early shift and because, as he has always maintained, it was the day when Mr Townsend was drinking orange juice. 54. Mr Perrin was obviously an honest witness doing his best to remember when he had seen this group in the Victoria. We think it would be right to receive and consider his evidence on this appeal without embarking upon any fine analysis as to whether it meets the section 23 criteria. But having considered Mr Perrin's evidence we do not think his recollection of the date is reliable. The 28th was first suggested to him and emerged in his first statement after discussion with Mr Holford and Mr Townsend. His first reason for remembering the date proved to be wrong. The times he gave in his first statement - finishing work at 11.00am and arriving at the pub at 2.00pm are more consistent with what it transpires he actually did on the 21st than with what he actually did on the 28th. We found his later attempt to justify remembering the 28th by the fact that this was the day he did the earlier shift unconvincing. The reference to Mr Townsend drinking orange juice is of course dependent upon Mr Townsend's evidence about that date being accurate. The jury obviously concluded that it was not. 55. This morning Mr Mott, made a further point that Mr Perrin's evidence was that on the day he describes the group were already in the pub when he arrived (about 1.30pm). That could not have been the 21st if the group had watched the match between Arsenal and Chelsea because they would not have got to the Victoria until well after 2.00pm that day. However, there was a discrepancy between the evidence of Mr Holford and Mr Townsend as to when the group arrived in the pub. Mr Holford said it was between 12.30pm and 1.30pm; Mr Townsend said that they had come in at about 3.00pm. So there is a doubt about whether the group were in the pub at the time Mr Perrin arrived or not and this point does not cause us to change our assessment of Mr Perrin's evidence. It was a point which could be made on Mr Holford's evidence in any event. 56. Despite our conclusion about Mr Perrin's evidence, we should obviously consider whether cumulatively it and the other grounds of appeal cast doubt upon the safety of the appellant's conviction. 57. But before considering this we must deal with the other evidence which we have heard from Poppy Humphries who says she was in the Victoria with her father on the afternoon of the 28th when she saw Charlotte whom she knew with Gus and other people. 58. We think the least said about this evidence the better. It is not capable of belief and therefore should not be received by this court. Put shortly, our reason for reaching this conclusion is that the evidence she gave about a statement which she made to the police during the course of the murder enquiry in this case and her assertion that she had told the police of what she had seen on the 28th was self-evidently untrue. 59. So finally we turn to consider whether cumulatively the grounds of appeal and the additional evidence which we have received cast any doubt on the safety of the appellant's conviction. The circumstantial case against the appellant was very strong. There was no explanation for the scientific evidence against him. How did Charlotte's blood come to be on his trainers? How did so much of her blood come to be found in the car in which he drove her away from the party, including a stain on the hoodie which was found to contain both his and Charlotte's DNA? Why did the hoover with which he had cleaned out the car contain a button and thread identical to that which had been on Charlotte's trousers? How did Charlotte's bag come to be on the track along which the appellant must have passed and re-passed to get to and from the tunnel? The fact that it was first seen between 11.15am and 12.15pm on the 28th strongly supported the fact that she was dead by then and cast considerable doubt on the evidence of later sightings. How did Charlotte's boot come to be on waste ground close to the appellant's house? Added to this formidable circumstantial case was the evidence about the appellant's appearance on the Saturday morning and his activities then and in the days which followed. 60. Against this and, as Mr Mott put it, pulling in the opposite direction, was the evidence of later sightings which of course the scientific evidence could not disprove as such. It raised an issue which was classically one to be resolved by the jury. They resolved it against the appellant. There was ample evidence from which they could conclude that the defence witnesses were mistaken, notably the evidence from those who actually were in Gus's group that they had gone to the Victoria on the 21st and not the 28th. We do not think that a further witness in the shape of Mr Perrin supporting the evidence which the jury already had from Mr Holford and Mr Townsend would have made any difference. 61. For these reasons we conclude that the appellant's conviction is safe and therefore his appeal against conviction must be dismissed.

2006_06_23-850.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1720/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1720

17658a05e372831b397211d205bfc45068370870a756be4a2d621b9efdf4d0fa

[2003] EWCA Crim 3450

EWCA_Crim_3450

supreme_court

Case No: 200206398 D2 & 200205294 D5 Neutral Citation Number: [2003] EWCA Crim 3450 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT & THE CENTRAL CRIMINAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Friday 28 th November 2003 Before : LORD JUSTICE LATHAM MR JUSTICE MOSES and SIR EDWIN JOWITT - - - - - - - - - - - - - - - - - - - - - Interlocutory Application under s. 35/36 Criminal Procedure & Investigations Act 1996 HARRY CH

Case No: 200206398 D2 & 200205294 D5 Neutral Citation Number: [2003] EWCA Crim 3450 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT & THE CENTRAL CRIMINAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Friday 28 th November 2003 Before : LORD JUSTICE LATHAM MR JUSTICE MOSES and SIR EDWIN JOWITT - - - - - - - - - - - - - - - - - - - - - Interlocutory Application under s. 35/36 Criminal Procedure & Investigations Act 1996 HARRY CHAIM GOLDSTEIN - v - R - - - - - - - - - - - - - - - - - - - - - (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 Jonathon Goldberg, QC & Mr Gary Grant (instructed by Registrar ) for the Appellant Goldstein Mr David Perry & Ms Tracy Jane Ayling (instructed by CPS (HQ) ) for the Respondents Mr Bernard Eaton & Ms Katharine Blackburn (instructed by Coninghams, Solicitors) for the Appellant R Mr David Perry & Mr Mark Rainsford (instructed by CPS (HQ) ) for the Respondents - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham: 1. These two appeals have been heard together because they both raise the question of the nature of the common law offence of causing a public mischief and whether it has survived the coming into effect of the Human Rights Act 1998 . The appellant R appeals under section 35 of the Criminal Procedure and Investigations Act 1996 against a preliminary ruling by Leveson J that the indictment that he faced of causing a nuisance to the public between the 25 th May 1992 and the 13 th June 2001 by sending 538 separate postal packages containing racially offensive material charged him with an offence known to the common law and that its prosecution did not amount to an abuse of process as being in breach of Article 7, 8 and/or 10 of the European Convention on Human Rights. The appellant Goldstein appeals against his conviction of causing a public nuisance by sending an envelope through the post on October 18 th 2001, at the height of the security alerts after the events of September 11 th 2001, containing salt which leaked out at the sorting office at Wembley causing the evacuation of 110 postal workers and the attendance of specialist police officers to determine whether or not the salt was in fact anthrax. 2. That short description of the nature of the two indictments suffices for the purposes of considering the main submission in both appeals, although it will be necessary to return to the facts in order to deal with arguments which are specific to each appellant. 3. Common law has long recognised the crime of causing a public nuisance. It is not necessary for the purposes of this judgment to trace its origins and its history. These have been set out in an article by JR Spencer, “Public nuisance – A critical Examination” published in the Cambridge Law Journal in March 1989. The current definition of the offence in the 2003 Edition of Archbold at paragraph 31-40 is as follows: “Public nuisance is an offence at common law. A person is guilty of a public nuisance (also known as a common nuisance) who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment rights common to all Her Majesty’s subjects.” 4. This definition is taken from Stephen’s Digest of the Criminal Law, 9 th Edition, 1900 which defined the offence at page 184 in the following terms: “A common nuisance is an act not warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty’s subjects.” 5. This latter definition is the one adopted in the 10 th Edition of Smith and Hogan at page 772. It was also relied upon by the Court of Appeal in Attorney General –v- PYA Quarries [1957] 1 All ER 894, which was a relator action for an injunction to restrain a public nuisance caused by dust and vibration in a quarry. Romer LJ said at page 902: “I do not propose to attempt a more precise definition of a public nuisance than those which emerge in the text books and authorities to which I referred. It is, however, clear in my opinion, that any nuisance is “public” which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects. The sphere of the nuisance may be described generally as “the neighbourhood”; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has so been affected for an injunction to issue.” 6. Denning LJ said at page 908: “What is the difference between a public nuisance and a private nuisance? He [that is counsel] is right to raise it because it affects his clients greatly. The order against them restrains them from committing a public nuisance, not a private one. The classic statement of the difference is that a public nuisance affects Her Majesty’s subjects generally, whereas a private nuisance only affects particular individuals. But this does not help much. The question: “When do a number of individuals become Her Majesty’s subjects generally” is as difficult to answer as the question: When does a group of people become a crowd? Everyone has his own views. Even the answer “Two’s company, three’s a crowd” will not command the assent of those present unless they first agree on “which two”. So here I decline to answer the question how many people are necessary to make up Her Majesty’s subjects generally. I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so wide spread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.” 7. As this court explained in R –v- Shorrock 98 Cr App R 67 , a public nuisance gives rise to a liability both in criminal and civil law. It can attract the sanction of a criminal charge or civil liability pursuant to a relator action or a claim for damages. But the definition of a public nuisance is the same. 8. It is submitted, however, on behalf of the appellants that this definition is so vague and uncertain in its scope that it should no longer be recognised at common law, and offends against the principle of legal certainty enshrined in Article 7 (1), 8(2) and 10(2) of the European Convention on Human Rights. 9. Dealing first with the position at common law, we have been referred to DPP –v- Withers [1975] AC 842 where the House of Lords considered the validity of an indictment charging the offence of conspiracy to effect a public mischief. It held that there was no such offence. We have been referred in particular to the speech of Lord Dilhorne, where he said at page 861: “The preferment of charges alleging public mischief appears to have become far more frequent in recent years. Why this is, I do not know. It may be that it is due to a feeling that the conduct of the accused has been so heinous that it ought to be dealt with as criminal and that the best way of bringing it within the criminal sphere is to allege public mischief and trust that the courts will fill the gap, if gap there be, in the law. But if gap there be, it must be left to the legislature to fill. I hope that in future such a vague expression as “public mischief” will not be included in criminal charges. It introduces a wide measure of uncertainty and should not be a vehicle for the enlargement of the criminal law or a device to secure its extension to cover acts not previously thought to be criminal.” 10. It is submitted that those words are equally applicable to a charge of causing a public nuisance. We are urged to accept the argument of Mr Spencer in the Article to which we have referred, that the concept of public nuisance, which was a useful, if not the only, tool at one time available for controlling activities which affected the health and welfare of the community, has been extended to an extent that gives rise to the risk that it could be used for the purposes of prosecuting any persons whose actions are deemed to be unacceptable to the authorities. We disagree. A number of decisions of this court demonstrate its utility as providing a criminal sanction for the proper control of those who subject their fellow citizens to intolerable behaviour. 11. In R –v- Shorrock to which we have already referred, it was accepted that the use of land for an unauthorised “acid party” causing substantial inconvenience and disruption to neighbours was capable of amounting to the crime of public nuisance; the only question was the requisite mens rea. In R –v- Johnson [1996] 2 Cr App R 434, this court upheld the appellant’s conviction of causing a public nuisance for using the public telephone system over a period of about 5 ½ years to cause nuisance, annoyance, harassment, alarm and distress. He had made hundreds of obscene telephone calls to at least 13 women. Tucker J, giving the judgment of the Court said: “In his submissions to us on behalf of the appellant, Mr Haworth made two points. First, that each of these telephone calls was a single isolated act to an individual person, which may have represented a private nuisance, but it is wrong to lump them all together and to regard the cumulative effect as an offence of public nuisance. Secondly, that, in any event, the scale and width of the conduct complained of was insufficient to constitute a public nuisance. In our judgment it is permissible and necessary to look at the cumulative effect of these calls made to numerous ladies on numerous occasions in the case of each lady, and to have regard to the cumulative effect of the calls, in determining whether the appellant’s conduct constituted a public nuisance. In our opinion it was conduct which materially affected the reasonable comfort and convenience of a class of Her Majesty’s subjects …. It was a nuisance which was so wide spread in its range, or so indiscriminative in its effect, that it would not be reasonable to expect one person to take proceedings on her own responsibility but that it should be taken on the responsibility of the community at large…. It was proved by the Crown that the public, meaning a considerable number of persons or a section of the public, was affected, as distinct from individual persons …. The second point involves a question of fact, which was properly left to the jury. Here was an indiscriminate selection of members of the public with whom the appellant had come into contact. It was not a selection of a few individuals. It was a case in which ladies generally who lived in the South Cumbria area, and whose telephone numbers had become known to this appellant, were at risk from him of being harassed and caused annoyance, alarm and distress. Whether there was a sufficient number of complainants of calls to amount to a public nuisance was a question for the jury to decide following proper directions such as were given in this case.” 12. In our view, these cases provide clear authority, by which this court is bound, for the continued existence of the offence of public nuisance at common law, as defined in the current edition of Archbold. Despite the attractive submissions made to us, in particular by Mr Eaton in his skeleton argument, we are therefore satisfied that these indictments are properly laid at common law. As this court said in R –v- Madden [1975] 61 Cr App R 254 : “It is, in our view, still an offence known to the law of this country to commit a public nuisance” 13. The question then arises as to the effect of the Human Rights Act 1998 , and the Articles of the Convention to which we have already referred. The first Article which requires consideration is Article 7.1 which provides: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed….” 14. The essential principle which the offence of public nuisance is said to infringe is that a law must be formulated with sufficient precision to enable a citizen to regulate his conduct. It is similar to the concept required in Articles 8.2 and 10.2, to which we will return, that the derogation from the right protected by those Articles can only be justified if it is “in accordance with the law” (Article 8.2) or “prescribed by law” (Article 10.2). The latter phrase was considered by the European Court of Human Rights in The Sunday Times –v- The United Kingdom 2 EHRR 245. It stated at paragraph 49: “… A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree which is reasonable in all the circumstances, the consequences that a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unobtainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” 15. In the context of Article 7, we have been referred to the decision of X Ltd and Y Ltd –v- UK 28 DR 77 which was an application in which the European Commission of Human Rights (“the Commission”) considered the common law offence of blasphemous libel. At paragraph 9, the Commission stated: “The Commission considers that the same principles also apply to the interpretation and application of the common law. Whilst this branch of the law presents certain particularities for the very reason that it is by definition law developed by the courts, it is nevertheless subject to the rule that the law making function of the courts must remain within reasonable limits. In particular in the area of the criminal law it is excluded, by virtue of Article 7(1) of the Convention, that any acts not previously punishable should be held by the courts to entail criminal liability, or that existing offences should be extended to cover facts which previously clearly did not constitute a criminal offence. This implies that constituent elements of an offence such as e.g. the particular form of culpability required for its completion may not be essentially changed, at least not to the detriment of the accused, by the case law of the courts. On the other hand it is not objectionable that the existing elements of the offence are clarified and adapted to new circumstances which can reasonably be brought under the original concept of the offence.” 16. The respondents submit that this decision is in fact helpful to them. Mr Perry submits on their behalf that the elements of the offence are perfectly clear, and their application to the present cases is merely an example of the way in which the law can be utilised to deal with new factual situations. He has referred us to SW –v- United Kingdom and CR –v- United Kingdom [1995] 21 EHHR 363 where the Court considered and rejected complaints by two applicants who had been found guilty of raping their wives which was an undoubted extension of the concept of rape as had been previously understood. Although the Commission had declared the complaints admissible, he relies on paragraph 48 of its opinion at page 375 of the report, in which the Commission stated: “It is however compatible with the requirements of Article 7(1) for the existing elements of an offence to be clarified or adapted to new circumstances or developments in society in so far as this can reasonably be brought under the original concept of the offence. The constituent elements of an offence may not however be essentially changed to the detriment of an accused and any progressive development by way of interpretation must be reasonably foreseeable to him with the assistance of appropriate legal advice if necessary.” 17. We consider that Mr Perry’s submissions are correct. If the law can be adapted to deal with new situations, it is clear that the law can be applied to new situations. The elements of the offence are sufficiently clear to enable a person, with appropriate legal advice if necessary, to regulate his behaviour. All that is required is a reasonable degree of foreseeability of the consequences which action or conduct may entail. The indictments in the present cases do no more than seek to apply the elements of the offence to the particular facts; and it is for the jury, appropriately directed, to determine whether or not the charges are made out. A citizen, appropriately advised, could foresee that the conduct identified was capable of amounting to a public nuisance. We do not accordingly consider that there has been any breach of Article 7. 18. We turn then to Articles 8 and 10. They essentially raise the same issue of principle and can conveniently be considered together. Article 8 provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others.” 19. Article 10 provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference from public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 20. It is submitted on behalf of the appellants that a prosecution for committing a public nuisance is capable of resulting in a breach of Articles 8.1 or 10.1, that it is not a law which is sufficiently certain to justify interference on the basis that it is either “in accordance with law” or “prescribed by law” and that the interference is not “necessary in a democratic society”. 21. We recognise that the offence is capable of interfering with the rights protected by Articles 8.1 and 10.1. In the R appeal, the latter is clearly exemplified. The question accordingly is whether or not the interference can be justified under Articles 8.2 and 10.2. We consider that the question of whether or not the interference was “in accordance with law” or “prescribed by law” has been answered by our conclusion that there has been no breach of Article 7, and the reasons which we have given for that conclusion. The remaining question is, therefore, whether or not the offence can properly be described as “necessary” in that it is intended to meet a pressing social need of the sort identified in each of those Articles. In particular, in relation to Article 10, we accept that the right to freedom of expression includes the right to “offend, shock and disturb” as the Court stated in Handyside –v- United Kingdom [1976] 1 EHRR 737 at paragraph 49. The jurisprudence of the Commission and the Court has, however, consistently pointed out that in accordance with Article 10.2 a state can legitimately impose limits to this freedom for the preservation of disorder or crime, the protection of morals and for the protection of the rights and freedoms of others. This includes the right of the public not to be outraged by the public behaviour of others. 22. In S and G –v- United Kingdom [2 September 1991, application No 17634/91] the Commission considered the common law offence of outraging public decency committed by an artist and art gallery curator who had exhibited a model with freeze dried human foetuses as earrings. The Commission, while recognising that freedom of artistic expression fell within the ambit of Article 10, declared the application inadmissible as being manifestly ill founded. It found that the offence of outraging public decency: (a) was prescribed by law, and (b) pursued the legitimate aim of protection of morals and (c) was not disproportionate and could be regarded as necessary in a democratic society. 23. The Court subsequently considered the problem in the context of the law of blasphemy. In Wingrove –v- United Kingdom 24 EHRR 1 , the Court held that the law of blasphemy, although imprecise, was nonetheless justified. The applicant had been refused a certification certificate for his video “Visions of Ecstasy” on the basis that it infringed the criminal law of blasphemy. The Court found that the offence was prescribed by law and served the legitimate aim of protecting the rights of others. The court held that the interference with the applicants rights under Article 10 was not disproportionate and could be regarded as necessary in a democratic society on the basis that: “…the English law of blasphemy does not prohibit the expression, in any form, of views hostile to the Christian religion. Nor can it be said that opinions which are offensive to Christians necessarily fall within its ambit. As the English courts have indicated, it is the manner in which views are advocated rather than the views themselves which the law seeks to control. The extent of insult to religious feelings must be significant as is clear from the use by the courts of the adjectives “contemptuous”, “reviling”, “scurrilous”, “ludicrous” to depict material of a sufficient degree of offensiveness. The high degree of profanation that must be attained constitutes in itself, a safeguard against arbitrariness. It is against this background that the asserted justification under Article 10(2) in the decisions of the national authorities must be considered.” 24. In Muller –v- Switzerland [1991] 13 ECHRR 212, the Court considered a complaint that Article 10 had been infringed by the applicant’s conviction of an offence of publishing obscene items, consisting of paintings which were said “mostly to offend the sense of sexual propriety of persons of ordinary sensitivity”. In holding that there was no breach of Article 10, the court said: “Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph (2) of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, “duties and responsibilities”; their scope will depend on his situation and the means he uses. In considering whether the penalty was “necessary in a democratic society”, the Court cannot overlook this aspect of the matter.” 25. In our view, the offence of causing a public nuisance is a proper and proportionate response to the need to protect the public from acts, or omissions, which substantially interfere with the comfort and convenience of the public as being taken in the interests of public safety, for the prevention of disorder, for the protection of health and morals, and in particular the need to protect the rights of others. The level of imprecision inherent in the offence is necessary to enable it to be applied flexibly to meet new situations. We therefore reject the argument that the offence is capable of amounting to a breach of Articles 8 or 10. 26. We turn therefore to consider the individual appeals. R 27. The indictment as finally amended, charged the appellant as follows: “Between 20 th May 1992 and 13 th June 2001 caused a nuisance to the public, namely by sending 538 separate postal packages as detailed in a schedule SQ28 containing racially offensive material to members of the public selected by reason of their perceived ethnicity or further support such group, or randomly selected in an attempt to gain support for his views, the effect of which was to cause annoyance, harassment, alarm and distress.” 28. The prosecution case was that the letters identified in the indictment constituted a campaign of a racial nature consisting as it did of letters and packages containing seriously offensive remarks about racial minorities. According to the evidence, recipients felt intimidated and harassed. The material was clearly drafted to offend and to cause distress. When arrested and interviewed the appellant said that his campaign had been precipitated by a racially motivated assault upon him by a black male in 1992. He said that following this incident, he decided that because he had been caused physical anguish he was going to cause “them” mental anguish. 29. The judge determined to hold a preliminary hearing under the provisions of the Criminal Procedure Investigations Act 1996 on the basis that the indictment revealed a case of such complexity or a case whose trial was likely to go to such length that substantial benefits were likely to accrue from hearing before the jury was sworn. He referred to the fact that, although the authorship of the letters was not disputed, they filled seven lever arch files which the jury, depending on his ruling, would have to consider. There would be lengthy legal argument. As we understand it, neither the appellant nor the respondent objected to this course, indeed both welcomed it. 30. After hearing legal argument, the judge held, rightly as we have found, that the offence of public nuisance was an offence known to common law and its prosecution did not amount to a breach of any of the Article of the Convention to which we have already referred. He concluded that the campaign was capable of going beyond the dissemination of material expressing views which might offend, shock or disturb, which a democratic society should permit and was capable of amounting to a material interference with the comfort and convenience of a substantial section of the population. In other words he concluded that the evidence was capable, depending upon what view the jury took, of amounting to the offence of public nuisance. 31. Mr Eaton submits on behalf of the appellant that the judge was wrong to come to that conclusion. He was not entitled to treat the 538 packages sent over a period of nine years as one offence. Each document had to be considered separately and as such could not amount to a public nuisance even if it might have caused distress to the individual to whom it was sent. And taken individually, each letter was merely an expression of opinion which was protected by Article 10. He further submitted that the indictment was bad for duplicity. 32. We reject these submissions. The nuisance consisted of the campaign which the appellant himself admitted was intended, at least in part, to cause mental anguish. This court held in R –v- Johnson, to which we have already referred, that such a campaign could justifiably be described as one public nuisance. We see no reason for distinguishing the reasoning in that case. It follows that the single charge is appropriate and not bad for duplicity. Further, the nature of the contents of the letters and packages was such that the jury, properly directed could conclude that it went beyond the limits of what people in a democratic society can be expected to tolerate bearing in mind the importance of freedom of expression, but amounted to an unreasonable interference with the rights and comforts of others. This does not mean, however, that the jury is itself required to carry out a balancing exercise under Articles 8(2) and 10(2). As we have said, the offence is compatible with Articles 8 and 10 if its ingredients are satisfied. We dismiss the appeal. Goldstein 33. This appellant was charged in the indictment with causing a public nuisance by posting a letter containing salt. The appellant who was a supplier of kosher foods in Manchester, owed money to one of his suppliers which was owned by a friend called Abraham Erlich. He sent a cheque for the sum that he owed in an ordinary brown envelope addressed to “Ibrahim Erlich” and put into the envelope a small quantity of salt which he described as about the size of half a smartie. It arrived at the sorting office at Wembley on the 19 th October 2001, some five weeks or so after the events of the 11 th September, and at the height of the anthrax scare. At that time, it was thought, certainly by those working in the sorting office, that two United States Postmen had died of anthrax poisoning. 34. Mr Owen, the sorter, placed the envelope on its appropriate rack at which point some of the salt leaked out through the unsealed part of the envelope onto his hands. He was concerned that it might be anthrax or some other substance and immediately reported it to his line manager. The envelope was placed in a sealed bag and the building was evacuated. About 110 people worked there at the time. The Special Unit created by the Metropolitan Police to deal with such incidents was called. The officer in charge inspected the envelope and its contents and was satisfied that the substance was salt. The workers returned an hour to an hour and a half after they had first been evacuated. Sufficient disruption was caused to result in the second delivery being cancelled that day which resulted in a significant number of complaints, in particular from businesses. 35. The appellant’s explanation in interview was that it was intended as a joke, and he would have expected the recipient to have taken it as a joke. He accepted that he had deliberately addressed his friend as Ibrahin in order to highlight the point. He said that he had no idea that the salt would leak out, but accepted that the escape of the salt could have terrified the postal worker in the light of the climate at the time. 36. There are three grounds of appeal which raise issues other than issues of principle with which we have already dealt. The first ground is that the judge wrongly rejected the submission of no case to answer. It is submitted on behalf of the appellant that the words in the definition requiring the act to be “unwarranted” means that for the offence to be committed, the act in question much be one in respect of which the court would be prepared to grant an injunction. We find this argument difficult to follow. It begs the question. If posting an envelope as the appellant did amounts to a public nuisance, then we see no reason why an injunction would not lie. It merely brings the argument back to the question of whether it amounts to a nuisance. The phrase “not warranted by law” is there to provide an answer to the charge wherever the act is done pursuant to a legal authority to do so. 37. The second ground or appeal relates to the summing up. It is accepted that when directing the jury as to the actus reus of the offence, the judge correctly summarised the elements of the offence. He however elaborated that direction as follows at page 9.G. “Of course putting salt into an envelope is not by itself an illegal act but if in doing that you create the pretence that it is anthrax then that is capable, it is a matter for you to decide whether it is or not, of creating a nuisance. Of course it would be an innocent act to send salt through the post for an innocuous reason. Using Mr Goldberg’s example sending salt to somebody who had forgotten to take it for the next days picnic or something of that nature, that would be a wholly innocuous act, an innocent act for an innocuous purpose. But that would not necessarily be the case if it was done as pretence that it was anthrax. That of course is the fundamental part, you may think, of the allegation made by the prosecution…. Now only if you are sure that his act created the pretence and lead to the those consequences that I have mentioned would you go onto the next question. That is the first question you have to answer. Are you sure that his act created the pretence and led to the consequences that occurred? If you decide his act in posting the letter containing the salt did not have those results or if you are not sure, then he is not guilty. I should make it clear at this point whether it is done as a private joke or to shock Mr Erlich is only relevant in the context of you deciding whether the salt was sued to simulate the appearance of anthrax. To put it this way, if Mr Erlich had received it, however shocked he may have been by it, it would not have been a public nuisance at all. It may have been some other offence but it would not have been a public nuisance.” 38. It is submitted that this direction was confusing in that it added an unnecessary and unwarranted ingredient to the offence. We agree that these passages are capable of being confusing. They come in the part of the summing up in which the judge was seeking to direct the jury as to the actus reus of the offence. In doing so he appears to have conflated the actus reus and the mens rea. But the fact of the matter is that the confusion was to the benefit of the appellant. In fact all the jury had to be satisfied about in relation to the actus reus was that the act had to be one whose effect “is to endanger the comfort of the public, or obstructs the public in the exercise or enjoyment of its rights which are common to all Her Majesty’s subjects ……” which was the direction given to the jury in the first instance. It follows that the jury could not have been confused in a way which was to the disadvantage of the appellant, so as to undermine the safety of the conviction. 39. The third ground of appeal was in the following terms: “We submit that the jury should indeed have been directed in clear terms only to convict if they were sure the Crown had proved D intended to simulate anthrax in the sense that the recipient Erlich should fear it really was anthrax, albeit only for a short time. They were not so directed.” 40. Mr Goldberg however, did not pursue this ground as drafted, but sought to argue that the judge was wrong to direct the jury as he did that they could convict on the basis that the appellant ought to have known that there was a real risk that the consequences of his act would be to create a nuisance. He accepts that the direction by the judge was in accordance with the decision of this court in R –v- Shorrock . But he submits that we should depart from that decision on the grounds that it was wrongly decided. He did not develop this argument with any reasoned submissions. And, not surprisingly, in the light of the way in which the grounds of appeal were drafted, and in the absence of any indication that the point was to be taken in the skeleton argument, Mr Perry for the respondent had not himself appreciated that the point was going to be taken. Suffice it to say that we do not consider that is any justification for this court departing from the decision in R –v- Shorrock. In those circumstances this ground must also fail. 41. It follows that the appeal is dismissed. - - - - - - - - - - - - - LORD JUSTICE LATHAM: For the reasons given in a judgment, copies of which have been provided to the parties and which we now hand down, the appeals in both cases are dismissed. MR GOLDBERG: My Lords, the two items remaining to decide are, firstly, an application which I make for Goldstein and which I understand will also be made for R for leave to appeal to the House of Lords and, of course, for your Lordships to certify relevant questions. LORD JUSTICE LATHAM: We have seen your proposed questions. We have not in fact heard from the prosecution as to whether or not there have any representations which they wish to make. MR GOLDBERG: Yes. MR RAINSFORD: I can deal with that very briefly indeed, my Lord. The only possible substantive point, we would submit, would be the Shorrock mens rea point, which does not arise out of the judgment. As your Lordship knows, before the House of Lords would want to consider an appeal on such a basis they would want a fully considered judgment from this court. LORD JUSTICE LATHAM: Yes. MR RAINSFORD: And we do resist the application accordingly. LORD JUSTICE LATHAM: Mr Goldberg, there is a problem, in that your argument was not developed: you simply indicated to us by submission in relation to the case of Spencer that we might have power to depart from Shorrock , but beyond that the argument never went. MR GOLDBERG: My Lord, other than recent dicta in the House of Lords there is little one can add. Shorrock is either right or it is wrong. The spirit of the law has changed, as indicated by the dicta in the case of G , to which I referred your Lordship. But the issue is simple: is it right or is it wrong? In a sense the court is bound by that decision and there is little more that could be said. LORD JUSTICE LATHAM: There are quite a few problems, it seems to me, that need to be teased out in that particular area because the basis of the Shorrock decision was the relationship of public nuisance to private nuisance, which may be an area of some interest to their Lordships and might have been helped by some detailed argument which we did not have. You submit that the points of law to be certified should include, if there are any, the Shorrock point? MR GOLDBERG: My Lord, yes. But with great respect to what Mr Rainsford has just said, I do not understand why he says there are no substantive grounds of appeal because of course your Lordships have decided the way in which the human rights legislation applies to public nuisance, and that is new. LORD JUSTICE LATHAM: Yes. MR GOLDBERG: Unless you want me to develop that, I would argue it speaks for itself. Your Lordships' judgment is an important judgment and a new judgment in this field. LORD JUSTICE LATHAM: Are there any other submissions in support of Mr Goldberg? MISS BLACKBURN: I simply adopt the position as pointed out in the certified points. LORD JUSTICE LATHAM: Yes. (The Bench conferred.) LORD JUSTICE LATHAM: Mr Goldberg, we do consider that there are some issues which can properly be certified, but we are not convinced that as drafted by you they really are an appropriate set of questions. What we would suggest is, for your consideration, that we keep the question 1 as drafted: "Is the mens rea requirement of the common law offence of causing a public nuisance satisfied by proving that the defendant either knew or ought to have known, in the sense that the means of knowledge were available to him, that there was a real risk that the consequence of his actions would be to create the sort of nuisance that in fact occurred?" The second question should be: "If not, what is the mens rea ?" MR GOLDBERG: Yes. LORD JUSTICE LATHAM: Then the next questions should, in our view, be formulated in the following way. The third question is: "Is the offence of causing a public nuisance as currently defined compatible with Articles 7, 8 and 10 of the European Convention on Human Rights, or does the question of compatibility fall to be decided on the facts of the particular public nuisance alleged to have been caused?" Fourth: "If the latter, is it for the jury or the judge alone to decide the issue of compatibility?" That wraps up the issues that you had in mind. MR GOLDBERG: I agree. LORD JUSTICE LATHAM: We would be prepared to certify those questions, but we refuse leave to appeal. MR GOLDBERG: Does your Lordship possibly have those questions reduced to writing, because, if so, a copy would be very gratefully received so we have them exactly? LORD JUSTICE LATHAM: Yes. MR RAINSFORD: May I raise one matter, please? LORD JUSTICE LATHAM: Yes. MR RAINSFORD: It is the issue of publicity, which of course normally under section 37(1) of the CPIA is prima facie forbidden. Mr Perry has asked me to mention to the court that he submits that it may be of considerable use for the judgment to be circulated at the present time and there would be no prejudice to either defendant. LORD JUSTICE LATHAM: I suppose because the two are wrapped up together, it means that the Goldstein judgment cannot be shelled out from the R judgment. MR RAINSFORD: It could be redacted but it would be very difficult, I respectfully agree. LORD JUSTICE LATHAM: Miss Blackburn, this affects your client; have you any submissions as to that? MISS BLACKBURN: The only submission I can make is that I have spoken to Mr Eaton and the decision was that perhaps his name could be protected and it could be reported simply by way of an initial. LORD JUSTICE LATHAM: That seems to be a satisfactory solution, does it not? MR RAINSFORD: It does indeed, I respectfully agree. LORD JUSTICE LATHAM: So we will deal with it in that way. MR RAINSFORD: Thank you very much. There are no issues as to costs in either appeal. LORD JUSTICE LATHAM: As far as costs are concerned, there is an issue of public funding costs. Mr Goldberg, what do you say? MR GOLDBERG: I hope that there has reached your Lordships shortly before you came into court an unreported decision -- LORD JUSTICE LATHAM: The judgment of the Lord Chief Justice? MR GOLDBERG: Yes. I am grateful to my learned friend Mr Grant, who found it this morning on the internet. We would submit that the guidance there given that you do not, in effect -- if I can put this into my own words -- want to deter a perfectly proper appeal, is very much in point in today's case. This is a case where leave was given by Leveson J, saying -- if I can remind you -- that "the true ingredients of the offence are in issue and in the circumstances it is appropriate to allow you to argue your grounds of appeal"; and, of course, questions have been certified for the House of Lords and the judgment itself is plain in covering important new ground. LORD JUSTICE LATHAM: As far as your client's means are concerned, has there been an assessment of his means? MR GOLDBERG: There has been no assessment. He has filled in a form and I can help your Lordships about his means. LORD JUSTICE LATHAM: First of all, can we start at the beginning? Was he publicly funded for the purposes of the trial? MR GOLDBERG: No, he paid privately for his trial and his total fees were £35,000. LORD JUSTICE LATHAM: Yes. MR GOLDBERG: And, indeed, he paid prosecution costs of £1,850 below, all of that paid. My Lords, he is a respectable small businessman of hitherto good character. He earns £52,000 a year - that is what is on his tax return for the last year in which he has done his returns, which is the year ending 2002. He has six children of his own, but he supports the two children of his deceased brother in addition. So there are eight children. He has the equity in his home, which one would expect, and he had about £70,000 in savings. But, other than that, he is a hard-working small businessman. We would submit that it is just the sort of case Lord Woolf had in mind. He was worried about bringing this appeal, can I tell you, because of this exact point. In our submission one is entitled to look at the merits of the case, at how arguable it was, and, indeed, the terms in which he was given leave. If I were wrong in that, can I invite you to at least cap the costs at a total figure? You would certainly have the power, as I see it, if I can just briefly refer you to the two relevant regulations. It is page 908 of the latest Archbold, paragraph 6-268. I will take you straight to the two regulations that seem to us in point. Regulation 3: "Where an individual receives representation in respect of criminal proceedings which is funded by the Lord Chancellor ... the court before which the proceedings are heard ..." LORD JUSTICE LATHAM: "... some or all the costs", yes. MR GOLDBERG: "... may make an order for recovery of defence costs order." The only other guidance is over the page there, regulation 12, 6-277: "Where the judge considers that it is or may be reasonable to make a recovery of defence costs order, he may make the order." So the test is reasonable . It is obviously a very wide discretion. Is it reasonable in this case where you have what I would call a middle class person who in a sense falls into the income trap, who has -- LORD JUSTICE LATHAM: Yes, I think we have your point, Mr Goldberg. MR GOLDBERG: Yes. LORD JUSTICE LATHAM: I do not think it can really be elaborated. MR GOLDBERG: No. I rely therefore on Lord Woolf's dicta. LORD JUSTICE LATHAM: We will retire. (The court adjourned for a short time.) LORD JUSTICE LATHAM: In the circumstances of this case, although the court clearly has the power here to make a recovery of defence costs order, we do not consider it necessary to make such an order in this case, it being a case in which issues of principle have been raised and have been considered by us to be sufficiently significant to certify questions for the House of Lords. In those circumstances, no order is made. MR GOLDBERG: I am obliged. My Lords, there only remains the written questions which seem to have disappeared. MR JUSTICE MOSES: I handed them down. MR GOLDBERG: I am very grateful, my Lord, thank you. LORD JUSTICE LATHAM: If you can make sure they are reduced into a form which can be handed into the court. MR GOLDBERG: Yes, we will write them out and supply them to your Lordships. LORD JUSTICE LATHAM: Thank you very much. The Court certified the following questions as involving points of law of general public importance but refused the grant of leave to appeal to the House of Lords: 1. Is the mens rea requirement of the common law offence of causing a public nuisance satisfied by proving that the defendant either knew or ought to have known, in the sense that the means of knowledge were available to him, that there was a real risk that the consequence of his actions would be to create the sort of nuisance that in fact occurred? (as per R v Shorrock [1994] QB 279 ). 2. If not, what is the mens rea? 3. Is the offence of causing a public nuisance as currently defined compatible with Articles 7, 8 and 10 of the European Convention on Human Rights, or does the question of compatibility fall to be decided on the facts of the particular public nuisance alleged to have been caused? 4. If the latter, is it for the jury or the judge alone to decide the issues of compatibility?

2003_11_28-149.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3450/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/3450

10d597d7761b157069bc6c4c27adb7321f7180c22c1b48e8c92ffba4935b8c73

[2019] EWCA Crim 2358

EWCA_Crim_2358

crown_court

[2019] EWCA Crim 2358 No: 201904287/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 17 December 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE CAVANAGH HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) R E G I N A v GARETH JOHN EVANS 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

[2019] EWCA Crim 2358 No: 201904287/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 17 December 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE CAVANAGH HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) R E G I N A v GARETH JOHN EVANS 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 P Rogers appeared on behalf of the Applicant Ms J Wood appeared on behalf of the Crown J U D G M E N T 1. HIS HONOUR JUDGE PICTON: On 4 October 2019, in the Crown Court at Gloucester before the Honourable Recorder of Gloucester (His Honour Judge Lawrie QC), the applicant pleaded guilty to causing death by careless driving. On 1 November 2019, before Mr Recorder Waddington QC, he was sentenced to 7 months' imprisonment and disqualified from driving for 2 years. The learned Recorder also imposed a requirement that the appellant undertake an extended re-test. 2. Given the length of the sentence imposed the Registrar has referred the application for leave to appeal against sentence to the Full Court. We grant leave. 3. At around 5.45 on the morning of 25 September 2018 the appellant was, in the course of his work, driving a tipper lorry on the A435 Evesham Road from the direction of the Teddington roundabout. This was a straight road with clear visibility. He intended to turn right into a Texaco petrol station via a builder's yard access road. In carrying out the manoeuvre he turned early because he was trying to cut the corner by getting in via the exit rather via the entry lane of the access road. 4. The victim, Jonathan Webley, was riding a Honda 1000 CC motorcycle coming in the other direction on the opposite carriageway. As the appellant turned into the access road he cut across the path of Mr Webley and there was a collision between the motorcycle and the lorry. A witness at the scene rushed over and tried to administer first aid to Mr Webley. The appellant called 999 and then handed the phone to the witness because he was, the witness said, completely shocked by what had happened. An ambulance arrived within 15 minutes. Mr Webley died from his injuries at the scene of the accident. 5. A victim personal statement from the widow of the deceased was read out during the opening and each member of this court has read that as well. It sets out the utterly tragic consequences that flowed from the manner of the appellant's driving on that morning. 6. The Recorder noted that the appellant was on a straight road with clear visibility. He intended to turn right into a petrol station, a manoeuvre he told the police he had undertaken many times before. The Recorder judged that he was complacent about this manoeuvre due to his familiarity with the journey and he did not look as carefully as he should have done for oncoming traffic. The appellant said that he saw cars in the distance but did not pick up the closer presence of the smaller motorcycle. 7. In carrying out this manoeuvre he turned early because he was trying to cut a corner turning across Mr Webley's path and thus causing the collision. The appellant should have given way, which he would have done if he had looked properly to see what was coming. Mr Webley was close to him when he carried out this manoeuvre and had his headlight on. It was dark but there was street lighting from the petrol station. The appellant's view was unobstructed for a distance of over 400 metres. Mr Webley was driving in a safe manner, he was not breaking the speed limit and was not doing anything untoward. Witnesses saw his headlight was on and that he was on the correct side of the road. 8. The Recorder observed that effectively the appellant was on the wrong side of the road when the collision took place and this was because he failed to notice Mr Webley as he was coming to the point in the road into which the appellant was turning. The Recorder quoted the Highway Code rule 180 and said that the appellant did not follow that rule and Mr Webley had no chance to avoid the collision which the appellant accepted he had caused. He was driving a large and heavy vehicle. He had a prolonged and unobstructed view of road ahead in clear conditions. He turned across the path of Mr Webley's motorcycle when it was too close to Mr Webley to take effective avoiding action. 9. The Recorder commented that references had been made to the phenomenon of ‘highway hypnosis’, where a motorist might pick up on a car but not see a smaller vehicle like a motorcycle. A driver on a road he was familiar with might take less care than he would if he was on a road he did not know. Some drivers might not look carefully enough to see a bike but, whilst this provided a level of explanation for what happened, the Recorder stated that the appellant did not do anything to mitigate his lack of care in the circumstances. 10. The Recorder referred to the fact that the appellant was aged 26 and with no previous convictions. He referred to his good driving record and the many positive qualities about which the character witnesses spoke. He also mentioned how the appellant stayed at the scene and called the emergency services although he was not in a fit state to provide help. The Recorder identified that these matters allowed him to afford what he described as a "small" amount of credit in respect of the sentence but not much in the context of this type of case. The Recorder said that the guilty plea was the principal mitigation and that from reading the pre-sentence report and references the Recorder was satisfied the appellant was truly remorseful. He would be given full credit for plea. 11. The Recorder stated that in his judgment there was considerably more than just momentary intention on the appellant's part. He was driving a tipper truck across a carriageway. This was a large commercial vehicle which, in a case involving a minor accident, was a relevant feature in deciding the level of culpability. The manoeuvre was one which the Highway Code made clear required a great deal of care and attention particularly to oncoming vehicles. Mr Webley had his light on. He was driving safely. There was nothing he could have done to avoid the accident. It was of great significance that this was a long straight road where the visibility was clear over 400 yards or so with nothing to obstruct the appellant's view. 12. The Recorder stated that he had regard to the Sentencing Guideline and assessed the case fell within category 2 for the reasons mentioned. The starting point was 36 weeks' custody with a range from a high level community order to 2 years' imprisonment. The Recorder identified that the starting point he assessed as being 12 months' imprisonment, but after full credit for plea and taking into account other mitigation the sentence would be one of 7 months' imprisonment. The Recorder stated that in his view there was no reason to suspend the sentence. 13. The pre-sentence report set out that the appellant was devastated to have caused the death of the victim. The appellant expressed remorse which appeared to be genuine. He was assessed as posing a low risk of reoffending and of causing serious ham. The court was asked to consider suspending the sentence with an unpaid work requirement. 14. The grounds of appeal criticise the Recorder's application of the guideline and submit he should have placed the case within the lowest of the three brackets on the basis of "careless or inconsiderate driving arising from momentary inattention with low aggravating factors". That would have indicated a starting point of a medium community order and a range of low to high order. If the correct starting point was custody, then a length of 12 months, prior to the application of mitigation and credit for plea, is argued to be too high. Further, it is submitted that even if 7 months was justified the sentence should have been suspended. 15. On behalf of the appellant Mr Rogers, in clear and helpful submissions today, has sought to advance those arguments albeit focussing principally on the issue of whether the term should have been suspended. 16. Discussion We do not accept that the Recorder was wrong to place the offence within the middle category of the guideline. The approaching motor bike was there to be seen and should have been seen by the appellant. The appellant was carrying out a manoeuvre that involved cutting a corner by entering the Texaco filling station via an exit. It would appear that this was an approach to the fuel stop commonly adopted by HGVs using that particular garage, but it would not necessarily have been anticipated by the deceased, who was a careful rider and one who habitually exercised caution as to potential hazards ahead of him on the road. Sadly, Mr Webley had no chance of avoiding the appellant's lorry. Furthermore, this unsafe manoeuvre was performed by the driver of a large vehicle which is inherently more likely to cause damage if driven unsafely. Careless driving of a large vehicle is more serious not only because it is more likely to cause serious injury but also because, in circumstances such as these, it blocks the carriageway for longer and therefore makes a collision inevitable. A particularly high level of care is demanded of the drivers of such vehicles - a point underlined in the case of R v Geale [2013] 2 Cr App R (S) 17, an authority to which we shall return on the issue of disqualification. 17. Accordingly, whilst some judges may not have moved up from the starting point of 36 weeks to the extent of this Recorder and, further, the weight to be afforded to the mitigating factors could have been greater, equally the Recorder was arguably over generous in his assessment of the level of credit for plea given that there was no indication of a plea of guilty at the stage that the case was sent to the Crown Court. In our judgment, looked at in the round, the term of 7 months' custody cannot be assessed as being manifestly excessive. 18. There is however the question of whether the Recorder should have suspended that sentence. In that regard the Recorder made no reference to the Imposition Guideline, simply stating that in his view that there was "no reason to suspend the sentence". It has been confirmed this morning that mention was made of the Definitive Guideline on the Imposition of Community and Custodial Sentences in the course of mitigation. With all due respect to this experienced Recorder the decision as to whether the sentence might have been suspended or not called for greater explanation than that which the Recorder provided. 19. Of the factors that the guideline identifies as indicating it would not be appropriate to suspend the sentence, two of the three were absent. The appellant does not present a risk of harm to the public and there is no history of noncompliance with court orders. The only factor that is potentially present is the one that refers to the appropriate punishment only being capable of being achieved by immediate custody. Two of the factors point in favour of suspension that are referred to in the guideline were present, namely a realistic prospect of rehabilitation and strong personal mitigation. We note in particular the content of the letter written by the appellant's father. 20. In the case of R v Wilkinson [2019] EWCA Crim 702 , this court reviewed a number of authorities involving causing death by careless driving and emphasised the importance that may attach to a plea of guilty when deciding whether a custodial sentence should be suspended or not. The court identified that a guilty plea and early expression of remorse was something that may militate in favour of the custodial term properly being suspended. 21. Given the absence of explanation by the Recorder as to the factors that led him to reject the option of suspending the sentence we have had to address that issue ourselves. We have concluded that in all the circumstances of this case it was not necessary for an immediate sentence of imprisonment to be imposed. Balancing the nature of the driving and the terrible consequences arising therefrom, as against the immediate deep remorse, the guilty plea entered at the PTPH, the appellant's exemplary character and previously blameless driving record, leads us to the view that the sentence of 7 months' imprisonment should be suspended. 22. We have considered whether that should be combined with an appropriate community order but in the context of the appellant having served 44 days in custody already, we do not think that is a right step to take. 23. So far as disqualification is concerned, there are two elements in respect of that which need to be addressed. When passing sentence the Recorder imposed a disqualification for 2 years and also imposed a requirement for the appellant to take an extended re-test. This offence carries with it a compulsory 12-month disqualification but the imposition of an extended re-test is at the discretion of the sentencer. The Recorder did not identify the reason why he considered an extended re-test was appropriate. 24. In the case of Geale (supra), this court held that the main purpose of disqualification was to protect the public from the risk posed by an offender driving, and that where the risk was very low, a lengthy period of disqualification might be inappropriate particularly if the offender was dependent on driving for his livelihood. However, the court also recognised an element of punishment may be involved in the disqualification signified by the fact that the 12-month minimum period of disqualification is obligatory. Therefore, when considering whether the length of the period of disqualification is manifestly excessive the court must consider it in the context of the sentence imposed and the ancillary orders as a whole. 25. Although cases of this tragic nature are inevitably fact specific, it is perhaps worth noting that in Geale the period of disqualification for a professional coach driver with an otherwise exemplary driving record, was reduced from 3 years to 2 years, where the nature of the offender's driving went beyond momentary inattention and involved an inherently unsafe manoeuvre caused or compounded by distraction by another vehicle travelling ahead in the same lane. We consider that in this case the Recorder was correct in his assessment of the length disqualification and that the period of 2 years correctly reflects the circumstances of this offence and the offender. 26. In R v Tombs [2019] EWCA Crim 1100 however, this court addressed the issue of the imposition of an extended re-test and concluded that, in not wholly dissimilar circumstances, there was no justification for such to be ordered where an extended re-test was not going to increase the level of public safety. The Recorder here gave no indication as to why he considered an extended re-test a necessary feature of the sentencing exercise in the case of this appellant and we can divine none ourselves. 27. The disqualification imposed in fact failed to comply with the requirements of section 35A of the Road Traffic Offenders Act 1968 and was not expressed as it should have been in accordance with the guidance provided by this court in R v Needham [2016] EWCA Crim 455 . It would seem that some time later on the day of the sentence the prosecutor realised that the Recorder had failed to impose the necessary three-and-a-half month extension to the period of disqualification as the legislation, enacted as it was to prevent offenders serving some or all of the period of disqualification whilst in custody, required. The prosecution contacted the court inviting the Recorder to make that adjustment administratively but at the same time suggesting when so doing the Recorder should take account of the period during which the appellant had been subject to an interim disqualification. The Recorder acceded to that request with the result that the court amended its "Notice of Order for Endorsement" sent to the DVLA so as to state that the appellant was disqualified for 2 years, 3 months and 15 days. 28. The court and the Recorder should not have proceeded in this way. By reason of Criminal Procedure Rule 28.4(2B) and (4) the variation, amounting to an increase in sentence, should have been dealt with in open court and with the appellant on notice of the proposed adjustment. The alteration that the Recorder purported to make administratively was of no effect and the sentence in fact remains as pronounced in open court. Further, there was no need to make any order in respect of the interim disqualification as that is accounted for automatically. If we had not concluded that the sentence in this case should have been suspended then the purported change, intended to bring the imposition of the disqualification into line with the legislation and Needham, would have been ineffective and the situation would be as pertained in the conjoined appeal of Aitken as explained at paragraph 129 of the judgment in Needham . Because however we have concluded that the sentence of imprisonment should in fact be suspended the period of disqualification that the Recorder announced in open court can stand, i.e. the appellant is disqualified for 2 years but, for the reason already given, he will not be required to take an extended re-test at the conclusion of that period before being permitted to resume driving. The 3-week period between plea and sentence during which the appellant was subject to an interim disqualification is deducted automatically and does not have to be reflected in the court order. The court record and the DVLA records will have to be amended accordingly. 29. The result of the appeal therefore is the sentence imposed in the court below are quashed and substituted with a sentence of 7 months' imprisonment for 12 months. The disqualification is for the period of 2 years but absent the extended re-test requirement that the Recorder imposed. 30. HIS HONOUR JUDGE PICTON: Mr Evans, that means you will be released. You are subject to a suspended sentence. If you commit any offence during the period of that suspended sentence, you will be liable to serve some or all of that period in custody less of course the 44 days you have spent in custody already. Do you understand that? 31. THE APPELLANT: I do. Thank you very much. 32. MR ROGERS: May I just clarify the period of suspension of the sentence? 33. HIS HONOUR JUDGE PICTON: Seven months suspended for 12 months. 34. MR ROGERS: No order for the re-test. 35. HIS HONOUR JUDGE PICTON: No. 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_12_17-4793.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/2358/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/2358

0f6a03f3157de05a0c405d580092e70dd75f58882fa7be2462aefbe07312714c

[2009] EWCA Crim 2436

EWCA_Crim_2436

crown_court

Neutral Citation Number: [2009] EWCA Crim 2436 Case No. 2008/06441/D1, 2008/06444/D1, 2008/06837/D1, 2008/00252/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 16 October 2009 B e f o r e: LORD JUSTICE MAURICE KAY MR JUSTICE SWEENEY and MRS JUSTICE SLADE DBE __________________ R E G I N A - v - ROMAN PACAN ALI ARSLAN EDWARD FACUNA MARTIN DOCI __________________ Computer Aided Transcription by Wordwave International Ltd (

Neutral Citation Number: [2009] EWCA Crim 2436 Case No. 2008/06441/D1, 2008/06444/D1, 2008/06837/D1, 2008/00252/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 16 October 2009 B e f o r e: LORD JUSTICE MAURICE KAY MR JUSTICE SWEENEY and MRS JUSTICE SLADE DBE __________________ R E G I N A - v - ROMAN PACAN ALI ARSLAN EDWARD FACUNA MARTIN DOCI __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Mr J Winship appeared on behalf of the Appellant Roman Pacan Mr S Robinson appeared on behalf of the Appellant Ali Arslan Mr P Wakerley appeared on behalf of the Appellant Edward Facuna Mrs T Ossack appeared on behalf the Appellant Martin Doci Miss A Morgan appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE MAURICE KAY: 1. The appellants are Roman Pacan (aged 39), Edward Facuna (aged 55), Martin Doci (aged 30), and Ali Arslan (aged 44). On 3 November 2008, after a trial in the Crown Court at Southwark, they were convicted of various offences for which they were sentenced on the following day. The offences arose out of the sexual exploitation of two young women who were forced to work as prostitutes. Pacan was convicted of trafficking a girl called Martina into the United Kingdom for sexual exploitation. He was sentenced to eleven years' imprisonment. Facuna was convicted of the same offence and received the same sentence. Doci was convicted of trafficking Martina within the United Kingdom for sexual exploitation. He, too, received a sentence of eleven years' imprisonment. Arslan had pleaded guilty to two offences of keeping a brothel for prostitution, for each of which he received sentences of four years' imprisonment. He was convicted by the jury of three other offences as follows: controlling a young woman called Raza as a prostitute for gain, for which he received five years' imprisonment; trafficking Martina within the United Kingdom for sexual exploitation, for which he received a consecutive sentence of nine years' imprisonment; and controlling Martina as a child prostitute, for which he received a concurrent term of five years' imprisonment. The total sentence in his case was therefore one of fourteen years' imprisonment. In relation to all appellants appropriate orders were made that time spent on remand should count towards sentence. 2. Two other men were convicted by the jury. Mesut Arslan (who is the nephew of Ali Arslan) was convicted of controlling a child prostitute and of keeping a brothel. He received a total sentence of 30 months' imprisonment. Valmir Gjejta was convicted of controlling prostitution and was sentenced to three years' imprisonment. 3. The four appellants now appeal against their sentences by leave of the single judge, who observed that the grounds of appeal were put in the form of an inappropriate departure from guidelines promulgated by the Sentencing Guidelines Council. It was for that reason that he gave leave. 4. The facts of the case are extremely serious. Of the two young women in question, the first to come to this country was Raza. Only Ali Arslan was convicted of offences in relation to her. She was from Lithuania and aged 22 years when she came here in early 2005. Her travel had been facilitated by a Lithuanian man who proceeded to take her passport from her. In London she was met by a number of men who sold her to some Albanian men. They forced her to work as a prostitute to pay back the money that had been spent on her travel. Half of her earnings were to go to Arslan. She was warned that if she escaped she would be found. At the time Arslan was running a brothel in East London. It was there that Raza was taken three or four days after her arrival in this country. There were ten other women, of different nationalities, working as prostitutes in the brothel. Raza was forced to work five days a week. She was subsequently bought by another Albanian man but continued to work from the brothel run by Arslan. On 24 April 2005 she managed to escape and made her way to a police station. 5. The case for the prosecution against Arslan thus far was that he had controlled prostitutes from the brothel in East London and that he had known that Raza had been trafficked into the United Kingdom to work as a prostitute in his brothel. 6. A point came when Arslan ceased to carry out his activities from the brothel in East London. He set up another brothel in Luton. It was to that brothel that Martina was eventually taken and forced to work as a prostitute. She was only 16 years of age. She had been trafficked into the United Kingdom by Pacan and Facuna. They had collected her by car from her home town in Slovakia in September 2006. There was another young woman named Zofia in the car, but she did not found the basis of any of the counts on the indictment. Martina was told that she would work in a public house in Peterborough. After she had been in this country for about a week, she was sold to an Albanian man known as Claude, who had an accomplice called Kevin. They forced her to work as a prostitute. She was threatened by Claude about going to the police and she was regularly beaten and raped. Eventually she was taken to Arslan's brothel, where ten or fifteen other girls worked. She was taken there by Doci. He had been present on the occasion when Claude and Kevin had bought Martina. He was also present when Martina was taken into the brothel in Luton. For the first two weeks of her stay in that brothel she was controlled by Doci; but after that he sold her to Ali Arslan. Throughout that period she stayed in the brothel because she had nowhere to go. 7. Although Zofia (the other girl who had travelled from Slovakia) did not feature at the brothel, she was present on the occasion when Martina was sold to Claude at a car park in Peterborough. Doci was also present, and it was he who drove her away afterwards. 8. Mesut Arslan worked in his uncle's brothel in Luton. He was convicted of the offences to which we have referred. In due course, in passing sentence upon him, the judge observed that he was essentially the instrument of his uncle and bore less responsibility for what had taken place than did any of the other defendants. 9. Pacan had previous convictions in the Czech Republic, including one in 1997 for persistently soliciting a woman (or women) for prostitution. The other appellants either had no previous convictions or no relevant convictions. 10. When the judge came to pass sentence he began by saying that he had considered the definitive guidelines for these offences published by the Sentencing Guidelines Council. It is plain from both his early and indeed later remarks in the course of passing sentence that he was concerned that the sentences he was about to pass might be seen as stepping outside the guidelines. He said that there were particular features in respect of these offences which justified such a departure. He made a number of general observations about these offences which he described as "despicable" and "not to be tolerated in a civilised society". He described the several defendants as having each played a role in a degrading activity that produces untold misery. He added: "Human trafficking where it exists exploits the impoverished, the young and the socially disadvantaged." At a later point he said: "The effect of what you collectively did in relation to Martina ...., and that to which you participated in relation to Raza ...., Ali Arslan, was to leave these two young women devastated, humiliated, violated, unable to trust anyone, and turning at times to contemplating self-harm because of all that had happened to them." At a number of points the judge referred specifically to the age and vulnerability of Martina. 11. The judge dealt individually with each of the appellants. He dealt with Pacan and Facuna together, having come to the conclusion that he should draw no distinction between them for sentencing purposes. No point is taken about that on these appeals. Of Pacan and Facuna he said: "Neither of you get credit for a plea of guilty. The aggravating features in your case are obvious. This child was tricked and exploited by you and you knew full well what would happen to her, as indeed did happen to her when you handed her over to Claude. You are not much .... removed in terms of responsibility from Claude or Kevin, were they to be in the dock standing beside you." The judge repeatedly referred to their involvement at an early stage and to their awareness of what was going on. 12. Turning to Doci, the judge said that he saw little to distinguish Doci from Pacan and Facuna. He added: ".... you are just slightly further down the line than an inevitable chain of consequence as far as Martina was concerned. Although in your case you not only trafficked her but for a while were involved in controlling her activities as a prostitute. In your case you were clearly involved at an early stage in what was happening to Martina; you were at that meeting in the car park and you, I am quite sure, were aware of what was going on. .... in due course when you met up again with Claude and Kevin in Luton, I am quite sure you will have known what had been happening to Martina in the meantime and why it was with confidence you would be able to take her to Mellows [the brothel] and to hand her over there to Ali Arslan for her there to work as a prostitute. You were party to this dreadful chain of events which involved her terrible exploitation. You are as cynical, as callous and contemptible as the rest of those involved in her trafficking. .... you like the others have shown no remorse." 13. Finally, the judge dealt separately with Ali Arslan's involvement in relation to Raza and in relation to Martina. As regards Raza, he said: ".... you knew full well that Raza had been trafficked. I am quite sure that you knew that she was being coerced into working at your brothel where you were prepared to take her on as one of the many prostitutes you were there controlling." A little later he said: "It is said in mitigation that you did not coerce or force anyone working in either of the brothels with which this case and you are concerned, but the fact in my judgment is that others had already done for you that work. Those with whom you were willingly doing business had done and were continuing to do the coercion and forcing someone such as Raza to work in an establishment such as yours, you paying half of that which Raza earned from the activity that she was being made to do, and you keeping the rest of that money for yourself. You stand in my judgment as far as Raza is concerned not much lower in terms of responsibility for what happened to her, beyond those that actually trafficked her. They trafficked her knowing that you would take her on, as you did, until she managed to escape." Of events in Luton, the judge said: "You then .... set up Mellows quite purposefully as a brothel, and word no doubt went around again to those trafficking women as to where Ali Arslan was, and where men who would engage in the trafficking of women could take those women. It seems to me no coincidence that those who were involved in trafficking Martina .... had connections to Mellows, and it was to Mellows that she was brought." The judge went on to emphasise the age of Martina. He observed that everyone was aware of her age; indeed, she had told Arslan exactly how old she was. She had not been a willing participant in what had been happening to her since her arrival in this country. Again on the subject of coercion, the judge said: "It is said there was no coercion; that there was nothing expressed or opened in that respect, I accept, but the atmosphere of expectation I am sure was perfectly clear to Martina, who I am sure, and have no doubt, was in terrible fear of what would happen if she did not co-operate; then barely able to speak English in a strange country with no one to turn to, no one to trust, and indeed at that stage, in my judgment, with no idea where she actually was. What happened to [her] is a terrible story of betrayal ...." A little later he said: "You were not directly cruel, you did not directly coerce, but as I have said, the expectation was clear that if she did not co-operate, an expectation set upon her already by others, I have little doubt as to what probably would have happened. .... .... My conclusion is that no compassion exists on your part. You are a callous man and your pretence at compassion I treat as mere humbug. .... Each of [the two brothels] were sizeable operations; 15 to 17 girls working a day, most days of the year at Mellows making you quite obviously tidy profits to fund, on the limited evidence in the trial, a smart car, living in London and trips to nightclubs. It is .... that the destination for Raza and for Martina, both tricked and trafficked into prostitution, was to establishments that you controlled." When he passed sentence, the judge stated that he had reduced the sentence for the trafficking offence to take into account totality. 14. We turn to the grounds of appeal. We begin with the point sought to be made about the Sentencing Guidelines Council's definitive guidelines. It is well-known that, by section 172 of the Criminal Justice Act 2003 , in sentencing an offender every court must have regard to any guidelines which are relevant to the offender's case. "Guidelines" there means sentencing guidelines issued by the Council under section 170 as definitive guidelines. The definitive guidelines on the Sexual Offences Act 2003 were published in April 2007. So far as trafficking for sexual exploitation is concerned, they cover the offences under sections 57, 58 and 59 of the Sexual Offences Act. It is pertinent to observe that in prescribing guidelines, they draw no distinction between trafficking into, trafficking within, and trafficking out of the United Kingdom for sexual exploitation. The maximum penalty for all these offences is one of fourteen years. In a box set out on page 131, the guidelines identify the more serious of two forms of trafficking as trafficking with an involvement at any level, in any stage of the trafficking operation "where the victim was coerced". The starting point is then set as six years, with a sentencing range from four to nine years. A specific cross-reference is made to cases where the victim is under 13 years of age, but, more generally, a list of thirteen aggravating and three mitigating factors (referred to as "additional aggravating and mitigating factors") are there set out. They include, as aggravating features, deception and the use of force, threats of force or other forms of coercion. In the text preceding those stated guidelines, there is an uncontroversial description of the seriousness of this type of offence. The following two sub-paragraphs are relevant: "4. The degree of coercion used and the level of control over the trafficked person's liberty will be relevant to assessing the seriousness of the offender's behaviour. The nature of the sexual exploitation to which the victim is exposed will also be relevant, as will the victim's age and vulnerability. .... 8. The starting point for sentencing for trafficking for sexual exploitation should be a custodial sentence. Aggravating factors such as participation in a large-scale commercial enterprise involving a high degree of planning, organisation or sophistication, financial or other gain, and the coercion and vulnerability of victims should move sentences towards the maximum 14 years." 15. When the judge passed sentence, he commented that he had also had regard to decisions of this court from the period prior to the promulgation of the definitive guidelines. He found them difficult to reconcile as between themselves. We are not entirely surprised. Suffice it to say that the authorities in question were not judicial guideline cases, but cases on their individual facts. 16. The judge was correct to consider and to have regard to the guidelines. We understand why he felt uncomfortable about his conclusion when set against the Council's guidelines. As we see it, there is a degree of ambiguity in the way the guidelines are set out. Thus, for example, the bracket for which six years' custody is the prescribed starting point assumes coercion. However, coercion then appears as a potential additional aggravating factor, and indeed appears in paragraph 8 as one of a number of factors, including vulnerability and, by implication, age of victims, which "should move sentences towards the maximum 14 years". Age is not referred to in the specification of a starting point of six years. Nor is it mentioned as an additional aggravating factor in the table immediately below. But it is referred to, and must have been considered relevant, on the page of text preceding it. There is similar ambiguity as to vulnerability. For these reasons we understand why the judge felt that he might have been going outside the guidelines, although he was satisfied that he was justified in so doing. 17. In this case the judge took account of the age and vulnerability of the victims which, when coupled with the other factors including coercion, significantly aggravated the case beyond the starting point and indeed above the range set out in the guideline. It cannot be suggested that sentences above nine years can never be passed. After all, the Sentencing Guidelines Council does not purport to create a new and reduced maximum for the offence with which it is dealing. In our view, the approach of the judge was entirely consistent with paragraph 8 of the text. We have come to the conclusion that he did not act outwith the guidelines. He merely struggled with the element of ambiguity which we believe exists within them and produced a result which we find to be susceptible to accommodation within them. In our judgment his approach in that regard cannot be faulted. 18. We turn to the individual appellants, save that we deal with Pacan and Facuna together because the judge did and their respective counsel do not take exception to that (at least as a starting point). It is submitted on their behalf that they treated Martina in a relatively kindly way. Of course they did. It was their task to win her confidence after they had deceived her as to her ultimate fate in this country. They brought a 16 year old girl here in order to plunge her into sex slavery. They knew what would befall her at Claude's hands. She was brutalised into submission. That is the basis upon which the judge approached the case. He had heard and seen the evidence. We respect the conclusion to which he came. Given that conclusion, with which we agree, in our judgment the sentences of eleven years' imprisonment cannot be said to be manifestly excessive. The appeals of Pacan and Facuna are therefore dismissed. 19. The same point arises in the case of Doci about the Sentencing Guidelines Council. The submissions made today on his behalf in our view consistently understate his involvement. Although the offence of which he was convicted was trafficking within and not into the United Kingdom, we have already observed that the maximum sentence for both those offences is the same, and indeed the Sentencing Guidelines Council does not distinguish between them. Doci was deeply involved at the point where Martina passed from Pacan and Facuna to Claude, and when later she moved into Mellows. They knew what had happened to her in the meantime. In Mellows Doci initially controlled her as a child prostitute before selling her on. Again, we view his case with the utmost seriousness. We respect the view formed by the trial judge as to his role and his relationship with the other defendants and as to his position in the chain relative to them. In those circumstances we conclude that in his case the sentence of eleven years' imprisonment was not manifestly excessive; nor was the concurrent sentence for controlling a child prostitute manifestly excessive. A further point is sought to be made on his behalf, namely that it is suggested that there is disparity between his sentence and that passed upon Mesut Arslan. We reject that submission. The judge came to a clear view about their respective responsibility and was convinced that Mesut Arslan was acting essentially as the instrument of his uncle. 20. Finally, we return to Ali Arslan. His conviction on count 5 (trafficking Martina within the United Kingdom for sexual exploitation) means that he was involved in the trafficking of Martina, that is to say in arranging and facilitating her travel within the United Kingdom, intending to cause her to become a prostitute. This is not simply a case of a brothel keeper upon whose doorstep a potential prostitute unexpectedly arrived. The judge's assessment was that Ali Arslan was a ready and willing end purchaser of young girls whom he did not personally coerce, but in respect of whom he knowingly took the benefit of the coercion to which they had already been subjected -- the cynical and ruthless brutalization that had driven them into submission. 21. Alone of the appellants, Ali Arslan's offences cover both young women. We can see no basis for disagreeing with the judge's conclusions about his role. We reject in terms the submissions of Mr Robinson that this is "just an average trafficking case". In Ali Arslan's case there was no error of principle in the judge's approach to sentencing. The issue therefore is whether a total of fourteen years' imprisonment is manifestly excessive. We are satisfied that it is not. It might have been aggregated in different ways, but we see no reason to interfere with any of any of the individual sentences. 22. Accordingly, all these appeals against sentence are dismissed. ______________________________________

2009_10_16-2127.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2436/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2436

4908b0815d2cd35fd94d68d689358a5b48cfd2d0345c78e4297cca1f3e35e483

[2009] EWCA Crim 1085

EWCA_Crim_1085

crown_court

No: 200801475/C5 Neutral Citation Number: [2009] EWCA Crim 1085 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 20th May 2009 B e f o r e : LORD JUSTICE HUGHES (VICE PRESIDENT OF THE CACD) MR JUSTICE HOLROYDE SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v PARVIZ KHAN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communicati

No: 200801475/C5 Neutral Citation Number: [2009] EWCA Crim 1085 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 20th May 2009 B e f o r e : LORD JUSTICE HUGHES (VICE PRESIDENT OF THE CACD) MR JUSTICE HOLROYDE SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v PARVIZ KHAN - - - - - - - - - - - - - - - - - - - - - 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 Wolkind QC appeared on behalf of the Applicant Mr D Atkinson appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: Parviz Khan renews his application for leave to appeal against sentence for terrorist offences. 2. He had pleaded guilty to four counts. The first, count 1, charged him with engaging in conduct with the intention to commit acts of terrorism, contrary to section 5 of the Terrorism Act 2006 . That concerned what was referred to as "the soldier plot". Count 3 charged him with a similar offence. That concerned the supply of equipment to the Pakistan/Afghanistan border. Then there were two counts (counts 4 and 5) of possession of documents or records likely to be useful to a person committing or preparing acts of terrorism. Those were offences contrary to section 58(1) (b) of the Terrorism Act 2000 . They were documents, in this case, in digital form, not unfamiliar to courts dealing with these offences. One was entitled "How do I prepare myself for Jihad" and the other was "The encyclopedia of Jihad". For those several offences the judge passed a life sentence, with a specified minimum term of 14 years. We will come, in a moment, to how that was made up. That sentence was passed following the defendant's plea of guilty. 3. The defendant was 37. He had no previous convictions. He had been under surveillance for approximately 9 months and his conversations had been monitored. His own words formed the substantial part of the evidence against him. In addition, the sentencing judge, Henriques J, had tried two other men for associated offences. He had accordingly had abundant opportunity to immerse himself in the material. 4. That material demonstrated that Khan was at the centre of a group of terrorists or would-be terrorists in Birmingham. The judge in due course described him as a man "who has the most violent and extreme Islamist views. A fanatic." The judge gave chapter and verse for the reasons for reaching that conclusion. We need say no more about it because, realistically, Mr Wolkind QC, who appears for him, accepts that the judge was entitled to come to that view. This was a man whose self-appointed role was a leadership and recruiting one. He set out to energise the others in terrorist cause. 5. The soldier plot charged in count 1 was a plot to identify and then kidnap a Muslim serving in the British Army, take him to a suitable place, behead him in front of the camera and make a film to be distributed to the news networks of the world. The object, as the defendant was heard to say, was to undermine morale in the British Forces and specifically to deter others, especially those of Muslim faith, from serving in those forces. It was also to strike a political blow at the government. 6. The substance of Mr Wolkind's succinct and well-targeted submissions is this. This was a plot which had still to identify the unfortunate victim of the design. No soldier had yet been identified. Says Mr Wolkind, that means that the sentence which has been passed is too long. That no soldier had been identified seems to be correct. That may be because the others whom Khan had tried to interest in his plot did not share his determination. But he had worked out what it was to be done. He had a plan of action. He had asked two or three others to assist him. One was a co-accused call Gassama, whom it is clear this defendant did his utmost to encourage to identify a suitable Muslim soldier from a group of men of Gambian origin who Gassama could find out about. The defendant had decided that he would need the target's identity card or identity tags in order to demonstrate to the world, through the film, who it was who had been executed in this manner. He had decided how to ensnare the soldier and how to kidnap him and he had been determined to use one of a number of garages to which he and his confederates had access as the place of execution. The transcript of the defendant's conversation with Gassama demonstrates that Gassama was speaking of having identified the home of a suitable target. Whether in fact he had done so or not does remain unclear. There was some discussion in the court below, and has been here, as to whether the defendant and Gassama spoke of the as yet unidentified target by use of a code name "Samson". So far as we can see, it really makes very little difference whether they did or did not. 7. Count 3 was a separate but still very serious activity. It covered a series of shipments to Pakistan of equipment designed for use by Al-Qaeda irregular fighters there and no doubt across the border in Afghanistan. What was sent were not weapons, but there was probably little shortage of those in that area; what was sent was equipment which would be in short supply there: range finders; battery chargers; fire accelerants that could be used in detonators; computer peripherals; flash lights; compasses; medical kits and the like. The list was a long one and the volume of material considerable. There were four shipments, the last two nearly a ton and half a ton in metric weight. The judge, who had studied the surveillance evidence and the tapes of conversation, observed, with some justice, that a very large part of the defendant's life must have been taken up in shopping and collating the equipment. In addition to that he also sent money totalling just under £8,500. 8. The appellant's written grounds challenge the question of whether a life sentence was warranted at all. But that is not the basis on which Mr Wolkind has here addressed us. It is enough to say that this case did satisfy the well-known test for the imposition of a life sentence, set out in R v Hodgson (1968) 52 Cr App R(S) 113 and subsequent cases. This defendant had committed very grave offences and he represented a risk of very grave harm for a period which could not reliably be determined. For all the reasons explained by Lord Phillips in R v Barot [2008] 1 Cr App R(S) 31, a man with this kind of fanatical determination is clearly in that category. 9. Mr Wolkind's submission is simply that the specified minimum term, based on notional determinate terms for the individual counts is too long. The judge arrived at his figure of 14 years in this way. In relation to the soldier plot (count 1) he postulated a notional determinate term of 18 years. That was after plea, so it would have been 27 or thereabouts after trial. In relation to the equipment supplied (count 3), he postulated a notional determinate term of 8 years. That would have been approximately 12 or thereabouts after trial. In relation to the possession of the Jihadist documents, he postulated a notional determinate term of two-and-a-half years, something like three-and-a-half to 4 perhaps after trial. 10. In accordance with the decision of this court in R v O'Brien [2007] 1 WLR 833 , the judge took into account the fact that there would have been consecutive sentences in relation to counts 3, 4, and 5 in arriving at his minimum term. That was correct, as is conceded. 11. In the end this case depends upon the proposition advanced by Mr Wolkind that because no specific soldier had been identified, a determinate term overall of 28 years is simply too long. We accept, of course, that it would have been more serious yet if a soldier had been identified and still more if the plot had advanced to the stage of setting out on a particular day to execute a kidnap. But this is an offence which, had it been carried out, would have called, in accordance with schedule 21 to the Criminal Justice Act, for a whole life sentence. 12. In Barot , where the plot was, of course one for mass murder, although, contrary to the defendant's view, it was rather ineffective, a specified determinate term of 30 years upon a very late plea, was imposed by this court. We are unable to say that the judge's sentence of 14 years was too long and in those circumstances, this application must be refused. 13. MR WOLKIND: May it please, my Lord. Notwithstanding the court's ruling, would you be kind enough to consider granting a representation order to cover my appearance and preparation? You do have that power and it would have the attractive effect of putting us on an equal footing with Mr Atkinson who appears instructed and funded by the Crown Prosecution Service. Other nice courts have done so in this situation and I invite you please to consider. 14. LORD JUSTICE HUGHES: It would be entirely contrary to the usual practice of this court, would it not? 15. MR WOLKIND: Actually, the first time it happened I was surprised. There was a group of lost co-defending counsel who got up and asked and the court said they could and I learnt from that. 16. LORD JUSTICE HUGHES: It is always worth asking. 17. MR WOLKIND: I did not take a note of the details. I do not think it was my Lord. 18. LORD JUSTICE HUGHES: No, it probably was not I am afraid. 19. MR WOLKIND: I have seen it on one other occasion. I wondered if the slight difference might be that my opponent comes here fully instructed. It is a bit odd in a way. 20. LORD JUSTICE HUGHES: That has been occasioned by the application. We understand it and it is very charmingly put. 21. MR WOLKIND: Keep it as an exception. (Pause) 22. LORD JUSTICE HUGHES: I am afraid not, Mr Wolkind. Thank you very much indeed for your help though.

2009_05_20-1948.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1085/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1085

41f4889bab3b8552ce82a93b2698042dffe30a41a4017e1118605e68353ae529

[2005] EWCA Crim 2941

EWCA_Crim_2941

crown_court

No: 04/7209/C3 Neutral Citation Number: [2005] EWCA Crim 2941 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 27 October 2005 B E F O R E: LORD JUSTICE LONGMORE MR JUSTICE POOLE RECORDER OF WINCHESTER HIS HONOUR JUDGE BRODRICK - - - - - - - R E G I N A -v- PAUL A - - - - - - - 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

No: 04/7209/C3 Neutral Citation Number: [2005] EWCA Crim 2941 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 27 October 2005 B E F O R E: LORD JUSTICE LONGMORE MR JUSTICE POOLE RECORDER OF WINCHESTER HIS HONOUR JUDGE BRODRICK - - - - - - - R E G I N A -v- PAUL A - - - - - - - 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 ANDREW COLMAN appeared on behalf of the APPELLANT MR J CHARLES KELLETT appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE POOLE: On 30th November 2004 in the Crown Court at Ipswich before His Honour Judge Thompson the appellant was convicted of three counts of indecent assault, all by a majority of ten to two, and was sentenced to two years' imprisonment concurrent on each count. He was acquitted of two counts of rape on counts 4 and 5. He now appeals against these convictions by leave of the single judge. 2. The brief facts were these. The trial involved allegations of sexual assault between 1975 and 1985, that is to say between about 19 and 29 years before trial. The assaults were said to have been committed on the appellant's stepdaughter, W. By the time of the trial she was aged 35 and he was 60. 3. She first complained to the Gosport police on 11th August 2003 saying that she had been indecently assaulted, which, the defence pointed out, was inconsistent with her later version that she had been both assaulted and raped on a number of occasions. The prosecution case depended ultimately upon the evidence of the complainant alone. The defence case was complete denial. The complainant, it was submitted, had invented the allegations, and inconsistencies in the Crown Court were relied upon. 4. The issue for the jury was therefore the credibility of the witnesses, in particular of course the appellant and complainant, on whom the entire case turned. 5. The complainant gave evidence from behind a screen and said that she had hated the appellant before he did anything to her. He was a Jekyll and Hyde character, a disciplinarian who would use his slipper from time to time to chastise the children. They were all scared of them all of the time. 6. The abuse, she said, had started in 1975. At the end of 1976 she had gone to live with her natural father for about a year and then to her grandmother's for a couple of months before returning to her mother's home, at which point the abuse started again. She would wake up, she said, to find the appellant touching her all over. He offered to buy her gifts. Her mother was unaware at first, she said, of what was going on. She, the mother, would often drink and fall asleep on the sofa downstairs. 7. Sometime after January 1980 the complainant went to a boarding school while the appellant and his wife went to live in Germany. However, she spent holidays there with them and woke one night to find the appellant in her room, where he got on top of her and rubbed himself up and down until he ejaculated. One year, possibly 1982, the family had holidayed in Spain when the appellant took the complainant for a walk and made her masturbate him. These two incidents abroad were not the subject of any counts on the indictment, occurring, as they did, outside the jurisdiction, but were treated as evidence in support of a continuing course of conduct. 8. By the time she was 16 the complainant was living back at home and the family had moved to Suffolk. There, she said, the abuse continued. Eventually in September 1985, she went to live with her natural father and stepmother, a lady called Patricia, telling them that she hated the appellant. In that house she shared a room with her stepsister Karen whom she eventually told about the abuse. Karen told her mother, and the complainant said they went to a Wimpey bar and talked about the abuse, all three of them together, though not in detail. After that her stepmother took her to see a Dr McNutt. He advised the stepmother not to take her to the police to report the abuse because she would not have been able to deal with it. 9. Turning to the individual counts, count 1 was an incident which was said to have occurred when the complainant was 7. One night at the weekend the complainant woke up to find the appellant in bed with her. He held her down and kissed her all over, before leaving. She thought her mother was downstairs but did not call out or tell anybody because she was too scared. That type of incident happened again some weeks later. Such assaults always occurred after the appellant and his wife had argued. At first the appellant said nothing, but then he told the complainant that he knew that what he was doing was wrong and would go to prison for it, which would kill her mother. 10. Count 2 related to digital penetration of the vagina in similar circumstances. 11. Count 3 was a specimen count reflecting repetition of conduct similar to that in counts 1 and 2 up to a total of some 50 times. 12. Count 4 was a count in which she claimed that shortly before her 16th birthday the appellant raped her in her bedroom while her mother slept downstairs. After the rape she had washed and left the house and had called the Samaritans from a nearby phone box. But they just came and picked her up and took her back home again. On her return, in response to her mother's questions of where she had been, she said that she had simply been to make sure that a friend who had been kicked out of her home was all right. But later that day she told her mother what was happening and was disbelieved. Her mother denied that when she, the mother, came to give evidence. 13. Count 5 was a specimen count representing some nine or ten rapes of the complainant said to have taken place when she was 16, in her room and during the night. 14. In cross-examination the complainant agreed that her brothers, who frequently shared a room with her when the indecent assaults took place, had never noticed anything and that her mother would have been within earshot had she cried out. There was an occasion, she said, when the appellant had assaulted her and her mother had come into the room, looked at her and touched her between the legs as if she knew what had been happening but said nothing. The next day, on finding blood in her knickers, she had told her mother what was happening but the latter had just laughed it off. So it was a feature of the case that the Crown were saying in effect that the mother was complicit in what was going on or in at least a part of what was going on. 15. She accepted when asked about the Samaritans taking her home, that when interviewed by the police she had told them that she had simply sneaked back into the house and explained that it was only later that she remembered the conversation with her mother that day. 16. Patricia, her stepmother, gave evidence and was cross-examined. She said that when she had first met the complainant aged 6 or 7 she was a shy girl. Then when she was 15 or 16 her own daughter Karen had told her that the complainant had complained of abuse by her stepfather so she had taken the complainant to see a doctor. 17. Karen, the stepsister, gave evidence of the conversation when the complainant had told her she was being abused. They shared a bedroom, and eventually the complaint was made. 18. In cross-examination she was challenged about inconsistencies between her evidence and her witness statements, and said that she could not remember precisely what had been said in each conversation. 19. A Detective Constable Little produced the interviews with the appellant. These had taken place at first on 17th February 2004. He said that he was being treated like a wicked stepfather; the children used to complain to the neighbours about being deprived of sweets and being undernourished. He denied all the allegations and said that he had a strong sexual relationship with his wife. He had tried to encourage good manners amongst the children and had never laid a hand on them. Furthermore, he said the walls of the house were thin and everything would have been heard through them. There was no insulation in the floors. He did not know why the allegations were being made. The first allegation had been made seventeen or eighteen years earlier and had come to him via Karen and the stepmother and then his wife. He had felt embarrassed at the time, worrying that mud sticks even though it was not true. 20. The defendant gave evidence at the trial which mirrored the account he had given in his police interview. He accepted in cross-examination that he was a disciplinarian but denied generating fear in the children. They seemed to be good normal children and the complainant had not seemed like a liar. He thought that she had always believed that he was the cause of the break-up between her parents, though she had never voiced that opinion. He denied that his wife had ever slept downstairs after arguments. 21. His wife, Pauline, gave evidence about the setup in the family home. In the children's bedroom there was a single bed and bunk beds almost abutting each other so that the heads of the two boys were near W's head. The walls were thin. It was possible from downstairs to hear beds creaking upstairs and yet she had never been aware of any indecent assaults. She confirmed that she and the appellant had an affectionate relationship and denied that she had been in the habit of drinking heavily and sleeping downstairs. She denied ever touching the complainant between the legs. She agreed that she had once found the appellant sitting on the complainant's bed. He had then come upstairs after going down but nothing had happened and she had not touched the complainant between the legs. When she had been told of the allegations by her sister-in-law she had confronted the appellant, who had emphatically denied them. 22. In cross-examination she denied knowing what was happening but just closing her mind to it. She denied that the complainant had ever told her that the appellant was a sexual pervert. 23. Two character witnesses gave evidence; one of them in person, the other in writing. 24. A ruling was required from the judge on an application by defence counsel to discharge the jury. What had happened was this. During Crown's counsel examination of the complainant, right at the beginning of the trial, she (the complainant) made allegations of domestic violence by the appellant against his wife, who was later in the trial to give evidence on his behalf. The passage went like this. She was asked by Mr Kellett, prosecuting: "Q. What about things between Paul and your mother? A. He used to hit her a lot. Q. And would you be aware of this? Would you hear it, or what? A. We would hear it; it was mostly on a night, a lot of the time when they'd been drinking and we'd often see the bruises and hear her screaming and shouting. Q. Would this be during the day time or the evening, after you had gone to bed, or what? A. Usually of the evening when we were in bed." So evidence had now been given of frequent violence visited upon the mother by the appellant, resulting frequently, it was said, in her screams and in bruises that were visible afterwards. 25. Defence counsel submitted, unsurprisingly, that this material was inadmissible and prejudicial, and applied for the discharge of the jury. The learned judge, however, ruled that, although there was a degree of prejudice to the appellant, the allegations were outside the nature of the indictment and were minor compared to the issues before the court. The jury would be reminded of that in the summing-up and would not be discharged. 26. There were further defence submissions later, to the effect that there was no safe case for the jury to consider. They were in these terms: that in light of the evidence that had emerged, the case could not safely be left to the jury. Counsel cited R v Selwyn B and R v Smolinsky , to which we shall return, in relation to delay. 27. The complainant, it was submitted, had given extraordinary evidence about the way in which the Samaritans had dealt with her call to them; and the veracity of this evidence could not, after so long a time, be checked. The complainant's evidence about complaining to her mother could not be easily denied by the defence because of the evidence before the court about the domestic violence alleged to have been perpetrated on the mother by the appellant. Dr McNutt had been traced but could not recall anything, and there was no medical evidence. The evidence of the stepsister and stepmother was not corroboration in the strict sense, and the evidence of distress was not proximate in time to the allegations. The reports from the Hampshire and Suffolk police were inadequate and imprecise. The places where the assaults were said to have taken place could no longer be viewed due to passage of time; and the appellant's mother, who may have been able to give evidence for him, particularly in relation to the incident in Germany, was dead. 28. The Crown submitted that although the matter had to be kept under review, the close of the prosecution case was not the appropriate time for the matter to be considered and that this was not such a different and difficult case as to fall within the exceptional category defined by the Court of Appeal in Selwyn B and Smolinsky . The judge ruled that he accepted that the Court of Appeal had shown grave concern over cases of this kind and that the case required careful scrutiny. However, the case of Smolinsky was very different in terms of its facts from the instant case. Bearing in mind the test that the learned judge had to apply, that is the test of fairness to the appellant, he did not find that it would be right to stop the trial at that stage. The matter was revisited at the conclusion of the evidence. But the judge ruled again that the defence evidence heard since the last application had not changed his opinion: the decision was one for the jury. In the course of his directions the judge gave a direction to the jury urging them to put the issue of domestic violence between the appellant and his wife out of their minds. 29. In grounds of appeal settled by counsel and developed by him before us today, it is submitted that the convictions are unsafe for the following reasons: first, the delay of nineteen to 29 years between offences and trial in a case where the defence was one of complete denial; secondly, the prejudice occasioned to the appellant by the unavailability of medical and Social Services records; third, the prejudice occasioned by the inability to trace potential defence witnesses from the Samaritans; fourth, the prejudice occasioned by the impossibility of viewing the scene of the alleged offences; fifth, prejudice occasioned by the death of the mother; sixth, the failure of the Hampshire and Suffolk police forces to keep adequate records; seventh, the failure of the judge to discharge the jury after hearing the inadmissible evidence of violence; eighth, his failure to direct the jury adequately on the impact of delay on the formulation and conduct of the appellant's defence; ninth, his failure to direct the jury that any previous consistent statement by the complainant could not be taken as evidence of the truth of its contents; tenth, the acquittal of the appellant by the jury on counts 4 and 5 of the indictment, which depended, as did counts 1-3, on the uncorroborated evidence of the complainant whose credibility was in issue. 30. Counsel has developed those grounds in this way. First, the complainant's statement included allegations that the appellant used violence against his wife. This evidence was omitted from the prosecution opening by agreement as being inadmissible because of its irrelevance and prejudicial effect. Unfortunately the complainant was not told to make no mention of those matters, so she began to give evidence about them. The prosecution, to counsel's surprise, as Mr Colman puts it, seemed to be pursuing the subject, and the jury began to hear of the allegations before objection could be raised. In fairness to Mr Kellett, it is not the impression of this court that he was deliberately pursuing this subject; and we accept from him his explanation that he was as much taken by surprise as anybody else. 31. An application to discharge the jury followed but was refused. No further mention of domestic violence was made in the course of the evidence. The defendant and his wife both gave evidence. However, they were constrained from denying violence because the appellant had admitted, in a passage which had been excised from his interview for its irrelevance, to having slapped his wife on one occasion following an argument, and denials of violence would necessarily have reintroduced that evidence. 32. Mrs A was the only witness as to fact other than the defendant himself called by the defence. The fact that the jury improperly heard allegations that she had been subjected to violence by the defendant was, it is argued, likely to undermine the value of her evidence on his behalf. Counsel concedes that the learned judge in his summing-up told the jury to disregard the evidence regarding domestic violence and concedes that if this were the only complaint that could be made against Mr Anderson's convictions he would think it insufficient to mount a successful appeal. But, he goes on to argue, it must be viewed in the context of the case as a whole. 33. Counsel for the appellant then draws our attention to the following: the application to withdraw the case from the jury was based on the authorities of R v B [2003] 2 Cr App R 197 and R v Smolinsky [2004] 2 Cr App R 661 . The court was not referred to the case of R v Terence E [2004] 2 Cr App R 621 as that only came to counsel's notice after the trial. Although, counsel submits, there is on the face of it a degree of conflict between these authorities, this is no more than an illustration of the obvious truth that where the Court of Appeal is considering whether a conviction is safe, each case must be decided on its own facts. In Smolinsky the Court of Appeal indicated that if there was an appeal in which evidence was given after so many years the court would scrutinise the situation with care. 34. Counsel goes on that the situation that requires scrutiny here begins with the circumstance common to historic sexual abuse allegations, that no complaint was made at the time. The complainant said that she was a child who lived in fear of her stepfather who disciplined her and beat her on the behind with a slipper. Unusually, the indecent assaults are said to have occurred in the presence of her brothers, a matter of feet away in the same room. Despite the fact that the appellant is not alleged to have made any attempt to keep the complainant quiet by stifling, threatening or bribing her, the complainant said that she did not cry out to alert her brothers as she did not want them to see what was happening to her. Both brothers were seen by the police. Neither had noticed anything. One said that he never saw the appellant discipline W. The room in which all three children slept was said to measure about 10' by 12', but was no longer available to be viewed due to the lapse of time. 35. The complainant alleged that after the first instance of digital penetration her mother had come into the bedroom. She claimed that her mother looked her in the eye, touched her between the legs and appeared to realise what had happened but did nothing about it. Mrs A, giving evidence, denied any such event. 36. Two further episodes were relied on by the prosecution. In 1980 the family were in Germany. The complainant went there for her holidays and complained that during those Christmas holidays a further act of indecency took place. The defence claimed that the appellant's mother was sleeping in the room where this was alleged to have happened whilst W was sleeping with her brothers. But Mrs A senior was no longer available to give this evidence, having died some five years before trial. 37. By the time she was 16, the complainant was living back home. Just before the Christmas the family moved to Suffolk. She claimed that, shortly after her 16th birthday, she had been raped by the defendant there. She said that after the rape she left the house at 4 am and called the Samaritans. She told them what had happened, but that their response was to insist on taking her straight back home again. After the lapse of time that had taken place, no records were available from the Samaritans to verify or refute this description of what had happened. 38. The complainant claimed to have told her mother the following day that the appellant was an evil pervert. Mrs A denied any such conversation. 39. The complainant alleged that the appellant raped her numerous times thereafter and that she had then gone to live with her natural father and stepmother in Gosport. Enquiries about whether there were any Social Service records relating to her proved futile because Hampshire Social Services only kept their records for six years and Suffolk for five after the child's 18th birthday. Therefore, due to the lapse of time, that avenue of enquiry was closed to the defence. 40. At the end of 1985 or the beginning of 1986 the complainant alleged to her stepsister Karen that she had been abused by the appellant. The detail and extent of the complaint were confused at this remove of time. It was clear that the complainant did not want anybody else told. But her stepmother was in fact told and confronted the complainant about it, taking her immediately afterwards to be examined by Dr McNutt. But no record of any medical examination took place beyond a brief entry in the doctor's records for 21st January 1986. Dr McNutt was contacted about this, but he was in his 80s by the time of trial and could remember no more about either the complaint or the results of his examination. 41. The making of the allegations was transmitted back to the appellant through various family members. He denied any of the allegations, and no further action was taken against him and he heard no more about them for eighteen years, until the police came to see him. 42. By 2003 the complainant was married with a number of children. She told her husband about the allegations, and he persuaded her to go to the police. Thereafter she made her first complaint to the police at Gosport. Unfortunately, counsel complains, no notes were kept of that complaint, and the only document recording it is a Hampshire constabulary message form stating that she reported "an indecent assault" by her stepfather when she was younger and requesting the Suffolk police to contact her. When they did so on 6th November, again no notes were kept of what she had said, except that "she reports this is more than indecent assault and involves rape between the ages of 7 and 16 by the suspect". 43. The appellant was arrested on 17th February 2004 and interviewed later that day. He denied the allegations. When interviewed later on the 21st he again denied each allegation. 44. The defence at trial then remained a denial of any of the offences that were said to have taken place. It was submitted that the case could not be safely and fairly left to the jury due to the passage of time and due to the other incident of prejudice to which we have already referred. 45. Both submissions to the trial judge that the case be withdrawn from the jury were overruled. 46. The learned judge summed the case up to the jury on 29th November. In dealing with the question of delay he told them to make allowances for the fact that the lapse of time caused difficulties for the defence and that the longer the time since the incident the more difficult it may be for a defendant to answer the allegations. He suggested, fairly, that the jury might give more than usual weight to the defendant's previous character. However, counsel complains, he did not relate the issue of delay specifically to the impact on the formulation and conduct of the defence, as has been suggested in one authority: R v Percival , Times Law Report July 20th, 1998. As this court has already observed in the course of argument that is an authority which should be treated with some caution in the light of remarks by the Vice President concerning that judgment and other cases of this kind. There is no universally applicable formula and what is required by way of warning will depend on the particular facts of the cases: R v G(M) [1999] Crim Lr 763 CA. 47. It was agreed during the trial that the evidence of Karen, the stepsister, and of Patricia, the stepmother, could not amount to recent complaint. It was admitted since any examination of why the complaint to the police had been so long delayed was bound to lead to its admission and the trial could not be conducted without examining that central question. The learned judge, summing up their evidence, told the jury it was not based on observation but on what the complainant had told them; so the evidence essentially came from her. However, counsel complains, he did not go on to tell the jury that the fact that she had made this complaint could not be used to support her own credibility. The judge was invited to do that at the conclusion of the summing-up but declined to do so. 48. Counsel concedes as to the verdicts that the mere fact that the jury acquitted the appellant of the rape counts but convicted him on the indecent assaults, where all five counts depended on the uncorroborated evidence of the complainant, does not of itself render the verdicts so inconsistent as to call for interference by an appellate court. He refers this court to the case of R v Bell [1997] 6 Archbold News 2. The fact that verdicts are apparently logically inconsistent does not make the verdicts complained of unsafe unless the only explanation must or might be that the jury were confused or adopted the wrong approach. R v McCluskey 98 Cr App R 216 is referred to. Nonetheless this is another factor, counsel submits, that the court can take into account when deciding on the safety of the convictions. He further submits that, given the way in which the verdicts were returned, it is difficult to avoid a suspicion that the jury arrived at an improper compromise. 49. If the acquittals of rape be attributed to concerns about when and whether the complainant alleged rape, for example to the Samaritans or to the Hampshire police, this serves to reinforce the possibility that the jury placed improper reliance on the fact that previous complaint had been made of abuse in general terms. 50. He reminds us that the Court of Appeal has recently demonstrated repeated concerns about the safety of convictions in some cases of historic sexual allegations such as this one, and submits that, in looking at the case as a whole, there are sufficient matters of concern here to raise substantial doubts about the safety of the convictions. 51. Mr Kellett replied on behalf of the respondent. He points out that grounds 1-5 of the grounds of appeal all relate to the question of delay; that following the cases of Smolinsky and B , the trial judge addressed the question as to whether the case should be withdrawn from the jury. He carefully reviewed the evidence. He clearly directed his mind to the correct burden and standard of proof. He considered the correct tests. The matters were within his discretion, and it could not be said that his decision was Wednesbury unreasonable. When the position was further reviewed at the end of the evidence, again he asked himself the correct questions, and again the conclusion that he reached was within the limits of his discretion. When he came to sum up, he specifically dealt with the questions of delay and gave appropriate directions. It is apparent from the transcript, Mr Kellett adds, that there is a gap in the summing-up which occurs when the learned judge was dealing with Detective Constable Little's evidence. There is no record at all of what the officer dealt with in his cross-examination. A transcript, however, of it is available, and we have seen it. That cross-examination dealt with a number of topics raised in the grounds. 52. It is inconceivable, submits Mr Kellett, that the judge would not have reminded the jury of the essence of Detective Constable Little's evidence. 53. As to ground 5, the evidence which the appellant's mother might have given, that was only relevant to the evidence of events in Germany; and the learned judge had given proper directions and summaries as to that. 54. As to ground 6, the failure of the Hampshire and Suffolk police to keep records, this could only have relevance to the complainant's consistency. 55. As to ground 7, the failure to discharge the jury after they had heard inadmissible evidence of the appellant's alleged violence to his wife, the learned judge described the allegation of domestic violence as being a minor matter compared to the subject matter of the indictment and stated that it was a matter for his discretion whether he should discharge the jury or not. Later he gave the jury appropriate directions. 56. As to ground 9, it is submitted that a direction was not called for in relation to the complaint to the stepmother and stepsister. The judge had made it plain to the jury that their account of what W had said was not independent. He returned to the topic in his addendum dealing with the question of possibly inconsistent statements, stating that it was essentially a matter for the jury. He had made it plain to the jury throughout his summing-up that it was their duty to assess questions of credibility. 57. As to ground 10, the possibility of inconsistent verdicts, he had directed the jury, correctly, as to their approach to the different counts of the indictment. This was not one of those cases where the learned judge was to tell the jury or was in a position where he ought to have told the jury that all the counts stood or fell together. 58. It cannot be said, submits Mr Kellett, that the verdicts on counts 1-3 and counts 4 and 5 were logically inconsistent as a ground for quashing the convictions as being unsafe. The judge made it plain throughout his summing-up that the case turns almost entirely on the credibility of the two witnesses, W and the appellant. It was their decision and they were entitled to come to it. In the circumstances, submits Mr Kellett, the verdicts could not be described as unsafe and therefore the appeal, he argues, should be dismissed. 59. We have been referred to a number of authorities: R v B [2003] 2 Cr App R (S) 197; R v Smolinsky [2004] 2 Cr App R (S) 661; and R v Terence E [2004] 2 Cr App R 621 . In R v B , a case like this of historic abuse, the trial judge had refused an application for a stay by reason of delay - in that case a delay of about 30 years. The appellant was convicted and appealed on the ground that the evidence relied on was unreliable and unsupported by any independent evidence. In allowing the appeal, Lord Woolf CJ held that there remained in the Court of Appeal a residual discretion to set aside a conviction if it was felt to be unsafe or unfair. That was so even where the trial process itself could not be faulted. It was a discretion to be exercised in limited circumstances and with caution. No criticism, he said, could be made of the judge's summing-up and directions in that case. However, it was felt by the court that in all the circumstances it was one of those residual cases where in the interests of justice the conviction should be set aside. Because of the delay, the appellant had been put in an impossible position to defend himself. 60. R v Smolinsky was another case of historic abuse - about twenty years in that case. It was recognised that in many cases it was difficult for young children to talk about abuse and there might well be delays of many years before offences came to light. However, it was also said that if there was an appeal where there had been a long period of delay and where the complainants were young the court would scrutinise the situation with particular care. On the peculiar facts of the case, including discrepancies in the evidence and the inability of the jury to reach a verdict on one of the counts, the convictions were quashed. 61. In the case of R v Terence E - another case of historic abuse - the appellant's appeal was dismissed because the court was satisfied on the peculiar facts of the case that the conviction was not unsafe and because the appellant was not put in an impossible position to defend himself. Juries, it was said, could be trusted to make allowances for the difficulties faced by a defendant when, following a long lapse of time, he could do no more than deny the offences. 62. It seems to us that there are two plain principles to be garnered from these authorities: first, cases of historic abuse, like others, are ones that necessarily turn on their own peculiar facts; second, that the court has a duty in cases of long delay where the complainants were young at the time of the alleged conduct to scrutinise the situation with particular care. That is what this court has endeavoured to do. 63. In our judgment it was particularly unfortunate that, notwithstanding agreement between prosecution and defence that evidence of the appellant's alleged violence towards the mother should be excluded, such evidence was in fact given. It is perfectly true that the judge had a discretion to allow the trial to continue and that later, at page 16 of the summing-up, he gave the jury appropriate directions about the non-relevance of that evidence. But, exercising its duty of scrutiny, this court does not share the prosecution's confidence that on the peculiar facts of this case those directions would have sufficed to put the inadmissible evidence out of the jury's mind. We say that because the mother was herself an important witness at trial and because the concern that lingers is that the jury might have used the inadmissible evidence in assessing her reliability in the context of a question whether she had fallen unduly under the husband's influence by reason of his allegedly violent disposition. We also note that this evidence arrived very early on in the trial. The complainant had barely started to give her evidence. Very little, it seems to us, would have been lost, and a great deal gained, if, following the defence application, the jury had been discharged at that stage and a fresh jury empanelled, the complainant having been forewarned this time not to refer to the inadmissible evidence. 64. We do not, however, view the unfortunate admission of that evidence in isolation. We have had regard also, first, to the unavailability of medical and Social Services records due to lapse of time; second, the potential prejudice engendered by the death of the appellant's mother; third, to the failures of the Hampshire and then the Suffolk police forces to keep adequate records of what the complainant first said; and, fourth, not least, the specific prejudice that may have been engendered by the inability of the defence after so many years to trace potential witnesses from the Samaritans organisation with a view to refuting, it may be, the complainant's account of their involvement following one of the alleged offences. 65. It will be appreciated that each of these factors is specific and peculiar to the present case. This court does not accept any general proposition that mere delay, even extensive delay, in itself casts doubt on the safety of convictions in cases of historic abuse. But given the inadmissible evidence heard by the jury, impacting, as it very possibly did, upon their assessment of a witness important, if not vital, to the defence and one said to have been to a degree complicit in the offending, and given the other factors to which we have referred and to which we have had regard, we are unable to regard these convictions as safe. 66. We add this. First - and we say this with due caution given that we are told that the transcript of the summing-up is incomplete - that while we recognise that the judge did give directions to the jury on the possible effects of delay at pages 6 and 7 of the transcript of the summing-up, he did not thereafter, so far as we can see, in his review of the evidence, put over the specific effects of delay on the defence conduct of the case: for example, on the absence of the medical and Social Service records; on the impossibility of viewing any of the scenes of the assaults; or so far as the availability of the appellant's mother or witnesses from the Samaritans' organisation were concerned. If he did not do this, in a case such as this, it was, we believe, desirable that he should have done so, as recommended in this court in the case of R v Percival The Times Law Reports July 20th 1998, though we fully recognise, as emphasised by the Vice President, Rose LJ, in R v M [2000] 1 Cr App R 49, that that case lays down no general template as to how such directions should be given. 67. Second, that so far as the complainant's complaints, recent or not so recent, were concerned, the appellant was entitled to, but did not, receive a direction, as the law then stood, that they did not constitute independent confirmation of the complainant's evidence. We make it clear however that we do not in the event give a great deal of weight to that part of the appellant's argument, which by itself would certainly not, in our judgment, have affected the safety of these convictions. 68. Thirdly, we are not attracted by the argument of inconsistency as between the verdicts on counts 4 and 5 and those on counts 1-3. The jury had been directed, rightly, that they should consider each of these counts separately. Nobody objected to that direction. It would be idle to speculate on the reasons for the differences between the verdicts; but we are not driven to the conclusion that this was any logical inconsistency, or any that by itself would have affected the safety of the convictions. 69. Nonetheless, for the reasons that we have already given, this appeal will be allowed and the convictions will be quashed. 70. LORD JUSTICE LONGMORE: So the conviction is quashed. Are there any applications? 71. MR KELLETT: I have no application, thank you, my Lord. 72. LORD JUSTICE LONGMORE: Very well.

2005_10_27-619.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2941/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2941

f76ab2faf0ddd1b4227dc1fd9fe1bc1114f9f1cd4439c2794d9897402b6f3480

[2015] EWCA Crim 581

EWCA_Crim_581

crown_court

Case No: 201302529 C2 Neutral Citation Number: [2015] EWCA Crim 581 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Worsley QC The Central Criminal Court Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/04/2015 Before : LORD JUSTICE BURNETT MR JUSTICE GILBART and HIS HONOUR JUDGE GRIFFITH-JONES (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : Emma Jayne Hall Appellant - and - The Queen Respondent - - - - - - - - - - - - - -

Case No: 201302529 C2 Neutral Citation Number: [2015] EWCA Crim 581 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Worsley QC The Central Criminal Court Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/04/2015 Before : LORD JUSTICE BURNETT MR JUSTICE GILBART and HIS HONOUR JUDGE GRIFFITH-JONES (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : Emma Jayne Hall Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Max Hill QC for the Appellant Simon Denison QC for the Crown Hearing dates: 13 March 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Burnett : 1. At the conclusion of the hearing of this appeal we indicated that the appeal would be dismissed. These are our reasons for doing so. 2. The appellant, Emma Jayne Hall, was one of six co-accused who were indicted for the murder of Luke Harwood and other offences surrounding his death. They were tried at the Central Criminal Court before His Honour Judge Worsley QC and a jury between January and April 2013. On 17 April 2013 the appellant was convicted of murder. She was sentenced to imprisonment for life with a minimum term of fifteen years, subsequently increased to seventeen years on an Attorney-General’s reference to this court. This is her appeal against conviction brought with leave of the full court on a single ground. It arises out of the treatment of the solicitor’s attendance notes disclosed by her co-accused, Tony O’Toole, of the content of privileged conversations they had prior to his being interviewed by the police. The purpose of their disclosure was to rebut a suggestion of late fabrication in connection with small parts of his evidence. The solicitor was called by O’Toole for that purpose. The judge restricted the use of the attendance notes. He ruled that the solicitor could be asked questions relating only to the discrete topics which had been suggested were late fabrications, rather than allowing counsel for the appellant to range more widely through them in cross-examining the solicitor. 3. In addition to Tony O’Toole, the other co-accused were James Danby, Jovan Roberts, Billy Duggan and Khalid Hassan. The appellant, Danby, O’Toole and Roberts were charged with murder. Additionally they were charged with causing Luke Harwood grievous bodily harm with intent. The appellant, Danby, O’Toole and Duggan were charged with perverting the course of justice by burning Luke Harwood’s clothing and belongings after he had been killed. The appellant, Danby, O’Toole, Duggan and Hassan were charged with conspiracy to pervert the course of justice by returning to the body with a view to dismembering it. We set out below in a table the details of the convictions that followed. Murder GBH with Intent Perverting the Course of Justice Conspiracy to Pervert the Course of Justice Appellant (Hall) Guilty Guilty Guilty Not Guilty Danby Guilty Guilty Guilty Guilty O’Toole Guilty Not Guilty Guilty Guilty Duggan Guilty Guilty Roberts Not Guilty Not Guilty Hassan Not Guilty 4. The appellant and her five co-accused lived at 72, Crow Lane, Romford. In was accommodation provided to them as homeless people. On 27 May 2012 Luke Harwood moved into that accommodation. On the evening on which he moved in, the appellant, Danby, O’Toole and Roberts were in the appellant’s room with her younger sister, Alice Hall. Alice Hall had been staying for a few days. Luke Harwood walked past the door of the room. Alice Hall recognised him. Two years earlier she had made an allegation of rape against him which, following investigation by the police, was found to have no substance. Be that as it may, the evidence suggested that Alice Hall became upset and indicated the position to the appellant. The Crown’s case was that the appellant was aware of the earlier allegation, although she denied that she knew who Luke was. There was also an issue about whether she or Alice told others, and in particular Danby, about it that evening. 5. Whatever may have been the precise chronology relating to knowledge of the allegation, Luke Harwood was brutally attacked and suffered serious injury within the house. Danby was the leading player in the attack. The Crown’s case was that others were involved directly in the violence but put the case as a joint enterprise. It was these events that gave rise to the grievous bodily harm count on the indictment. 6. Having been severely beaten up, Luke Harwood was taken to the appellant’s car. She drove him, together with Danby and O’Toole, to Woodford Green. She remained in the car whilst they took him to a secluded area near a stream. They killed him by beating him and stamping upon him. They left his body at the site roughly concealed by a mattress. They returned to the car and the appellant drove them back to 72, Crow Lane. Alice Hall had remained there. Various items of Luke Harwood’s clothing and belongings were placed into the appellant’s car. She drove the same group to a petrol station where they filled a canister with petrol. She drove them to a secluded country location where his belongings and clothing were burned. Once more they returned to 72, Crow Lane. Attempts were made to clean up Luke Harwood’s room which was significantly blood-stained. The following day the appellant told her friend, Leanda Kelly, something of the attack on Luke Harwood. She admitted having punched him and that two of her housemates had to pull her off him. Leanda Kelly noticed grazes to the appellant’s right knuckle. 7. That evening the appellant and other co-accused discussed going back to the site where Luke Harwood’s body had been left and also the possibility that one of their number would “break” and give the game away. The appellant sent texts to a friend indicating that she was going to check on the body (using slang) and also indicating that someone had “sorted it”, meaning killed him. 8. The appellant, Danby, O’Toole, Duggan and Hassan then went together in the appellant’s car back to where Luke Harwood’s body had been left. They decided to return again later to render the body unrecognisable. It was between those two visits that the appellant telephoned the police. She informed them of the killing in a way that was wholly exculpatory of her involvement in the events. She indicated that the group was returning to the scene. That they did with equipment to enable the body to be dismembered. All of that group were arrested there. 9. In her interviews the appellant lied about her own involvement in what had occurred. For example, she omitted to mention that she had been present when Luke Harwood had been attacked at 72, Crow Lane. At the time of these events she and O’Toole had been going out together. She lied about his involvement and heaped blame upon Danby, in particular. 10. At trial each of the defendants blamed the others. This was a classic case of “cut-throat” defences. The appellant’s evidence incriminated Danby, O’Toole, Roberts and Duggan. She denied personal involvement in any of the violence inflicted upon Luke Harwood and denied any intention that he should be harmed. Her explanation for driving to and from Woodford Green and elsewhere on all the occasions was that she was forced by Danby to do so. Alice Hall gave evidence over the course of four days. Her evidence was deeply incriminating of her sister, the appellant. Alice Hall had said in her evidence that when she saw Luke Harwood and became upset the appellant “was fucking raving” and said “I’m going to fucking kill him” or “I’m going to kill the cunt”. Danby gave similar evidence. 11. The appellant denied using that language or language to that effect at the outset of the events which led to Luke Harwood’s murder. We note that the prosecution did not suggest that the words used evidenced an intention on the appellant’s part to kill Luke Harwood. Rather, they evidenced her animus and willingness to cause him harm. The appellant was cross-examined by the Crown and on behalf of Danby about her use of those words. No questions were asked of her by counsel acting for O’Toole on that matter. 12. In the course of his evidence, O’Toole also said that the appellant had uttered those words at the outset. He also described in his evidence what happened after Luke Harwood’s clothes had been burned. He indicated that he had asked the appellant whether she was alright. Her reply was “I’m OK, I’m a cold-hearted bitch anyway”. That too had not been put to the appellant on behalf of O’Toole. 13. During the course of cross-examination of O’Toole on behalf of other co-accused, it was suggested to him that this aspect of his evidence was a late invention as were other aspects damaging to the cases of his co-accused. The parties had available to them an account from Mr O’Toole. He was interviewed twice. At the first interview he gave an outline account and at the second gave more details. 14. In answer to his own counsel in re-examination Mr O’Toole repeatedly said that the matter in issue was not a late fabrication (or adoption of someone else’s evidence). He said that he had mentioned those matters to his solicitor. 15. His evidence came to an end. The next day his solicitor was called to deal with that issue. In anticipation of calling the solicitor, copies of the “Police Station Attendance Record” for both 29 May 2012 and 30 May 2012 were disclosed in their entirety to the Crown and all other co-accused. The document is a pro forma enabling all sorts of information and advice to be recorded. A section of the form is headed “instructions from client” and provides the space which enables the solicitor to record the client’s account of events. 16. The judge was asked to rule on the scope of questioning that would be allowed of O’Toole’s solicitor and also whether the evidence of anything said by O’Toole to the solicitor should be evidence of its truth or only evidence which went to O’Toole’s credibility. 17. The Crown and various of the co-accused, including this appellant, argued that in disclosing the attendance notes in full, O’Toole had waived legal professional privilege in all their content. The judge concluded that despite providing the whole of the attendance notes, they were disclosed only for the purpose of establishing his consistency in his account of the various discrete disputed matters, including the two observations attributed by him to the appellant. In those circumstances, the judge ruled against the parties’ application to enable them to cross-examine his solicitor for the purpose of eliciting any and all different accounts that there may be as compared with O’Toole’s evidence in court. Mr Hill QC, who appeared at the trial as he does before us on behalf of the appellant, was recorded by the judge as advancing the following submissions: “… Mr Hill submits that the police attendance records for 29 and 30 May in respect of Mr O’Toole’s solicitors now having been disclosed to all parties in unredacted form, that in effect is open season and that it would be fair and appropriate for there to be cross-examination on all aspects of inconsistency revealed in those records. Mr Hill says whether the court is with him or against him on those submissions that, in any event the jury should be told that that which solicitors say was communicated to them by Mr O’Toole is not the truth of what in fact happened or was said. It is simply the fact he has said it on an earlier occasion. It goes to consistency.” 18. The judge accepted the last of those submissions from Mr Hill and gave the jury an appropriate direction in the course of his summing up. 19. It was common ground between the parties to the appeal that two issues fall to be considered: i) Was the judge right to conclude that the waiver of legal professional privilege was limited for the purposes of establishing consistency between the oral evidence of O’Toole in a number of limited respects and the other accounts already in evidence? ii) If it was not, did the appellant’s inability to range more widely in cross-examining O’Toole’s solicitor have any bearing on the safety of the conviction? Issue 1 – the extent of waiver of privilege 20. It was common ground before us that the disclosure in full of the content of the attendance notes resulted in O’Toole waiving legal professional privilege in respect of everything found within them. That is not to say that legal professional privilege was waived in respect of any other communications between O’Toole and his solicitor, whether relating to the account of events given to the solicitor by O’Toole or advice given by the solicitor. 21. It is not uncommon in criminal trials for a defendant to assert, when it is suggested that his evidence is a recent fabrication, that he had earlier given a similar account to his legal advisors. Equally commonly, a defendant may give as an explanation for not answering questions at interview that he was advised not to by his solicitor and why. In giving that explanation, a defendant waives privilege in the communications in question. The practical implications arising in connection with such issues were fully discussed in the judgment of Hughes LJ in R v Seaton [2010] EWCA Crim. 1980: [2011] 1 Cr. Ap. R. 2. A question necessarily arises in such cases concerning the extent of the waiver of privilege. Often, difficulties also arise about the extent to which a defendant may be questioned to ensure that a false picture is not presented. 22. In this case it would have been possible for O’Toole’s solicitor to be called to give evidence and asked a series of discrete questions relating to the individual pieces of his evidence which it was suggested had been late fabrications. For example, as affects the appellant, the solicitor could have been asked whether O’Toole had given an account of anything said by the appellant at the relevant times and if so what that account was. However that was not the course followed. Instead, the attendance notes containing a more extended account from O’Toole were disclosed. In accordance with ordinary principles of waiver of legal professional privilege, summarised in paragraph 43 of the judgment in Seaton , privilege was undoubtedly waived in respect of the whole content of the attendance notes. 23. It follows, in our judgment, that the judge’s conclusion that the waiver of privilege attached only to and discussion of the relatively few items of evidence upon which O’Toole had been challenged was in error. Thus, to arguments about the fairness to individual defendants of allowing wider cross-examination, to the extent that the attendance notes might have revealed inconsistencies in O’Toole’s evidence, we consider that the co-accused could have explored those inconsistencies with O’Toole’s solicitor. Issue 2 – The effect of limiting cross-examination 24. Mr Hill has identified with particularity those parts of the notes which he wished to elicit from the solicitor. So far as the notes of 29 May 2012 are concerned, he points to the following passage: “Sister was living there – she said to [Danby] that the boy had touched her when she was younger – I was sitting in the room when I heard this – I met him about two months ago he has not left. 26/27 years old – this [conversation] was in [the appellant’s] bedroom – [my girlfriend] – total of five people three were women – Sarah [who left] [the appellant] Alice the sister – and [Roberts] – lives in area but not in our complex – [Danby] was in room – he walked out into boys room – [Danby] is a head case – he [word indecipherable] in – first time Alice had actually been round – Harold Hill area is where she said she knew boy [possibly called Luke] – literally next door – he and [Roberts] started attacking the boy – everyone in the house.” 25. Mr Hill contrasts that with the note made by the solicitor of what O’Toole said in interview a little later that day: “Sunday – [Danby] drinking – boy came round at 9.30pm – recognised him as person who she made allegation against two years ago – Emma said what’s wrong. [Danby] came in asking what was wrong. Present when this was going on – aware that Luke sexually assaulted her.” A complete account of that interview was before the jury. It was the appellant’s case at trial that her sister, Alice, had made an allegation about Luke Harwood in the presence of the men, particularly Danby. Alice denied making any specific allegation at all. Thus, submits Mr Hill, O’Toole’s initial account supports the appellant’s case. 26. The notes for 30 May confirm the two observations attributed to the appellant by O’Toole during his evidence, albeit that the reference to her going to kill Luke Harwood is not accompanied by the expletive. Nothing turns on that difference. The general account given to his solicitor starts in this way: “Me, [the appellant], Alice, [Roberts and Danby] and Sarah were in [the appellant’s] room. I was on the laptop and we were chatting but [Danby] was drinking beer. Luke was just moving into the property. It was his first day there when Alice who had been there since the Saturday night saw him. And became upset. She said oh my God, that’s him, Emma said what, I’m gonna kill him. Emma was going out to confront him and [Roberts] held her back and asked what that was about. [The appellant] pulled away and went out. [Danby] followed her out. Emma told [Danby] only what it was about.” 27. Mr Hill draws a contrast with the detail in the earlier privileged account we have set out. 28. It became apparent in the course of the submissions being advanced on behalf of the appellant, that the argument no longer related to a wish to expose inconsistencies between the various accounts given by O’Toole in his interviews, the instructions to his solicitor and his evidence. Rather, Mr Hill was seeking to rely on a handful of phrases in the course of relatively lengthy explanations as positively supporting the account given by the appellant of the circumstances in which individuals became aware of Alice Hall’s underlying allegation. That would require the hearsay evidence of what O’Toole told his solicitor to have been admitted as evidence of its truth. 29. In our judgment, there was no possibility of that happening at this trial. No application was made on behalf of the appellant to recall O’Toole. Neither was any application made to admit the evidence as hearsay evidence for all purposes, as opposed to evidence of consistency and thus credibility. It was Mr Hill’s submission before the judge that the evidence should not be available to the jury for any purpose other than to raise questions about the consistency of O’Toole’s account. One can well see why. Aspects of the account given by O’Toole to his solicitor were deeply damaging not only to the appellant but also to the other co-accused. No feasible mechanism for admitting any of this evidence as evidence of its truth was identified in argument. We accept the submission on behalf of the Crown advanced by Mr Denison QC that the attempt in these proceedings to advance an argument that the account given by O’Toole to his solicitor could be used selectively to support the appellant’s account of events is entirely at odds with the approach adopted below. For very obvious good reason Mr Hill (and others) wished to limit the scope of the use of this evidence before the jury. Even had Mr Hill applied to the judge to use the evidence in the way he now suggests, it is inconceivable that he would have succeeded. Mr Hill accepts that Mr O’Toole could not realistically have been recalled for further cross-examination – a course which would have been likely to do more damage to the case of his co-accused anyway. If an application had been made under the hearsay provisions of the Criminal Justice Act 2003 to admit the statement that application would have failed. No doubt, that is why it was not made. The co-accused would have resisted anything being admitted as the truth of its content because of its highly prejudicial nature. Furthermore, the appellant would have been faced with accepting an “all or nothing” approach to the hitherto privileged accounts as they related to her. As we have noted those accounts in part damage her position. 30. The limit of the use to which these accounts might have been put had cross-examination of the solicitor been allowed in a more expansive form would be to identify what to our minds were no more than minor further inconsistencies in the early accounts given by O’Toole. Differences between the accounts given by O’Toole in his first interview as compared with his second interview, and then further compared with his evidence were all in evidence. It is impossible to imagine that any significant further points could have been made on behalf of the appellant had cross-examination of the solicitor been more wide ranging. In any event, it must not be overlooked that O’Toole was convicted of murder. The jury did not accept the core of his account. 31. The way in which the judge limited the cross-examination of O’Toole’s solicitor does not undermine the appellant’s conviction.

2015_04_01-3589.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/581/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/581

09d47f80c2e074438d38a2284172d4eca08362bc7029bcd2d654191a633b9efd

[2013] EWCA Crim 1069

EWCA_Crim_1069

crown_court

No: 2012/1180/D2 Neutral Citation Number: [2013] EWCA Crim 1069 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday 8th March 2013 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE SILBER SIR DAVID CALVERT-SMITH - - - - - - - - - - - - - - - R E G I N A v AYANLE ADBULLE - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 02

No: 2012/1180/D2 Neutral Citation Number: [2013] EWCA Crim 1069 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday 8th March 2013 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE SILBER SIR DAVID CALVERT-SMITH - - - - - - - - - - - - - - - R E G I N A v AYANLE ADBULLE - - - - - - - - - - - - - - - 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 Bishop QC and Mr D Jones appeared on behalf of the Appellant Mr A Kent QC and Mr J Polany appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE DAVIS: The appellant is now aged 19. After a relatively lengthy trial before His Honour Judge Dawson and a jury at the Crown Court at Woolwich he was, on 10th February 2012, convicted by a majority verdict of an offence of violent disorder. In due course he was sentenced to a community sentence. There were a number of co-accused. Some were convicted, one was acquitted and in respect of two the jury were unable to reach a verdict. This appellant appeals by leave of the single judge against his conviction. 2. The background facts by way of overview can be summarised in this way. There was a large fight between two groups or very probably gangs of youths which took place in Artillery Square in Woolwich, South East London on 22nd March 2011. The background to this fight was most probably a stabbing that had taken place earlier that day. The prosecution case in essence was that the fight was between two gangs, one referred to as the Woolwich Boys and the other referred to as "Ferria" or "T block". Weapons were used during the incident, including bottles, belts and at least one knife. The appellant and all the co-accused were said by the prosecution to be members of the Woolwich gang and it was said that none of those present were simply onlookers or innocent bystanders. 3. At the time of trial only one of the identities of the opposing T block gang was known and he was the only one arrested. In terms of convenient trial management the prosecution had divided all those who were charged into two groups - those who were over 18 at the time of the charge, who were constituted under indictment A, and those (including the appellant) who were under 18 at the time who were constituted under indictment B. 4. The prosecution evidence came from three particular main sources. First, quite detailed CCTV footage. Second, eye-witness accounts from independent bystanders. Finally, the hearsay evidence of a 14-year-old youth, who may be called RK, who had been with the Woolwich Boys group at the time and was present throughout. 5. In a nutshell, the defence case was that the appellant was part of the group by chance and was unaware of any planned violence and had taken no part in any fighting or disorder. The issue for the jury was thus whether they were sure the appellant had been party to the violent disorder which undoubtedly had occurred. It may be noted that the appellant made no comment when interviewed and he gave no evidence at trial. 6. The trial of the older defendants had been due to take place at Woolwich Crown Court in August 2011. That trial included the one person from the Woolwich gang who had been arrested called T and he indeed was accused as stabbing another young person there called N, who was also on that particular indictment. RK, the 14-year-old, had given an ABE interview in respect of the incident. That ABE interview included answers which in effect, if accepted, incriminated TP in the alleged stabbing. In the event, in spite of every effort and including summons issued, RK refused to give evidence at that first trial. His mother was to give evidence that he was in fear of TP and his associates, and that was confirmed by police evidence. 7. Following legal argument at that first trial, Judge Murphy, who had conduct of that particular trial, ruled that the video recording of RK's ABE interview could be admitted under the provisions of section 116(2) of the Criminal Justice Act 2003 against the other defendants on indictment A, but not TP himself (the alleged stabber). Following this ruling, the Crown took the view that it had no other sufficient evidence as against TP and in due course no evidence was offered against him and he was acquitted. Furthermore, the Crown then took the view that one of the other accused, N, who had been a victim of the stabbing should not further be pursued and the case against him was dropped. That left only one other defendant, O, on that particular indictment. In the event, a few days thereafter, it proved impossible to pursue the case against O on that particular occasion for various administrative reasons and subsequently it was decided that he be added as a defendant instead to indictment B. 8. Shortly after the ruling given by Judge Murphy, the Crown decided, on the advice of counsel, that RK should be interviewed again to see if further evidence might be obtained from him. This took place on Sunday 28th August 2011, just a day or so after the ruling of Judge Murphy. 9. The ABE interview was of course transcribed as well as recorded in the usual way and this court has seen a copy of that transcript, as indeed this court has seen a copy of the transcript of the first ABE interview of RK. 10. In the course of that second ABE interview, RK, whose answers tended to be very much on the short side, answered questions about the incident in question. Among other things he was asked this: "Did you see anyone with any kind of weapons? A. Bottles. Q. Who did you see with bottles? A. Nearly everyone." He then was asked further questions about what he had seen. He was stating that he had not himself been involved and further on in the interview he was asked this: "When the fight started, you are saying that you are not involved? A. Yeah. Q. Where are you? A. I am at the back of the group, just standing and ran back." Then he is asked about the numbers of people involved and he gives his answers, and then a little further on there is this question: "So there is about 23 people in total, 15 in your group and about eight in T's group and how many people are fighting? A. Everyone. Q. So there is over 20 people fighting? A. Yeah. Q. And what are you doing at this time? A. Nothing. I was just at the back." It should be added, as was really common ground, the first ABE interview had effectively focused in terms of its questioning on the stabbing incident and had not focused so much on the circumstances of the general violent disorder. By the time of the second trial it was necessary to call DC Lund who had been involved in obtaining the ABE interviews. It had been made clear and properly disclosed to the defence that assurances had been given to RK and his mother prior to the second ABE interview to the effect that RK would not be called to give evidence at any further trial. The evidence was adduced before His Honour Judge Dawson at the outset of the trial on a voir dire. Something of the flavour of that evidence can be given by certain extracts from the questions and answers of DC Lund. Reading from page 22 of that transcript, the question ended: "He came reluctantly on the premise that he was not to give evidence in court? A. Yes. Q. You explain that there had been several phone calls to the mother and she had wanted reassurances that the purpose of the new ABE was not to give evidence in court? A. That would be right. Q. After the ABE you mentioned that because the evidence he had given was of great value, as far as you were concerned, you said it would be great if he would come to court. He said he would not. A. Yes. Q. And you said here that you did not discuss special measures with him on that occasion but you had previously discussed it with him? A. Yes." And then a little further on, he was again asked some questions. He agreed that the first ABE interview had really dealt with the stabbing itself and then it was confirmed that DC Lund had given the assurance that RK would not be forced to come to court, that being stated both before and after the second ABE. Then reading from the foot of page 24 of the transcript counsel asked: "When you confirmed that he had been given an assurance that he would not be forced to court, as you have said to the learned judge, that was in relation to the O trial and the trial that is still to come? A. Yes. He said he would only attend the second ABE if there was assurance that he wouldn't give any evidence at all. Q. He said that before the interview, as we know. Then after the interview, when you knew what it was that he said, you revisited the question and he still said no. A. That's right, yes." Then a little later on different counsel asked him more questions, including these reading from page 33: "I am only asking to help us with your answers please. What were you hoping would be achieved by asking RK further questions? A. We were hoping for a bit more because the initial ABE focused primarily on the stabbing. We were hoping for more insight to what led up to that conflict happening on Artillery Square. Q. Can you help us with a couple of things that flow from that. Firstly this, why were those questions not asked at some time before the first trial? A. I have difficulty knowing the answer to that. The ABE was conducted by officers before I got involved in the case and that it wasn't really considered until August." 11. At the actual trial itself, Judge Dawson ruled that the first and also second ABE interview could be admitted into evidence, he exercising his powers under section 116(2) of the Criminal Justice Act 2003 for that purpose. The Crown proceeded to call evidence from a number of independent witnesses. One of them, a man called Harris, who had seen the fighting going on, said at one stage that he saw all the boys fighting and that no one appeared to be simply a bystander. There was also other eye-witness evidence and also there was detailed examination of the CCTV evidence. As indicated, this appellant did not give evidence himself although a number of his co-accused did. 12. The principal challenge before us on this appeal is as to whether the judge's ruling that the second ABE interview of RK could be adduced before the jury without RK attending to give oral evidence could be sustained in the light of the assurance that had been given to RK by the police that he would not be called to give evidence. Subject to one particular point, it is accepted that thereafter the summing-up itself was balanced and fair, properly putting all relevant issues before the jury. 13. It is to be emphasised that there is no challenge to the judge's finding for the purposes of section 116(2)(e) of the Criminal Justice Act 2003, the provisions of which it is not necessary to set out here, that RK would not give oral evidence through fear. The judge had the evidence of DC Lund to that effect. He also had the unchallenged witness statement of the mother to that effect. He plainly was entitled to accept that evidence and find that RK was not present through fear. We add that there is no suggestion that the fear was occasioned by this particular appellant. 14. That being accepted, the challenge necessarily is based on the judge's ruling that it was in the interests of justice that the second ABE interview be admitted by reference to section 116(2) and 116(4) of the Criminal Justice Act 2003. 15. The general approach to be adopted by the courts with regard to the admission of hearsay evidence has of course been the subject of a number of recent authoritative decisions. Reference in this regard may be made to Horncastle [2009] UKSC 14 , Ibrahim [2009] EWCA Crim. 837 , Riat [2012] EWCA Crim. and now also in the context specifically of a fear case, Adeojo [2013] EWCA Crim. 41 . 16. It is clear that the power to admit hearsay evidence on the footing that it is generally speaking in the interests of justice to do so, must not be used as a device to let in such evidence without appropriate caution and scrutiny. In a case falling within section 116(2)(e) of the 2003 Act, regard must be had to the matters set out in section 116(4). Clearly in that respect the court will consider amongst other things the importance of the evidence to the case, the risk of its unreliability and the question of whether the reliability of the evidence can be sufficiently assessed by a jury. In short, the potential prejudice to a defendant facing evidence which he is not able to test by cross-examination requires sufficient counter-balancing factors if its admission is to be justified. Indeed one can see from the Parliamentary scheme itself, as set out in the provisions of sections 114 to sections 126 of the 2003 Act an appreciation of the need for such countervailing factors. 17. The central question and whether or not the proposed evidence is potentially sole or decisive evidence in the case remains whether the reliability of the evidence is capable, if allowed to be adduced, of safely being assessed and, if thought proper, accepted by a jury. 18. In the present appeal these general principles were not in dispute before us. Each of Mr Bishop QC on behalf of the appellant and Mr Kent QC on behalf of the respondent accepted as much. What is at the heart of Mr Bishop's complaint here are the assurances given by the police to RK at the time of the second ABE interview to the effect that he would not be required to give oral evidence at any second trial. In this regard Mr Bishop drew our attention to the comments of a constitution of this court in the case of Horncastle (when it was in the Court of Appeal) [2009] EWCA Crim. 964 . These comments are contained in a passage which were not the subject of any criticism by the Supreme Court when the case went to that level of judicial decision making. 19. The passages to which Mr Bishop made particular reference are contained in the judgment of Thomas LJ, giving the judgment of the court at paragraphs 87 and 88. Amongst other things this is said: "The witness must be given all possible support, but also made to understand the importance of the citizen's duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed. For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the CJA 2003 based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all. 88. It may well be that in the early stage of police enquiries into a prominent crime the investigators need to seek out information on a confidential basis: that is a matter for practical policing and not for us. But no person who is becoming not simply a source of information but a witness should be told that his evidence will be read, or indeed given any indication whatsoever that this is likely. The most that he can be told is that witnesses are expected to be seen at court, that any departure from that principle is exceptional, and that the decision whether to depart from it is one for the Judge and not for the police..." Relying on those remarks, it was therefore said by Mr Bishop that the assurances here should not have been given and that they may have operated to taint the reliability of the answers of RK in the second ABE interview. Furthermore, he submitted the assessment of the interests of justice and of the reliability of the evidence of RK contained in a second ABE interview also required consideration of these further factors, albeit accepting that these further factors did not of themselves vitiate the judge's ruling. The further factors he relied upon were these. First, there was evidence to suggest that RK, who had undoubtedly himself been present, may himself have participated in the offence of violent disorder. This therefore may have affected his evidence through his being concerned to deflect attention away from himself onto others, or as indicating a reason as to why he would wish to present himself in a good light to the police. Second, the answers as given in the second ABE interview had contained no statement of truth. Third, the second ABE interview had only come about because the prosecution had failed to ask sufficient questions at the first ABE interview where, as was common ground, no prior assurances had been given. Fourth, it is said that the second ABE interview was itself not thorough and that proper follow-up questions were failed to be put. It included leading questions. The answers that were retracted were terse and conic and overall it was not such an interview as to give a jury a proper base for assessing RK's reliability. Fifth, it is said that there were inconsistencies between the second ABE interview and the first ABE interview. It is said that these factors are important context in assessing the significance of the assurance provided to RK at the time of the second ABE interview, as well as being important in the overall assessment of the reliability of the answers given. 20. The difficulty for Mr Bishop, as we see it, is that in deciding that it was in the interests of justice that the second ABE interview be adduced before the jury, the judge had all these points well in mind. He explained his reasoning in a very full ruling given at the outset of the trial. 21. As it seems to us, the first point to be borne in mind are the circumstances in which the assurances came to be given at the time of the second ABE interview. RK, as we have said, had volunteered without any assurance offered to him his answers in his first ABE interview. It was not altogether unreasonable that that first ABE interview had focused essentially on the circumstances of the stabbing which he said he had witnessed. But by the time of the first trial, RK was adamant that through fear he would not attend to give oral evidence. That was supported by evidence of his mother and of the police, and that was endorsed by the finding of the then trial judge, Judge Murphy. So by the time of the second ABE interview this was not simply the view taken unilaterally by the police that this was a witness who would not give evidence through fear; the police had the finding of a Crown Court Judge to that effect and furthermore RK's mother and RK himself was repeating after the first trial that he was not prepared to come along and give evidence any trial. 22. It was in such circumstances that the second interview took place, counsel for the Crown having advised the police at that stage to have a second interview with RK, this being at a time when O was still on the indictment and at that stage there might have been a trial on the first indictment relating to O. Mr Bishop very fairly accepts that in this case there can be no question of any trickery or bad faith or anything of the kind in the police giving the assurances that they did to RK and his mother at this stage. So the actual giving of the assurances does have to be put in the particular context which occurred here. Moreover, as the Court of Appeal had stated in Horncastle , the giving of an assurance of such a kind does not of itself mean that the evidence thereby obtained will necessarily be excluded at any subsequent trial. What the court was careful to say was that if such an assurance was given the impact of the evidence would be diminished and that a disadvantage to the accused may (emphasis added) not will, result in it not being given at all. So all therefore depends on the circumstances of the particular case. There is certainly no rule of law that hearsay evidence obtained after an assurance that the witness will not be required to attend a trial to give evidence or that his evidence will be read can never thereafter be adduced. 23. The judge was clearly obliged to and did have regard to the fact that an assurance of this kind was given in assessing whether the evidence of the second ABE interview was such that it could safely be left to the jury, that it was in the interests of justice that it be adduced and that the jury could safely conclude that it was reliable. The judge expressly had regard to the comments of the Court of Appeal in Horncastle . He also had regard to the point that RK might be seeking to protect himself in circumstances where he might have been a defendant or otherwise had some explaining to do. He considered that the jury could well understand those points and in any event RK was, and doubtless would have known, hardly by then at risk of prosecution himself by the time of the second ABE interview. 24. The judge expressly held that the indication given to RK by the police did not make the evidence inherently unreliable. He noted that no overtures of assurance had been made or given to RK at the time of the first ABE interview and thereafter it was indeed plain, as a matter of fact, that RK was indeed too frightened to give evidence at a trial. In the course of his ruling, the judge said this (page 21E): "In a situation where a witness is being approached for the first time possibly to give evidence, it would be contrary to public policy to promise that that witness would not be called or have his evidence tested. However, this case is rather far from that situation. Here, a first ABE of RK had been taken. No overtures had been made at that time. A first trial had been scheduled. Huge efforts had been made to get the young boy to court, indeed down to a witness summons being issued. Witness care had been involved in ongoing contact and discussions. The police had been in discussion with him and his family. The boy and his family had made it very clear that they were frightened and they would not give evidence. In this context, the request that a further statement be taken with the assurance that he would not be required to give evidence was, in my view, understandable and I find perfectly acceptable in law ... The reassurance goes to the question of reliability but I find that, having looked at both ABEs, nothing indicates on the face of the documents and indeed nothing was argued that there was a great change of approach by the witness RK in the two ABEs or a difference in the ways he was pointing to involvement in the offences or anything of that sort." Given the factual background recited by the judge, it is understandable, using that word advisedly, why the judge found in terms that it was "understandable" that the assurance had been given. What is altogether a little more difficult to understand is the judge's subsequent comment that this was "perfectly acceptable in law." There is nothing in law which justifies the giving of an assurance in those circumstances. The general prohibition enunciated by Thomas LJ in the case of Horncastle is stated without any qualification at all. That is "it is of especial importance that assurances are never given to potential witnesses". Mr Kent did not seek to go against that and therefore it is not necessary for present purposes to consider whether in very exceptional or unusual circumstances it may be legitimate for the prosecution to give an assurance of this kind to a perspective witness. 25. The fact is the judge did not end his ruling by assessing that the giving of the assurance was acceptable in law and therefore it was in the interests of justice for this evidence to be admitted. On the contrary, he went on carefully to consider the whole issue of reliability. One matter he perfectly properly considered was the issue of whether or not the answers of RK in the second ABE interview could be said to be the sole and decisive evidence in the case. His clear conclusion, plainly justified, was that that could not be said. There was the evidence of the other eyewitnesses, there was the evidence taken from the CCTV. On the one view indeed the evidence of RK may not have been that important, although of course it had the potential to be of importance. Moreover, it is to be borne in mind that Mr Harris, one of the independent witnesses, had himself answered in effect that all of those involved in the fight were indeed in the fight and none were hanging back as bystanders. As Mr Kent pointed out, as a matter of hindsight it can indeed be seen that RK's evidence had not been the sole or decisive evidence, if only because one of the accused was acquitted and the jury could not agree with regard to two others. 26. At a later stage in his ruling, the judge having referred to the fact that there was other evidence available, said this reading from page 24: "RK's evidence cannot of course be tested by cross-examination, but the Crown's evidence generally can be tested and indeed the evidence of RK can be tested by illuminating inconsistencies, calling defence evidence, etc. Indeed as I have indicated a number of inconsistencies have been brought to my attention already which can be quite properly put before a jury." As to the methodology of the second ABE interview, the judge took the view that there was no difference in substance to many other ABE interviews and the jury could observe from themselves what the video interview recorded and the manner in which the answers were given. 27. As the judge had noted, a potentially important counter-balancing factor against the disadvantage to the defence arising out of their not being able to cross-examine RK was the ability of the defence to make comment in their closing speeches on all these matters relating to RK's answers. Further, there was of course, as the judge also noted, the obligation of the judge himself to give appropriate instruction to the jury in his summing-up. When he came to his summing-up, he did so at considerable length, in the fullest terms, highlighting the potential disadvantage to the defence in not being able to cross-examine RK, stressing the variety potential weaknesses in the reliability of RK's evidence as asserted by the defence and including reference to the fact of the assurance that had been given and stressing the need for caution. 28. Overall, in our view, there can be no criticism of the judge's ruling and the conclusion which he reached, which in our view was an exercise of his discretion properly open to him and it was a proper evaluation that it was appropriate in the interests of justice that the second ABE interview of RK be adduced. We add that it is also clear from other remarks made by the judge that he was well aware of the further safety provisions contained in section 125 of the 2003 Act. 29. This then leads to the second ground of appeal advanced by Mr Bishop. Mr Bishop acknowledged the fullness and the fairness of the judge's direction to the jury in his summing-up as to the status of RK's evidence as uncross-examined hearsay. But he made one particular complaint. The second ABE interview had not of course been given after the administration of any oath. Mr Bishop says that that was a potential weakness which should have been highlighted to the jury by the judge, but he entirely failed to make any reference to the point. Mr Bishop drew attention to the observation of Lord Bingham in the case of Grant v Regina [2007] AC 1 at page 15, where amongst other things Lord Bingham said with regard to hearsay statements: "It is necessary to remind the jury, however obvious it may be to them, that such a statement has not been verified on oath, nor the author tested by cross-examination." 30. In our judgment, there is no substance to this particular point in this particular case. RK was 14 at the time and would not in fact have been required to take the oath in the sense of swearing on a holy bible or affirming had he given evidence. But leaving that aside, in his first ABE interview which was before the jury, RK had, as is conventional been asked at some length about his appreciation of the difference between truth and lies. He had then specifically been asked in terms: "You understand that you must tell the truth?" and he acknowledged that. Although this was not repeated in the second ABE interview it was clear that this understanding would have carried through. Although there was no formal oath as such, RK would clearly have understood the importance of the questions and answers that were being given at this particular stage. Moreover, it would of course have in fact been obvious to the jury that no oath had been administered to RK at the second ABE interview. 31. This point in our view has no validity. As Mr Kent said, taken in context any omission of the judge in this regard was inconsequential. 32. Overall therefore, we are entirely satisfied that the trial was fair and the judge's ruling was justified, given the circumstances of the case, as to the admission of RK's second ABE interview. The judge's summing-up was conspicuously full, thorough and well-balanced. The conviction is not unsafe and we dismiss the appeal.

2013_03_08-3126.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1069/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1069

81637b47778d0dc7024901509c19b5a97f49ae339167e8dea58650805838e412

[2023] EWCA Crim 1331

EWCA_Crim_1331

crown_court

Neutral Citation Number: [2023] EWCA Crim 1331 Case No: 202202061 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NEWPORT CROWN COURT Assistant Judge Advocate General Robert Hill Ind. No. T20200017 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/11/2023 Before : LORD JUSTICE DINGEMANS MR JUSTICE JAY and MR JUSTICE KERR - - - - - - - - - - - - - - - - - - - - - Between : Allen Brutnell Appellant - and - Rex Respondent Mr John McNally (who did not appear below) instructed by

Neutral Citation Number: [2023] EWCA Crim 1331 Case No: 202202061 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NEWPORT CROWN COURT Assistant Judge Advocate General Robert Hill Ind. No. T20200017 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/11/2023 Before : LORD JUSTICE DINGEMANS MR JUSTICE JAY and MR JUSTICE KERR - - - - - - - - - - - - - - - - - - - - - Between : Allen Brutnell Appellant - and - Rex Respondent Mr John McNally (who did not appear below) instructed by the Registrar of Criminal Appeals on behalf of the Appellant Mr Ahmed Hossain KC instructed by the Crown Prosecution Service for the Respondent Hearing date : 8 November 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 12 noon on 15.11.23 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. Lord Justice Dingemans : Introduction 1. This is the hearing of an appeal against conviction pursuant to leave granted by the full Court. The appellant is a 37 year old man who was at the time of his conviction working as a carpenter. He was convicted on 30 May 2022 in the Crown Court at Newport on the Isle of Wight, following a trial before Assistant Judge Advocate General Robert Hill (the judge) and a jury. The conviction followed an earlier trial at which the jury had been unable to agree. 2. The convictions were for five counts of indecent assaults on a girl aged under 14 contrary to section 14(1) of the Sexual Offences Act 1956, and five counts of sexual assault of a girl aged under 13 years contrary to section 7(1) of the Sexual Offences Act 2003. Some of those counts were multiple incident counts pursuant to rule 10(2) of the Criminal Procedure Rules. In total the appellant was convicted of 26 separate occasions on which the jury were sure that the appellant had touched the vagina, over underwear but under dresses or skirts, of three separate complainants. The appellant was aged between 16 to 18 years for half of the offences and aged between 18 and 21 years for the remainder of the offences. The appellant was sentenced to an overall sentence of 3 years 9 months. 3. The ground of appeal for which leave was granted relates to the fairness, balance and sufficiency of the summing up. The relevant factual background 4. The prosecution case was that the offences took place between 2003 and 2009 at Cheeky Chimps, a day care nursery and after school club in Ryde on the Isle of Wight, against three complainants. The complainants have the benefit of lifelong anonymity pursuant to the provisions of the Sexual Offences Amendment Act and they have been referred to in the papers before us at C1, who had been born in 1994, C2, who had been born in 1996, and C3, who had also born in 1996. C1 and C2 were sisters. The sexual assaults were the touching of the vaginas of the complainants over their underwear while the appellant pretended to be engaged in innocent physical play involving giving piggybacks, having them sit on his lap and tickling. 5. Cheeky Chimps catered for children aged 5 to 13 years. It was run by the appellant’s half-brother Ricky Larbalestier. Between 2003 and 2009 the three complainants each attended there when aged between 9 and 13 years. The appellant worked there initially before he left school, aged 14, and then on a permanent basis after he had left school, aged 16 until he left aged 21. This was between 2003 to 2009 and the period during which the prosecution alleged that the offences occurred. During this period it was common ground that the appellant encountered each of the complainants whilst working there. 6. An allegation was first reported to the police in November 2017. It followed disclosures by C1 to a psychiatric therapist, when undergoing counselling for depression, that the appellant had repeatedly touched her vagina when she was sitting on his lap watching television. At this time C1 was 23 years old. 7. The prosecution relied on the evidence of C1. C1 said that she had discussed matters with her sister, C2, when she had been 15 or 16 years old. She had asked her whether the appellant had touched her, her sister had been embarrassed and had said no, so she could not be sure that they had been sexually assaulted in the same way. C1 accepted that she knew C3 but said that she had not discussed her allegations with her and had not seen her since they were at Cheeky Chimps. 8. C1 had also told her counsellor that the abuse had also happened to a friend. She later clarified that she meant her sister C2, but that she was protecting her identity. The appellant relied on C1’s use of the word friend to suggest that C1 was referring to C3, and that this showed collusion and contamination of the respective accounts. 9. C2 attended Cheeky Chimps every day after school with her sister, C1. She could not recall the exact dates but had started going there when she was attending primary school and stopped going when she started at middle school. She knew the appellant as ‘Big Al’. She disclosed to a male friend when she was in middle school that she had been sexually assaulted whilst at Cheeky Chimps. 10. She accepted that she and C1 had discussed their allegations before C1 had reported matters to the police, but she could not recall what had been discussed. She thought that it had also happened to C3, but she had not kept in contact with her. She recalled that there had been a discussion at Cheeky Chimps when she was about 8 years old, and she believed that C3 had made reference to Big Al tickling and had asked ‘when he tickles you does he tickle your fanny?’. 11. C2’s male friend from middle school gave evidence to rebut the allegation that C2’s complaint was a recent fabrication. He said he had met C2 when they were both aged between 9 and 11. They became good friends and she disclosed to him that she had been inappropriately touched at Cheeky Chimps by ‘Big Al’ who would tickle her ‘fanny’. 12. C3 gave evidence that when she was aged 7 or 8 she attended the after school club ‘Cheeky Chimps’. She had disclosed to her Mum that the applicant had touched her vagina at the time but no action was taken. Her mother knew the appellant and his family and may have thought that her daughter was mistaken and that any touching had been accidental. 13. She had no recollection of the discussion or comment made at Cheeky Chimps, referred to by C2, when C2 said that C3 made reference to the appellant tickling and touching her fanny. C3 denied that she was friends with C1 or C2, or that she had spoken to either of them since being at Cheeky Chimps in 2010. 14. C3’s mother gave evidence to rebut allegations that C3’s complaints were a recent fabrication, and confirmed that when her daughter was approximately 8 years old she disclosed to her that the appellant had touched her vagina whilst he gave her a piggyback, but that the mother had not pursued the matter. 15. The appellant was arrested and interviewed. In interview he denied the allegations. He agreed that he had helped at Cheeky Chimps when he was 14 years old. He had worked there properly from the age of 16 helping with the supervision of the children. He did not recall giving any of the complainants piggybacks or being aroused by C1 sitting on his lap and he did not touch their vaginas. The appellant said that he had been told by Hayley Sparshott, who was his partner’s sister, that C1 and C3 were friends at High School and they had all socialised together. C3 had frequently visited Hayley Sparshott whilst the appellant had been looking after her and they had engaged in conversation. He emphatically denied the allegations. 16. At trial the appellant gave evidence denying the allegations. His case was that the complainants had colluded and fabricated their evidence. He repeated the accounts he had provided to the police in interview. He said he had never been alone with any children at Cheeky Chimps. There were about eight other adults working there at the time, and everyone could wander around the building. He had never placed any children on his lap. Although he would tickle children he would never tickle them under their dress or touch their vaginas. 17. In about 2011 (the appellant had originally said 2017 but there seems to have been some confusion about the dates) he and his partner Stacey Sparshott had been looking after Stacey’s siblings, Hayley Sparshott and their brother. C3, who was about 14 at the time, was friends with Hayley Sparshott and had visited the address and had sleepovers. It was accepted that the appellant had said that C3 stayed for sleepovers for the first time at the retrial, but he denied suggestions in cross examination that he was making it up. He said that prior to that in 2011 and 2012 he frequently saw C3. The appellant suggested that the disclosure by C3 to the friend at middle school had not occurred and that, instead, C3 had contacted that person much later and ‘roped him in’ to the investigation. 18. Hayley Sparshott gave evidence to the effect that she was close friends with C3 and frequently saw her. Whilst the appellant looked after her and her sibling, C3 came to the address and slept over. C3 and the appellant had ‘high fived’ each other, there was no suggestion of any animosity or awkwardness. She declined to comment on whether C1 and C3 knew each other. 19. The case for the appellant relied on: (1) his denials; (2) his good character in the sense that he had dissimilar and minor previous conviction for which he was conditionally discharged and fined, which meant that he had no previous convictions for sexual offending at all. He was less likely than not to have committed the offences with which he was charged; (3) the evidence of Hayley Sparshott to rebut the evidence that C3 had not seen the appellant since she and he had left Cheeky Chimps; (4) the discrepancies in the accounts given by C1 and C3, which undermined their credibility, about their friendship with each other after they had left Cheeky Chimp; (5) C1, C2 and C3 had colluded and fabricated their evidence. It was accepted that C1 and C2, who were sisters, had discussed their allegations, which provided further support that they had colluded or that their accounts had been contaminated. The summing up 20. The judge circulated his draft directions to counsel and it is apparent that those directions were modified in the light of submissions made by trial counsel for the appellant. The judge gave a split summing up. The judge gave directions on the functions of Judge and jury; the burden and standard of proof; the elements of the offences; the need for a separate consideration of counts; the meaning of multiple and single incident counts; the changes in the law and the relevant dates for that; collusion and innocent contamination; delay; the relevance of good character; cross admissibility; and the need for unanimity. The first set of directions took 19 pages of the transcript. 21. After closing speeches, the judge completed his summing up. His summing up went from pages 22 to 71 of the transcript. 22. After the first part of the summing up, the judge asked if there were matters arising and counsel for the appellant clarified the date of the appellant’s drink driving conviction (the convictions had been led by the defence because they were minor, did not relate to sexual offences and the judge gave a direction on good character). After the judge had finished summarising the evidence in the second part of the summing up, he sent the jury away for the evening, and confirmed with counsel that he did not intend to sum up what he referred to as peripheral witnesses and confirmed that there was nothing arising from counsel. The next morning he took the jury through the routes to verdict, and at the end of that process trial counsel for the appellant identified that one of the steps needed to be clarified and that was corrected for the jury. The issues on appeal 23. Mr McNally identified six ways in which the summing up was defective in his perfected ground of appeal. These were: (1) The narrative background summing up being inadequately and unhelpfully constituted; (2) The Court’s directions as to the maturity, comprehension and capacity of the complainants being inappropriate both as to form and content; (3) The Court did not sum up inaccuracies and inconsistencies in the Crown’s case, nor the defence case sufficiently fully; (4) The treatment of the separate issues of collusion, contamination and delay was inadequate in law and as it related to the matters of evidence before the jury (particularly as related to the discussions that had taken place in the past about allegations); (5) the characterisation of the allegations as ‘surreptitious’ did not properly reflect the totality of the evidence or the defence case which acknowledged the possibility of an accidental contact (albeit not accepting that such occurred); and (6) The defence case was not properly or adequately summed up, whether in relation to the Defendant or witnesses called in his case. 24. Mr McNally on behalf of the appellant submitted that the structure of the summing up was unhelpful because the judge mixed the legal framework with a narrative of contentious and non-contentious matters. The judge gave a commentary which trespassed on the province of the jury. There was a failure to sum up the evidential issues including the defence case. The treatment of collusion and contamination was not balanced. The judge’s description of the offending as surreptitious minimised the defence points about the unlikelihood that the appellant could have acted as alleged without being seen and maximised the possibility of guilt. Even if the points individually might not have been enough on their own, the effect of all of these matters made the convictions unsafe. 25. Mr Hossain KC on behalf of the prosecution submitted that the judge’s directions were fair and sufficient, and the draft legal directions had been modified in the light of submissions by trial counsel on behalf of the appellant. The judge’s split summing up was appropriate, the judge’s commentary was not unbalanced, and he had summed up both the prosecution and defence cases fairly. The judge’s directions on collusion and contamination were proper directions, which highlighted the jury’s need to take particular care. The use of the word surreptitious was a perfectly permissible description of what the complainants had said had happened, in that the appellant had taken the opportunity to put his hand under dresses and over underwear to touch their vaginas, and had piggybacked the complainants in such a way that he could touch their vaginas. 26. In the written and oral submissions the points were advanced by Mr McNally and responded to by Mr Hossain under slightly different headings, and we have considered each of them under the heading “the specific complaints” below. We are very grateful to Mr McNally on behalf of the appellant and Mr Hossain on behalf of the prosecution for their helpful written and oral submissions. Relevant legal principles 27. As the ground of appeal for which leave was given relates to the balance and fairness of the summing up it is relevant to record that this Court will allow an appeal against conviction if we think that the conviction is unsafe, see section 2(1) of the Criminal Appeal Act 1968. Paragraph 3(a) of Part 25.14 of the Criminal Procedure Rules requires a judge to give the jurors directions about the relevant law and to summarise for them, to such extent as is necessary, the evidence relevant to the issues they must decide. The judge must remain impartial. 28. The form and content of any summing up can almost always be improved, but the fact that it could be improved will not, of itself, make a conviction unsafe. Everything will depend on the directions given and the issues at the trial. A judge is entitled to comment on the facts, but should do so with care and avoid the summing up becoming fundamentally unbalanced, see Mears v The Queen [1993] 1 WLR 818. In Mears a judge had impermissibly undermined the main defence argument which was to the effect that the defendant’s confession to his partner, which was disputed, did not match with the pathological evidence as to the cause of death. 29. On the specific issue of fairness, in Randall v The Queen [2002] UKPC 19; [2002] 1 WLR 2237 at paragraph 28 Lord Bingham stated: "While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders the trial unfair … But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty." 30. In Bernard v The State of Trinidad and Tobago [2007] UKPC 34; [2007] 2 Cr App R. 22 the court stated that "in a case of procedural unfairness … determination of such an issue involves weighing the seriousness of the irregularities. If the defects were relatively minor, the trial may still be regarded as fair. Conversely, if they were sufficiently serious it cannot be accepted as fair, no matter how strong the evidence of guilt." 31. As was emphasised in R v Awil [2022] EWCA Crim 1802 at paragraph 32 and R v BKY [2023] EWCA Crim 1095 at paragraphs 77 to 82, the guiding principle must always be balance and fairness. At paragraph 87 of BKY it was said that when assessing issues of balance and fairness on appeal, the fact that trial counsel did not raise a point at trial is not necessarily fatal to an appeal, but it is often a good indication of whether a particular omission seemed important at the time to those immersed in the trial and who were well able to judge the significance of a point being made. The specific complaints 32. Before turning to the summing up we deal with one particular point made on behalf of the appellant to the effect that the judge had descended into the arena and cross examined the appellant. It is correct that at the end of the appellant’s evidence the judge had asked questions of the appellant, but it is apparent that this was because there appeared to be some confusion over dates, and in particular when C3 had gone to visit Hayley Sparshott. The judge’s questioning was to ensure that his note was accurate. It is right that the questioning did continue for some time as appears from the transcript, but it seems that was because the appellant had some difficulty in working out the dates. In the end the position was clarified. This questioning was permissible and did not represent the judge appearing to take sides. 33. Mr McNally submitted on behalf of the appellant that the “summing up was unhelpful from its outset” and the judge should not have mixed introductory legal matters with what he described as a handed down narrative. The legal directions should not have descended into the detail of the case. It had led to the bolstering of the complainant’s evidence because there was an implied endorsement of what they had said. It was said that there was no clear and logical framework to the summing up. 34. We do not accept the overarching complaint that the judge should not have tailored his legal directions to the specific circumstances of this case. It is the duty of any trial judge to tailor their legal directions to the specific circumstances of the case before them. This is because a jury is not likely to be assisted by an academic summary of principles of criminal law. That said, it is important to ensure that legal directions are not to be seen as deciding issues of fact for the jury, and we address below the specific complaints about the legal directions that were given. 35. Mr McNally submitted that “a number of passages amounted to commentary or explanation which it was not for the Court to give as it impermissibly trespassed on the province of the jury”. Particular complaint was made about the way in which the judge had referred to the maturity, comprehension or otherwise of each complainant which existed at the time of the events, leading to an implied endorsement of what complainants said. Mr McNally also complained about the way in which the judge had dealt with “the issues of collusion and contamination”. 36. The judge started this part of his summing up by briefly summarising the prosecution case and then turning to the defence case summarising it as follows: “The Defendant denies all allegations made against him and maintains that each complainant has fabricated their evidence. He invites you to consider whether, in fabricating their evidence, they have, in the vernacular, put their heads together.” This was a succinct and accurate summary of the defence case. 37. The judge then turned to the issue of collusion and contamination. The judge noted that the sisters had discussed in broad terms the allegations being made and noted that as sisters it would be extraordinarily odd if it were otherwise. The judge went on: “However, in a case of this nature when the evidence they give is both similar and related to matters that were alleged to have happened many years ago when they were children, when you consider their evidence, you should necessarily as a matter of common sense take great care ” (underlining added). This showed the judge was dealing with the issues of collusion and contamination carefully. 38. The judge went on to deal with what collusion and innocent contamination were saying: “For the purpose of this case, collusion refers to a situation where two or more witnesses deliberately get their heads together to concoct a false story. So here, to falsely concoct allegations of indecent touching against the Defendant. Innocent contamination refers to a situation where one witness either consciously or subconsciously picks up on another witness’ recollections when told about them and their own memory plays tricks and they falsely adopt or at least to some degree incorporate or are influenced by the other witness’ recollections when they try to recall, recollect matters themselves”. This was a proper approach to collusion and contamination in the circumstances of the case. 39. The judge concluded this aspect of his directions saying: “If you decide the Defendant’s suggestion the three complainants colluded to make similar false allegations against him either is or even might be right, then obviously he’d be entitled to be acquitted on all counts. However, if you reject the suggestion it does not automatically follow that he must be guilty. You must go on and consider the case in accordance with the directions I now come to give you. You could not convict the Defendant of the counts you are considering unless you are first sure that the evidence of the Complainant to that count is truthful, accurate and reliable.” This was a fair and proper summary of the position. 40. The judge then turned to directions about “preconceived ideas or expectations” as to how victims might respond. Mr McNally criticised the passage in which the judge addressed the fact that the complainants were now adults but at the time were childlike and immature. We see nothing wrong with that direction, in circumstances where the judge had started the passage saying that they were young children “at the point in time when the offence is alleged to have occurred”. This made it clear that the issue whether the offences had occurred was for the jury to determine. Mr McNally is right that the judge did say at one stage that “you will need to bear in mind and take into account that they were not telling you about matters laid down as memories in recent years but laid down in their memory as children a long time ago” but to be fair to the judge it followed the introduction to this passage where he said: “As they gave their evidence to you, the complainants were, of course, setting out what they say are their memories of these events from childhood many years afterwards …” (underlining added). As the underlining emphasises, the judge had not made the mistake of treating the complainants accounts as being true, but had left that for the jury. The fact that the judge had said that these matters, if they occurred, would have been experienced by the complainants as children did not undermine the appellant’s evidence about the relative maturity of the respective complainants. This is because the appellant was not contending that the complainants were not children at the time. 41. The judge dealt with the issue of delay in reporting making the point that the fact that a complaint is not made at the time did not necessarily mean that it must be false any more that a complaint made immediately meant that it was true. The judge dealt fairly with the effect of delay. He made it clear that he was not prejudging the evidence, saying that the complainants “in making these allegations are all recalling as adult matters that if they happened …” (underlining added). 42. Mr McNally drew attention to a passage where the judge did say, when summarising the evidence that C2’s evidence that there had been no contact with C3 after leaving Cheeky Chimps “again, firm evidence there’s no contact post Cheeky Chimps days between her and [C3]”. The judge, however, went on immediately to say “you’ll decide whether you accept that evidence or not and if you do, well you’ve got the prosecution’s suggestions in regard to it”. The use of the phrase “firm evidence” when followed by the passage did not suggest that was the judge’s assessment of it, but that it was C2’s firm evidence, for the jury to decide whether to accept or reject. 43. We turn next to consider the complaint that “There was a failure to properly sum up the evidential cases on relevant issues (including the defence case)”. Mr McNally complained about the fact that the judge recited extracts from the ABE interviews given by the complainants. In fact the judge had fairly summarised the complainants’ evidence, and specifically reminded the jury of the relevant cross examination about discussions with the other complainants. 44. As to the complaint that the judge did not deal with the defence we have looked carefully at the whole of the summing up. The judge had summarised succinctly the defence case at the start of his directions, and he then picked up the points made by trial counsel for the appellant throughout the summing up. For example when summarising the evidence of C3 he set out her evidence about whether she had visited a particular house and said “when we come to the defendant’s evidence, he and Ms Sparshott give a different account of that”. The judge provided a full summary of the appellant’s evidence and set out his case about collusion between the complainants. The judge referred to the fact that the appellant was engaged, had two children and summarised his case about each complainant, reminding the jury that the appellant had said that C3 was “a bit more grown up” than the sisters C1 and C2. The judge summarised the evidence of Hayley Sparshott which was relied on to show that C3 had met the appellant after she had finished attending Cheeky Chimps and greeted him normally. We can see no unfair failure to set out the defence case. 45. We turn finally to the complaint that the judge characterised the touching of the complainants as “surreptitious”. It is apparent that this word first featured when used by the judge in the draft directions that he sent to counsel. He used it in the legal directions and in his summary of the evidence. The first reference was: “All three female complainants have alleged that Adam Brutnell sexually abused them as children when they were in his care. The nature of the abuse being quick surreptitious touching of their vaginas over their knickers whilst outwardly engaged in innocent physical activity in the course of his duties”. The second reference was: “In this case, the alleged pattern of multiple offending as far as both, it should be [C1] and [C2] are concerned is one of the same surreptitious touching occurring on very many occasions …”. The third reference was: “The nature of the allegation, of course, is that it was surreptitious quick touching”. This was said in the context of the evidence of C1 who did say that the touching did not last for any length of time, as opposed to the complaint made by C3. 46. It is apparent that when the judge used the word “surreptitious” he was summarising the prosecution case. The judge was not saying that he considered the touching to be surreptitious, but that the prosecution case was that it was surreptitious. This was a permissible description of the prosecution case because it was the evidence of the three complainants that the appellant had taken advantage of the piggybacking or having them sit on the lap to put his hand under their dresses and to touch their vaginas above their underwear. That behaviour can properly be described as surreptitious. The judge was not in these passages saying that the abuse had happened. Indeed the judge had specifically said before the last use of the word surreptitious “The, the point, you’ll appreciate, from the defendant’s perspective is that there were a number of adults there. It was all every open plan, and it would be very difficult to behave in this way repeatedly without being seen”. 47. We have read through the summing up carefully, but we do not find that the summing up was unfair. There is nothing in the summing up to suggest that these convictions are unsafe. Conclusion 48. For the detailed reasons set out above the appeal is dismissed.

2023_11_15-5911.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1331/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1331

d235b62eda988fc2ebb0814364bb5cd6fc5876eefaa50ebedac4f9fea39ea3fd

[2007] EWCA Crim 3150

EWCA_Crim_3150

crown_court

No: 2007/4711/C5 Neutral Citation Number: [2007] EWCA Crim 3150 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 4 December 2007 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE OPENSHAW HIS HONOUR JUDGE STEPHENS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - R E G I N A v M.K. PROSECUTION APPEAL UNDER S.58 CRIMINAL JUSTICE ACT 2003 - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes

No: 2007/4711/C5 Neutral Citation Number: [2007] EWCA Crim 3150 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 4 December 2007 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE OPENSHAW HIS HONOUR JUDGE STEPHENS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - R E G I N A v M.K. PROSECUTION APPEAL UNDER S.58 CRIMINAL JUSTICE ACT 2003 - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - MR D TEMKIN appeared on behalf of the Applicant Crown MR M LAVERY appeared on behalf of the Respondent Defendant - - - - - - - - - - - - - - - - - - - - Judgment 1. LORD JUSTICE RICHARDS: This is a prosecution application for leave to appeal against a terminating ruling under section 58 of the Criminal Justice Act 2003 . The ruling was made by the trial judge, Mr Recorder Narayan, on 21st August 2007 in the course of the defendant's trial in the Crown Court at Burnley. Following the ruling the prosecution sought an adjournment to consider whether it wished to appeal. The jury was discharged. On the following day the prosecution told the judge that they wished to make an application for leave to appeal. Leave was not sought, as it should have been at the time, from the Crown Court, but we ourselves have now granted leave. No dispute has been raised before us that the conditions for an appeal to this court are satisfied. 2. The defendant is charged on count 1 with being concerned in making an offer to supply a controlled drug of class B, namely amphetamine, on 20th September 2005, on count 2 with being concerned in the supply of amphetamine on 30th September 2005, and on count 3 with possessing amphetamine with intent to supply on 19th April 2006. 3. The charges arise out of an undercover investigation into the supply of controlled drugs in East Lancashire. The prosecution case is that the defendant was holding a supply of drugs for a dealer called Kevin Barski who has since been convicted in relation to the supply of drugs to the undercover officers and that the defendant had sufficient control over the supply to be able to dictate the prices at which the drugs were to be offered. 4. The first incident to bring the defendant to the attention of those carrying out the investigation was on 20th September 2005. Undercover officers assuming the identities of "Sean" and "Eddie" had established themselves at an address near Orchard Drive in Oswaldtwisle and had identified amongst others that Barski was a person engaged in the supply of controlled drugs. It was against that background that arrangements were made for Barski to attend at the address used by Sean and Eddie on the afternoon of 20th September 2005, ostensibly for the supply of a quantity of amphetamine to "Roy", who was in fact a third undercover officer. 5. Contact was made with Barski a little after 3.44 pm. He arrived at the address a short time later. At 3.50 pm, prior to his arrival, he had been seen to emerge from an alleyway that runs along the rear of the defendant's address in Spring Hill Road. He was seen to be carrying a white carrier bag. When he arrived at the address used by the officers he handed over a carrier bag to "Roy" in exchange for £950. The bag was subsequently found to contain 559 grams of amphetamine at 4% purity. 6. Consequent upon that transaction there followed discussion as to whether Barski would be able to make further supplies of amphetamine of better quality. It was in the context of this conversation that Barski made a telephone call to ascertain the availability and cost of amphetamine paste. We will come back to that call in a moment. Having made the call, Barski indicated the price at which he could supply amphetamine. 7. On 30th September Barski had repeatedly attended the address occupied by the officers, negotiating the further sale of amphetamine. He initially arrived at approximately 11.50 am. He left and then returned with a sample of amphetamine some 10 minutes later. He was observed walking between Orchard Drive and the defendant's address in Spring Hill Road on a number of trips both in the late morning and in the course of the afternoon, and was seen actually leaving and re-entering the defendant's address. At 5.00 pm he was observed leaving the defendant's address carrying a yellow and black carrier bag. He walked towards Orchard Drive. He arrived at the address near Orchard Drive maintained by the undercover officers a little after 5.00 pm and delivered a carrier bag which was subsequently found to contain 508 grams of amphetamine at 8% purity. Having completed the transaction he was seen to return to the defendant's address soon afterwards. 8. It was many months later, on 19th April 2006, that a warrant was executed at the defendant's address at Spring Hill Road. During the search of that address there was recovered a plastic box found to contain 531 grams of amphetamine at 2% purity. 9. That is the chronology of events. We come back to the telephone call on 20th September. The call was made at 3.55pm. It was of 38 seconds duration and on the prosecution case can be shown by telephone records to have been made from Barski's mobile telephone to a mobile telephone that was recovered in the search of the defendant's address on 19th April 2006. The defendant also admitted in interview that the telephone recovered at his address belonged to him. 10. The call itself was captured at Barski's end of the conversation by covert recording equipment, which again, according to the prosecution, reveals the apparent immediacy of the recipient's response, with no surprise or confusion at the nature of the enquiry. The relevant part of the transcription of the call reads as follows: "(Makes phone call) Hiya, it's me what can you get on the paste, a price on the paste? Yeah the paste, the Billy, the paste on a Ki?" The prosecution applied at trial to adduce evidence of that telephone call, including those words as spoken by Barski. The defence was prepared to admit the bare fact of the call from Barski's telephone to the number of the defendant's telephone and the duration of the call, but the application to adduce evidence of what had been said by Barski during the conversation was resisted by the defence on the ground that the words spoken by Barski were hearsay within section 114 of the Criminal Justice Act 2003 , had not been subject to hearsay notices and should not be admitted. The Recorder accepted the defence submission and ruled that the evidence was hearsay. That is the ruling against which the appeal is brought. The prosecution's position is that exclusion of what was said by Barski in the telephone conversation left it with no evidence to identify the defendant as the source of supply of the drugs on count 1 and that in reality there would have been insufficient evidence against him on counts 2 and 3 as well. 11. The statutory provisions in respect of hearsay evidence are contained in Chapter 2 of Part 11 of the 2003 Act . In particular, section 114(1) provides that 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, it gets through one of the specified gateways. By section 115(2) a statement is any representation of fact or opinion made by a person by whatever means. By section 115(3) a matter stated is one to which Chapter 2 applies if, and only if, the purpose or one of the purposes of the person making the statement appears to the court to have been (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated. 12. The grounds of appeal formulate the question of law for this court as follows: "Whether evidence may be adduced at trial of words spoken (namely a request for an indication of the price for a quantity of drugs), not spoken in the immediate presence of the defendant, made by a person not called as a witness, as a basis for inviting the jury to draw an inference from the fact that the words were spoken (namely that the person to whom those comments were addressed was a person concerned in the supply of drugs)." The submissions advanced by Mr Temkin on behalf of the prosecution are as follows. It is said first that the relevant part of the conversation contains no representation of fact or opinion save for the caller's assertion that he was "Kev" - that is to say Barski - of which direct evidence is available. This was no more than an enquiry as to the availability and cost of specific drugs. Further, if there was a representation of fact or opinion it did not relate to a matter stated within section 115(3). Accordingly, it is said the evidence does not fall within the hearsay provisions of the 2003 Act . The evidence is relied upon as a basis for drawing the inference that the person to whom the comments were addressed was a person concerned in the supply of drugs. It is said to be a clear example of what was analysed in Kearley (1992) 95 Cr.App.R 88 as an implied assertion: in this case an implied assertion by Barski that the person to whom the comments were addressed was his supplier. As such, under the common law rules applied in Kearley , it would have been hearsay. But it is submitted those rules have been abolished by the 2003 Act , save to the extent preserved by section 118. 13. In R v Sukadeve Singh [2006] EWCA Crim. 660, [2006] 2 Cr.App.R 12, Rose LJ giving the judgment of the court said this at paragraph 14: "When sections 114 and 118 are read together they, in our judgment, abolish the common law hearsay rules (save those which are expressly preserved) and create instead a new rule against hearsay which does not extend to implied assertions. What was said by the callers in Kearley would now be admissible as direct evidence of the fact that there was a ready market for the supply of drugs from the premises, from which could be inferred an intention by an occupier to supply drugs. The view of the majority in Kearley, in relation to hearsay, has been set aside by the Act ." In Sukadeve Singh various telephone entries were held not to be a matter stated within section 115 but to be implied assertions which were admissible because they were no longer hearsay. 14. The submission made on behalf of the Crown is that the reasoning in that case is applicable here and compels the conclusion in the present case that the relevant part of the conversation is not hearsay and is accordingly admissible without having to meet the conditions in section 114 of the 2003 Act . 15. For the defendant, Mr Lavery submits principally that the words attributed to Barski in the relevant part of the telephone conversation do relate to a matter stated within the meaning of section 115(3) because Barski's purpose in making the statement was both to cause the officers to believe that he could get drugs at the prices in question and to cause the officers to act on the basis that the matter was as stated, that is to say to make purchases accordingly. 16. For our part we have no hesitation in rejecting that submission made by Mr Lavery. We think it plain that the only purpose of the call and of the relevant words of Barski in that call was to discover the availability and price of the amphetamine. It was, as is submitted by Mr Temkin, no more than an inquiry as to availability and price of specific drugs. 17. It seems to us that the submissions made by Mr Temkin as to the inapplicability of the hearsay provisions of the 2003 Act in this case are well-founded. We agree, for the reasons submitted by him and that we have already sufficiently set out, that the evidence to which the prosecution application related was not hearsay and that it was therefore admissible without having to comply with the statutory provisions relating to hearsay. Accordingly, we consider that the Recorder's ruling was wrong in law and we will reverse that ruling. We will hear from counsel as to whether the appropriate further order is that a fresh trial take place in the Crown Court. 18. MR TEMKIN: My Lord, I would make that submission. 19. LORD JUSTICE RICHARDS: Is there anything you can say against it? 20. MR LAVERY: My Lord, I think in my initial application I detailed the strength of the evidence in any case saying there was no direct link to the defendant in this case. I do not know if your Lordships would wish to hear me on that or if you feel that is a matter that should be aired before the trial judge. 21. LORD JUSTICE RICHARDS: Before the trial judge. 22. MR LAVERY: I am grateful. 23. LORD JUSTICE RICHARDS: Accordingly we will make an order that a fresh trial take place in the Crown Court. We are satisfied that it is in the interests of justice for such an order to be made. Is there any further matter? 24. MR TEMKIN: No, my Lord. 25. LORD JUSTICE RICHARDS: The question of reporting restrictions. What, if any, reporting restrictions should be put in place? That there should be no report of the judgment of this court until the fresh trial has taken place? 26. MR LAVERY: Yes, please. 27. LORD JUSTICE RICHARDS: That must be so. (Pause) The point that Openshaw J rightly raises with me is will this evidence not be there in any event before the court at the trial? 28. MR TEMKIN: My Lord, yes. In fact nothing that has been said in open court today was not said in opening and argument at the Crown Court in August. On reflection perhaps there is no reason for reporting to be prevented at this stage. 29. LORD JUSTICE RICHARDS: The case is listed under initials rather than the name, and if that were maintained it would provide a degree of protection. 30. MR JUSTICE OPENSHAW: I can see that there may well be cases where that would be a necessary protection of the process of a fair trial, but I cannot see that that really applies in this case. 31. MR LAVERY: Not given the context of the ruling. 32. LORD JUSTICE RICHARDS: In that case we will make a reporting restriction to the extent that it continues to be referred to as R v MK , but beyond that we will impose no restriction.

2007_12_04-1303.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3150/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3150

0f77f6b1e51afcea063d290990b1a30407fc2453219ad4a3fad45cab4962d6ec

[2014] EWCA Crim 386

EWCA_Crim_386

crown_court

Case No: 2012/06716/B1 Neutral Citation Number: [2014] EWCA Crim 386 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Nicholas Browne QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/03/2014 Before: LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE MITTING and MR JUSTICE SIMON - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Lundrim Gjikokaj Appellant - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 2012/06716/B1 Neutral Citation Number: [2014] EWCA Crim 386 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Nicholas Browne QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/03/2014 Before: LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE MITTING and MR JUSTICE SIMON - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Lundrim Gjikokaj Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Paul Mendelle QC and J A Lyons for the Appellant Bobbie Cheema QC and Tom Little for the Respondent Hearing date: 28 January 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Thomas of Cwmgiedd, CJ: Introduction 1. Between 11.10 a.m. and 11.15 a.m. on the morning of Monday, 6 October 2008, Mr Cima Sogojeva (the deceased), an Albanian national from Kosovo living in a flat at Caroline Court, Golders Green, North London was fatally shot. He sustained six gunshot wounds to the head and torso as well as four stab wounds to the back of his neck. Some three years later the appellant was charged with his murder. On 25 October 2012 the appellant was convicted of that murder at the Central Criminal Court before HH Judge Nicholas Browne QC and a jury. He was sentenced to life imprisonment with a minimum term of 28 years less time on remand. 2. He appeals by leave of the Single Judge on a number of issues, including whether evidence of gunshot residue should have been admitted, whether the judge had given correct directions in respect of the appellant’s account as given in police interviews and whether a direction on alibi should have been given. 3. It is easiest first to set out the respective cases of the Crown and the appellant. I The Crown’s case 4. The Crown’s case was built entirely on circumstantial evidence. (i) The scene of the crime 5. There were no signs of forced entry to the flat. Large amounts of cash were left untouched in the flat - £18,600 in a box and £10,000 in a drawer. Two wallets were left untouched. Two bloodstained knives were found in the kitchen sink, one with the blade bent to almost 90 degrees. The deceased had been dressed in pyjamas. Hot drinks had been prepared for two, as if he was waiting for someone. (ii) The deceased’s financial affairs 6. Although the deceased gave window cleaning as his occupation, he was in reality a professional criminal. He was actively engaged in large scale theft of cash from parking meters and was wanted by the authorities in Kosovo. In June 2008, a few months before he was murdered, the police had raided a safe deposit box which he had owned and £177,000 had been seized. In proceedings in respect of the proceeds of crime the deceased’s brother, Hashim Sogojeva, and the appellant, who was also an Albanian from Kosovo, had dishonestly attempted to assist the deceased in recovering this money. (iii) The appellant’s motive 7. The appellant had borrowed money from the deceased. It was the Crown’s case that he had borrowed a total of £250,000; £110,000 of that had been lent in June 2008. The Crown’s case was that in the weeks before the murder the deceased was frustrated at the appellant’s failure to repay the money. The Crown relied on evidence from text messages, face to face confrontation and the evidence of the deceased’s girlfriend, Sarah O’Connor, as showing the deceased’s demands. It was the Crown’s case that the appellant murdered the deceased to avoid having to satisfy that debt. (iv) The financial position of the appellant 8. The Crown relied on the fact that the appellant had substantial personal business debts; he had also sustained substantial gaming losses. (v) Evidence of opportunity 9. In the course of his interview the appellant accepted that he had driven to the deceased’s flat with his girlfriend, Barbora Andrejkonicova, in a hired black Chevrolet Captiva. He had parked the car near a drain at the junction of Highfield Road (the road in which the deceased’s flat at Caroline Court was) and Brookside Road. He had admitted visiting the deceased’s flat at about 11 a.m. on the morning of 6 October 2008 - the deceased being murdered shortly after that admitted time. The Crown relied on the fact that the appellant had with him Milk Tray chocolate boxes, double wrapped in two plastic bags. It was the Crown’s case that this was designed to look like a quantity of cash which the appellant had told the deceased he was repaying in a text message sent the day prior to the murder. (vi) The finding of bullet shell casings 10. Some bullet shell casings matching the bullets that killed the deceased were left in the flat; some were found in the drain near where the appellant had parked his car. (vii) Gunshot residue 11. Two gunshot residue particles were found in the hired Chevrolet Captiva which the appellant had rented and admitted driving that day. There was expert evidence from Dr Moynehan of LGC Forensics in relation to those particles. We refer to that in more detail at paragraph 26 and following as the admissibility of that evidence was challenged and the judge’s direction on the use the jury might make of the gunshot residue evidence was a main ground of the appeal. (viii) Evidence of the appellant’s lies and bad character 12. It was the Crown’s case that the appellant had lied to the police when he said he only knew about the deceased’s death on the day following the murder. The Crown called the appellant’s ex-wife who said the appellant was aware of the death and had told her about it on the day of the murder. 13. The Crown also relied upon the failure of the appellant to give evidence, his lies in interview and his bad character as evidenced by his money laundering and assistance to the deceased in relation to the safe deposit box. II: The defence case 14. The appellant did not give evidence and did not call any evidence. He relied upon the explanation given in 800 pages of police interviews which had taken place shortly after the murder. (i) His account in interview of his visit to the deceased 15. His account in the interviews was that he admitted driving in the black rented Chevrolet Captiva motor car with his girlfriend, from Reading and then along the North Circular Road in North London to Golders Green. 16. He had stopped at the Shell Service Station on the North Circular and bought the Milk Tray chocolates as a gift for the deceased’s child. That account was supported by CCTV footage showing him leaving the Shell petrol station on the North Circular at 10.51 a.m. That was 7-8 minutes from Caroline Court where the deceased had his flat. 17. His case was that he then went to the deceased’s flat. He gave the deceased £31,000 in cash which was the final instalment of the £110,000 that he admitted owing to the deceased. He also gave the chocolates to the deceased. His case was that he arrived at about 11 a.m. and left 5-10 minutes later. (ii) The independent evidence of timing 18. His case was that the timing of his leaving the flat prior to the murder was supported by other evidence: i) The evidence of Matthew Cass, an expert in photographic imagery, was that a CCTV camera on Golders Green Road had shown a dark vehicle passing at 11.09 a.m. It was said by Mr Tass that the vehicle was most likely a Vauxhall Antara, but he could not exclude the possibility it was a Chevrolet Captiva. ii) The gunshots were heard by Mr Tolomeo, a resident of Caroline Court who had called the police at 11.15 a.m., some 2-3 minutes after hearing the shots. 19. He also relied upon evidence from a witness called by the Crown that he had seen two unidentified men walking very quickly down the stairs from the deceased’s flat after 11.20 a.m. 20. In addition, although this does not appear to have played as significant a part at trial as it did on the appeal, there was cell site evidence which showed that the appellant’s mobile phone was used in Hayes at 11.38 a.m. The evidence of the police (which was agreed) was that it took 28 minutes driving time (exceeding the speed limit by as much as 20 m.p.h. at times) to get from Caroline Court to the appellant’s wife’s house in Hayes. His account was that he used the phone in the house which he had only got into after obtaining keys from the estate agent and charging the battery up. 21. There was evidence of two knives being used to stab the deceased which had been partially cleaned and evidence that the killers had taken time collecting the bullet cases and disposing of them in the drain where they were found. As it was accepted that the appellant was at Hayes at 11.38 a.m., he could not therefore have been the person who committed the murder at 11.15 a.m.; that must have been committed by the two persons seen walking down from the deceased’s flat after 11.20 a.m. (iii) The defence case as to the killing 22. It was further contended that the probability was that the deceased was murdered as a result of his general criminal activity and a blood feud between two Albanian families in the course of which similar violent murders had occurred. The gun used to kill the deceased was not normally available in the UK; the deceased possessed a substantial number of weapons, fearing for his own safety. 23. The appellant also disputed the Crown’s case about his finances. He denied owing him £250,000 and the text referring to 250 was a mistake; it should have read as a much smaller figure. The fact that large sums of cash were left in the flat was inconsistent with the prosecution case that the crime was motivated by the appellant’s debts. 24. The appellant relied on the fact that throughout the proceedings he had answered his bail, consistently denied the offence and was of previous good character. 25. Against that background we turn to the issues in the appeal. III: Ground 1 of the appeal: The evidence of gunshot residue (i) The primary evidence 26. The primary evidence given by Dr Moynehan, a forensic scientist employed by a private supplier of forensic services, LGC, in relation to gunshot residue was not in dispute. 27. The car which the appellant had admitted using on 6 October had been hired by him previously and continued to be used by him between 6 and 15 October. It was then kept at two police storage facilities until it was examined on 24 October. When examined two particles of gunshot residue were found. The one on the front nearside seat was type 1 and the particle on the front offside door handle was type 2. When the deceased’s body and clothing were sampled he had a very high level of gunshot residue type 2 and a small number of gunshot residue type 1 particles. 28. No gunshot residue particles were found on the appellant when he was examined on 17 October. Type 1 and Type 2 gunshot residue are very common types of gunshot residue. 29. There were three possibilities that might explain the presence of gunshot residue: i) The presence of particles was consistent with the appellant being at the flat at the time of the murder. ii) There had been innocent contamination. iii) The particles were there by sheer chance. (ii) The evaluative opinion 30. Dr Moynehan would not give an evaluative opinion in relation to the three possibilities. Where only two particles were found, it was the policy of LGC Forensics that an evaluative opinion could not be given, as two particles were insufficient for that purpose. He was bound by that policy and he could therefore not give an opinion that evaluated the possibilities. 31. The furthest he would go was to say that he would not expect gunshot residue to remain on the appellant in the lapse of time between 6 and 15 October. As to the car, the more the car was used the more opportunity there was for gunshot residue to be lost. (iii) The admissibility of the evidence 32. Objection was taken on the appellant’s behalf to the admissibility of that evidence on a number of different bases. It was said that it had no probative value and did not allow for a reliable conclusion. It was also evidence that should be excluded under s.78 of the Police and Criminal Evidence Act 1984 . In a ruling given on 3 October 2012 the judge held that the evidence was admissible. 33. In considering the question of admissibility of the evidence of gunshot residue, it is important to bear in mind the distinct tasks that a forensic scientist can perform. In this case Dr Moynehan was able to give a primary scientific opinion based on a recognised and reliable scientific method that the gunshot residue found in the car was of the same two types of gunshot residue that had been found on the body and the clothing of the deceased; and that there were three possibilities for the presence of the gunshot residue. 34. Given the fact that gunshot residue disperses quite quickly and the risks of contamination, LGC Forensics had adopted the policy of declining to provide an evaluative opinion in the circumstances which we have set out. Thus when determining whether the expert evidence should be admitted, it was essential to draw a distinction between the primary scientific opinion and an evaluative scientific opinion. 35. It is clear, in our view, that the primary scientific opinion was admissible. It was admissible to show, in a case where the evidence was circumstantial, that it was not open to the appellant to say there was an absence of scientific evidence connecting him with the crime. The scientific evidence was consistent with the appellant being there and he could not therefore claim that the absence of forensic evidence showed he could not have been there and fired the shot. The primary scientific evidence was therefore plainly admissible for that purpose. 36. In fact the use of the evidence was similar to the use in the second case heard with R v Dlugosz [2013] 1 Cr App R 32 , namely the case of Pickering : see paragraphs 77-80 and paragraph 85 of that judgment. 37. As the only evidence that Dr Moynehan was prepared to give was the primary evidence which was not in dispute and, as it was plainly relevant, it is difficult to see how there could be any basis for excluding it under s.78 of the Police and Criminal Act 1984. (iv) The direction of the judge on use the jury might make of the primary scientific evidence 38. As emerged during the course of argument on the appeal, the real issue related to the direction to the jury on the use that they might make of the primary scientific evidence. Before turning to examine the directions given by the judge, it is important to amplify our brief description of the other evidence relating to the three possibilities we have set out. i) Evidence was led by the Crown which, as we have stated, showed that the shell casings that had been thrown into the drain matched the bullets found in the deceased. It was the Crown’s case that as the appellant admitted parking the car near that drain and as the gunshot residue was found in the passenger seat in which he admitted he had sat, the jury were entitled to take into account the presence of the two particles of gunshot residue as supporting that case. ii) The case advanced on behalf of the appellant was not confined to chance. On 2 October 2008, Constable James, an officer attached to the Thames Valley Police Tactical Firearms Group, saw a minor road traffic accident involving the appellant in a street in Reading. He spoke to the appellant. Constable James asked the driver to get out of the vehicle almost immediately he had stopped the car and so the conversation which developed was away from the Chevrolet. He did not recall touching the car at all. Constable James had last fired a firearm on 28 July 2008. However on the occasion he stopped the appellant in Reading, he was wearing body armour although he was not armed. 39. The directions the judge gave to the jury as to the way in which they might use the evidence was as follows: “In the opinion of his [Dr Moynehan’s] laboratory you cannot reliably interpret two particles. They may be there quite by chance. In giving that opinion he does not consider other evidence in the case. He considers the two particles in isolation and his opinion is … looking at his two particles in isolation, no reliable interpretation can be given to the finding of a low level of GSR [gunshot residue] on the samples from the Chevrolet.” It is clear that in that passage the judge was simply explaining to the jury that Dr Moynehan was not giving an evaluative opinion. 40. It was submitted to us by Mr Mendelle QC that Dr Moynehan had in fact looked at the whole of the surrounding circumstances, including the finding of the bullet casings in the drain. It was therefore impermissible for the judge to have directed the jury in the terms in which he did. The judge had therefore been quite wrong when he had gone on to say: “The central point is this, is it not: bear in mind that Dr Moynehan can only give his opinion from the evidence only at his disposal. He cannot go beyond the evidence relating to the two particles, and because that is a low amount of particles, he must necessarily be cautious. You can go further, as I have already observed. You can add one limb of evidence relating to firearms to another limb of evidence relating to firearms. That is your privilege and your right. You can aggregate evidence, Dr Moynehan cannot. ….” 41. The judge had then added: “But let me add this: if you think that either the possibility of innocent contamination by reason of the incident in Reading on 2 October or by the sheer chance of there being two particles in the vehicle are possibilities which you, the jury, cannot rule out, then my direction to you is absolutely clear, please ignore this evidence. It has no value in the case at all. If you, on the other hand, are driven by other firearms evidence in the case and are satisfied and sure that the first possibility, namely that the two particles are on and in that Chevrolet because the defendant was in close proximity to the firearm which murdered the deceased, can you use this evidence as being consistent with and confirmatory of that other firearms evidence?” 42. We cannot accept the submission advanced by Mr Mendelle QC. Dr Moynehan had given primary evidence in relation to the gunshot residue and set out the three possibilities to explain its presence. The judge had then told the jury that they could, if two conditions were satisfied, use that primary evidence as evidence consistent with the appellant being in close proximity when the gun was fired. The two conditions were: (1) they were sure that the other firearms evidence in the case, particularly the finding of the bullet casings in the drain near to which the appellant had parked the Chevrolet, enabled them to conclude that the appellant was in close proximity to the firearm which murdered the deceased; and (2) they could rule out the possibility of contamination through the incident in Reading or sheer chance. 43. The judge was not inviting them to reach an evaluative opinion where the forensic scientist could not, but inviting them to consider this piece of primary forensic evidence as part of the circumstantial case. In our judgment for the reasons we have set out, the jury were entitled to conclude, if the conditions the judge had set out were satisfied, that the evidence was consistent with the appellant being present when the gun was fired at the deceased. 44. The judge, however, added that the jury could treat the evidence as “confirmatory”. It is evident from the context in which he used this term, that he meant that they could aggregate the primary scientific evidence to the other evidence as part of the circumstantial evidence in the case. It would have been better if he had not used the term “confirmatory” and had continued to use the term “aggregate”. Nonetheless we consider that the jury must have understood the term in the context in which it had been used – namely it was another part of the circumstantial evidence in the case which could be aggregated in the sense he explained. 45. Thus although the direction could have been better crafted, we do not consider there was a misdirection, viewed in the context as a whole. IV: Ground 2: The direction in relation to the police interviews of the appellant 46. As we have set out at paragraphs 14-15, the appellant was extensively interviewed by the police. An edited version of those interviews was put before the jury. (i) The first direction given by the judge 47. In his direction to the jury when the judge turned to the defence case he gave them the usual direction in a case where the defendant has not given evidence. He then continued: “However, the defendant’s silence in court is relevant to your consideration of the case in two ways. One, there is no evidence before you from him capable of contradicting, undermining or explaining the evidence for the prosecution. Although what the defendant said in his many interviews is evidence of his reaction at the time, particularly to past events, it is simply a series of assertions made by a defendant on an occasion when he was not giving evidence.” (ii) The submission of the appellant on the first direction 48. It was submitted by Mr Mendelle QC that, when the judge told the jury that his account in interview was only evidence of his reaction at the time and was otherwise simply a series of assertions, that was a clear misdirection. As the interviews had been relied upon by the Crown, the interviews were partly exculpatory and partly inculpatory. They therefore constituted a mixed interview and in accordance with the decisions in Duncan (1981) 73 Cr. App. R. 359 , Sharp (1988) 86 Cr. App. R. 274 and Aziz (1995) 2 Cr. App. R. 478 , the judge should have directed the jury that the whole statement, both the inculpatory parts and the exculpatory parts, must be considered by them in determining where the truth lay. 49. This point had been expressly raised with the judge at the conclusion of the summing-up. It was clear that what had been said by the judge had been taken from page 287 of the 2010 Bench Book. The Crown accepts that that passage in the Bench Book deals with a case where the whole of the interview was self-serving, not where there was a mixed statement of the type in this case. 50. When Mr Mendelle QC pointed out that the judge had failed to take into account Sharp and Aziz , the judge said: “It is clearly what the bench book is telling judges to say. I am reading out my note, which I am pretty sure comes from the bench book: “It is simply a series of assertions made by D on an occasion when he was not giving evidence.” If you want to complain you have to complain to the Court of Appeal Criminal Division. Because that is what I routinely do and I have not had any indication from the higher court that that is wrong. Yes.” 51. Unfortunately no-one pointed out to the judge that an illustration of the correct direction on which the judge should have crafted his direction could be found at page 288 of the Bench Book. (iii) The whole of the judge’s direction 52. However, it is necessary to see what the judge said overall. After giving the direction in relation to a defendant not giving evidence as we have set out at paragraph 47, he turned to give the direction in relation to good character. He based his direction on a standard form of the direction saying: “Good character … is relevant to your consideration of this case in two ways. Firstly the defendant answered all the questions put to him by the police. His good character is a positive feature about him which you should take into account when considering whether you accept what he said in his interviews … I must make this qualification as to his good character which is relevant to the issue on whether or not you believe his account to the police. He has in his account to the police and in the documents which we have seen and looked at admitted a conspiracy to pervert the course of public justice in relation to the safety deposit box matter …” 53. It is clear from this second passage that the judge was plainly directing the jury that they could consider whether they accepted and believed what the appellant said in the interviews. The jury must have understood from that that they were to consider the interviews as part of the evidence in the case in deciding where the truth lay. 54. The judge then told the jury that it was his duty, as the appellant had not given evidence, to give them some assistance about what the appellant had told the police. He then went through the 200 page summary, highlighting the important parts of the appellant’s account of the events. 55. Looking therefore at the whole of the summing up, it is clear that the judge put the whole of the appellant’s account before the jury and that, save in the one passage to which Mr Mendelle QC referred, told them to consider whether they believed that account in deciding where the truth lay. Viewed as a whole, therefore, we have concluded that the obvious error made by the judge in the direction set out at paragraph 47 did not amount to a material misdirection, when the whole of the directions and the summing up is considered. V. Ground 3: Should the judge have given an “alibi” direction 56. The appellant’s case was that he had left the deceased’s flat at Caroline Court between 11.05 a.m. and 11.07 a.m. and, as we have said, was driving back to Hayes at the time the deceased was murdered. 57. The appellant’s defence statement did not refer to this an “alibi”. No evidence was called in support of any alibi. The draft directions given to counsel for the Crown and the defence did not refer to alibi. No objection was taken. It was not pointed out that such a direction should have been given. 58. At the conclusion of the summing-up, Mr Mendelle QC submitted that an alibi direction should have been given on the basis that it was the appellant’s case that he was elsewhere at the time; that was an alibi and that the Crown had to disprove it. 59. It was accepted by Mr Mendelle QC that the judge had not understood that alibi formed the central feature of the defence case; and that there was no rule of law requiring a judge to give such a direction where a defendant relied on an alibi. 60. In our judgment there was plainly no need to give any alibi direction in this case. The defence case was that the appellant had left the deceased’s flat shortly before the murder was committed. This was not evidence in support of an alibi: see Johnson [1995] 2 Cr App R 1 . This was not a case where the jury seemed in danger of supposing that, because an alibi had been put forward by the defence, the burden must be on the defence to prove it. It is plain that the jury understood that it was for the Crown to prove that the appellant was present at the time the deceased was murdered and had not left at the time he contended and before the murder occurred. VI: Ground 4: the exclusion of evidence in relation to a blood feud 61. As we have set out at paragraph 22, it was the defence case that the deceased had various enemies due to his criminal activities. It was suggested that prime amongst the likely alternative persons who might have murdered the deceased were members of a rival criminal family – the Muqiqis, who were involved in a blood feud and turf war with the deceased. 62. Evidence was admitted of three incidents agreed to be related to the feud as evidence relating to the background motive under s.98 of the Criminal Justice Act 2003 and following the decision of this court in Sule [2012] EWCA Crim 1130 . i) On 16 April 2005 the deceased was involved in a knife fight in a street in London with a member of the Muqiqi family and their gang. ii) On 19 April 2005 the deceased’s brother was shot and stabbed in Kosovo by two members of the Muqiqi family. iii) On 4 November 2005, again as a result of the incident on 16 April 2005, another brother of the deceased shot and killed a member of the Muqiqi family, Xhevat Muqiqi, in Kosovo. The brother was convicted of that murder by a court in Kosovo. 63. The defence sought to refer to another incident said to have been linked to the feud which had occurred on 18 November 2002 in Kilburn, North London. It was said that two members of the Muqiqi family, including Xhevat Muqiqi, had shot and beaten a man known as Esat Haziri who was shown in police intelligence to be linked as a known associate of the deceased. The deceased’s brother, Hashim, had, when asked by the police about the deceased’s death, volunteered the information about the 2002 attack in Kilburn in the context of a blood feud existing between the two families. It was contended that this incident was part of the feud, that it showed the feud was of long standing and that it was not limited to the matters in 2005. 64. The Crown opposed any evidence being given in relation to the 2002 incident in Kilburn. In a ruling given on 4 October 2012 the judge, after considering the CHIS report, concluded that there was not a scintilla of evidence which lent support to the proposition there was any connection between the death of the deceased in 2008 and that incident. Everything pointed to the incidents being unconnected. 65. We see no reason to question the correctness of the ruling of the judge on this issue; there was ample material on which he could have formed the view that the incident was unconnected with the subsequent violence in 2005 or to the killing of the deceased in 2008. VII: Ground 5: alleged incorrect summary of the appellant’s finances 66. We have referred at paragraphs 8 and 23 to the role of the appellant’s finances as part of the circumstantial evidence in the case. Evidence was given by the appellant’s ex-wife, a police financial investigator and Mr Nilesh Patel, the appellant’s ex business partner in a business venture in relation to the LV Lounge, part of the George Hotel in Reading. The evidence in relation to the LV Lounge was not as clear as it should have been, as the financial investigator looked at records which Mr Patel said were not the complete records. 67. The evidence given also included evidence of gambling by the appellant at casinos; he used his credit cards to finance these. 68. In his summing-up the judge reviewed the evidence in relation to financial matters. As he explained there were sub-headings: (i) the LV Lounge in Reading; (ii) the safe deposit box; (iii) the £100,000 gift or loan; (iv) the gambling habit; (v) credit card debt; (vi) money in the bank account; (vii) the evidence suggesting that the defendant owed the deceased a very significant sum of money. He then reviewed the evidence under each of those headings in turn. 69. Under the fourth heading, when looking at gambling, the judge set out the evidence of substantial betting. He then referred to the fifth heading, credit car debt, and set out the details of that. He summarised the credit card debt as £34-35,000 and then added: “Add that to the gambling. This is now, on any view, members of the jury, a six-figure debt. It is £100,000 basically. Whichever, being charitable to the defendant, it is a significant sum. Those figures and you can see, they are taken at the time which we need to concentrate on, and put under the microscope. That is autumn 2008.” 70. The point raised by the appellant was that the judge had failed to appreciate that the sum the appellant lost gambling was not a debt, but expenditure that was accounted for in the money flows from his bank account and charged to his credit card. The judge was asked to clarify that matter and said to the jury: “Do bear in mind the point about double counting for gambling. If it reduces the figure, so be it. You have heard the argument put to the witness by Mr Lyons on the defendant’s behalf. I do not resile from telling you yesterday that the debt is still substantial.” 71. It is said on behalf of the appellant that this did not sufficiently correct the error. 72. It is evident that the evidence in relation to the LV lounge was not clear; the judge summarised the conflicting evidence as to whether the venture was profitable or not. He told the jury that it was for them to decide, but they might regard it as the least important part of the evidence. On one reading of the summing up, the judge may not have dealt as clearly as he might have done with the relationship between the credit cards and the gambling debts, but what he said to the jury in the passage we have set out at paragraph 70 was sufficient to clarify the matter. VIII: Conclusion 73. The course of this appeal demonstrates again the need in a complex and serious case of this kind for clear directions; the Bench Book is extraordinarily useful, but as it itself makes clear, directions have to be crafted to suit the circumstances of each case. 74. Although for the reasons set out, each of the specific grounds relied on fails, it is necessary for us in the circumstances, particularly because of our conclusions in respect of grounds 1 and 2, to consider the overall safety of the conviction. 75. In our judgment, the whole of the evidence, the case for the Crown and for the appellant was fairly put before the jury. There was strong evidence against the appellant, but there were issues on the timing of the events between 10.51 a.m. when the appellant was shown leaving the Shell service station on the North Circular and the use of the phone in the vicinity of Hayes at 11.38 a.m. that had to be carefully considered. We have very carefully ourselves considered that evidence and in particular the location of the cell site evidence that simply shows a call was made in Hayes at 11.38 a.m.; it does not show that he was at his wife’s home. We consider that the evidence of the timings is sufficiently consistent with the remainder of the evidence, that the evidence of the timings in the period between 10.51 a.m. and 11.38 a.m. as relied upon by the appellant cannot cast doubt on the safety of the conviction. 76. We therefore dismiss the appeal.

2014_03_11-3375.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/386/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/386

211c1374927cc899a1f806a230f06af2b1aa896c506a2bf08a90664eb722035d

[2021] EWCA Crim 1674

EWCA_Crim_1674

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 202101267/A4 [2021] EWCA Crim 1674 Royal Courts of Justice Strand London WC2A 2LL Tuesday 2 November 2021 LADY JUSTICE CARR DBE MR JUSTICE JEREMY BAKER HIS HONOUR JUDGE KATZ QC (Sitting as a Judge of the CACD) REGINA V MARK FOLEY __________ 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 J REES QC appeared on behalf of the Applicant _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1. On 1 March 2021 the applicant pleaded guilty to two offences before Johnson J ("the Judge") as follows: count 4, an offence of consent or connivance in the commission of an offence, contrary to section 33(1)(c) and 33(6) of the Environmental Protection Act 1990 or neglect to which that offence was attributable, contrary to section 33(1)(c) and 33(6) and 157(1) of the Environmental Protection Act 1990; count 16, an offence of making false or misleading statements, contrary to section 44 of the Environmental Protection Act 1990. 2. Following a Newton hearing at which the applicant's basis of plea was rejected, the Judge imposed sentences of two years three months' imprisonment on count 4 and 20 weeks’ imprisonment on count 16, such sentences to run concurrently. 3. This is the applicant's renewed application for leave to appeal against sentence for which purpose he has had the benefit of representation from Mr Rees QC acting pro bono . The facts 4. The applicant, now 64 years old, was sole director and the majority shareholder of ME Foley Contracts Ltd ("MEFCL"). MEFCL was a special purpose vehicle set up by the applicant to purchase Stowey Quarry, a site covering 8.7 hectares set amongst agricultural land in the Chew Valley, Somerset ("the Site"). 5. Through MEFCL the applicant was responsible for management of the Site. In 2012 the Environment Agency ("EA") granted MEFCL a permit to operate waste operations and construction work at the Site. The permit limited the total quantity of waste that could be stored or used at the Site to 100,000 tonnes. 6. The applicant's previous convictions included a conviction in 2015 for permitting the contravention of the requirements of an environmental permit in that year for which he was fined £2,900 and ordered to pay costs in the sum of £2,200. The offending on count 4 7. The applicant's offending on count 4 covered the period from 1 January 2016 to 31 December 2016. During the course of the year local residents had become concerned at what was being stored and deposited at the Site, as well as concerned at the increase in activity of drivers around the Site, those drivers being clearly unfamiliar with the area. The residents noticed offensive odours coming from the Site which appeared to be odours from decomposing household waste. 8. On 1 June 2016, the EA carried out a site inspection. It found extensive evidence of non-permitted waste. A Compliance Assessment Report ("CAR") was sent on 10 June 2016 advising the applicant to stop taking in non-permitted waste and to arrange immediately for such wastes already on site to be removed. Further site inspections took place on 17 June, 25 August and 13 September 2016. On each occasion very large amounts of non-permitted waste were found, including new waste. Attempts had been made to conceal the waste with a covering of a top layer of sandy material. Further CARs were issued giving deadlines for removal. 9. On 13 October 2016 another site inspection took place. Yet again large quantities of non-permitted material, including new material, were found. The applicant was given a deadline of 31 January 2017 for removal. He emailed the EA to indicate that no new inert waste was being accepted and that work had begun to remove the non-permitted waste. However, MEFCL's permit was suspended. A visit by the EA on 18 November 2016 revealed the Site to be closed with no one in attendance. The applicant was reminded in a further letter of his obligation to remove the non-permitted waste. 10. The EA survey suggested that approximately 75,000 cubic metres of the Site had been filled and that during 2016 almost 100,000 tonnes of unpermitted waste had been deposited. The Site remained highly contaminated with carcinogenic, mutagenic and eco-toxic materials, acid and putrid odours were present, alongside occasionally strong hydrogen odours. Cleaning up the site containment, said the survey, would require treatment for 30 years with an estimated cost of over £13 million. The cost of removal of the waste was estimated at around £25 million. Count 16 11. The applicant's offending on count 16 covered the period from 30 October 2017 to 1 December 2017. 12. In December 2016 the applicant wrote back to the EA stating that MEFCL had acted immediately to ensure that the non-permitted waste was removed and the duty of care tickets for the removed waste would be posted to the EA's office. 13. The applicant was first interviewed under caution in July 2017. In October 2017 he wrote to the EA stating that 60 loads of waste had been removed from the Site and that the remaining non-permitted waste would be removed in due course. 14. On 30 November 2017 the applicant emailed the EA with copies of 60 Waste Transfer Notes (“WTNs”) covering the period from 17 October to 28 October 2017. 45 of those WTNs were false. The purported transfers of waste had not actually taken place. Plea and sentence 15. The applicant was not charged until September 2019. He indicated guilty pleas in February 2021 and entered guilty pleas in the following month. His guilty plea to count 4 was entered on the basis that his actions had been negligent rather than deliberate. He pleaded guilty to count 16 on the basis that his actions had been reckless but he had not known the WTNs to be false. 16. His bases of plea were not accepted. Following a three-day Newton hearing the Judge ruled that on count 4 the applicant had acted deliberately, and that on count 16 he had known that the WTNs were false. 17. The applicant fell to be sentenced by reference to the Sentencing Council Guideline on Environmental Offences for Individuals ("the Guideline"). The Judge placed the applicant's culpability at the highest level, concluding that he had intentionally breached the law. He also placed harm at the higher end of Harm Category 1. In mitigation it was noted that the applicant suffered chronic illness, including through a form of blood cancer. The supportive statements provided were also noted and the applicant's remorse was accepted as genuine. It was recognised that the case had been hanging over the applicant for five years, not due to any shortcomings on his part, and it was recognised that the prison conditions in the pandemic would be harsher than normal. Grounds of appeal 18. Mr Rees for the applicant concedes that the offence on count 4 was deliberate Category 1 offending but contends that the Judge erred in assessing the harm at the "highest end" on the basis, in short, that this was only a risk of harm case; no actual harm was caused. Reliance is placed on the Guideline where it is stated that risk of harm is less serious than actual harm and will normally justify moving down to the next category of harm. Mr Rees emphasises his submission that the Judge failed adequately to reflect the true nature of this case. Further, there had been unlawful waste on the Site for many years predating the indictment period, so it was not possible to ascertain the precise extent of pollution during the indictment period. There was, given the background to the Site, little or no damage to amenity value. Costs of remediation were also only a risk element, not an actual harm factor. Mr Rees points to the fact that the falsity of the WTNs could not affect the proper categorisation of harm for the purpose of count 4. Thus, the over-arching submission is that the Judge ought to have taken a starting point before assessing aggravating and mitigating factors of less than 18 months. 19. Mr Rees accepts that the Judge correctly identified aggravating factors alongside mitigating factors. Balancing those matters against each other, it is said that the Judge should have arrived at a lower figure than the term of two years and six months before credit for guilty plea. In short, the total term of two years and three months' custody imposed by the Judge is said to be manifestly excessive. Discussion and analysis 20. As indicated, the Judge's categorisation of the offending for the purpose of the Guideline is rightly not challenged. Under the Guideline, the starting point was 18 months' custody with a range of one to three years. The question for us is whether it is arguable that a term of two years and six months' imprisonment before credit for guilty plea was manifestly excessive. 21. We have concluded that it is not. First, the Judge was well-placed to sentence the applicant having presided over his three-day Newton trial. He heard all evidence from two witnesses from the EA, alongside written evidence, and also oral evidence from the applicant. He had the benefit of an extensive bundle of documentation, including the permit for waste disposal, the CARs setting out the findings of the EA following its attendances, emails and other relevant correspondence. 22. Secondly, the Judge was entitled to place culpability at the top end of the scale even acknowledging, as he did, the applicant's health problems, the fact that he had to some extent handed over day-to-day control of the Site and that there had been a degree of misunderstanding as to the amount of waste permitted. 23. Thirdly, as for harm the Judge did not place harm at the “highest” end, rather at the “higher” end. He was entitled to do so, even though, as he acknowledged, there had been only a risk of as opposed to actual harm to human and animal health and to flora. It is conceded that on the facts here the Judge was not required to move down to the next category of harm. The polluting material was on the Site in vast quantities, across the width and breadth of the Site and in part of a dangerous nature. The Site remained highly contaminated with material that was carcinogenic and mutagenic. Significant quantities of landfill gas were being generated. Leachate seepages were present, alongside acid and putrid odours. There had been alarm within the community and the Judge found in terms that there had been a major adverse effect to the amenity value of the land. Further, the costs of remediation would, so he found, run on any view into many millions of pounds. 24. As indicated, the Judge acknowledged the relevant mitigating factors including remorse, positive character references, chronic ill-health, the impact of the pandemic on prison conditions and the significant delay in the case. Against those were the following aggravating factors: the applicant's previous conviction in 2015, his failure to respond to Site visits and warnings, the evidence of wider community impact, the location of the Site near to important water resources (albeit that there was only a risk of contamination in this regard) and concealment of the unauthorised activity. 25. Standing back, in our judgment it is not arguable that the Judge was not entitled to adopt a term of two years and six months before credit for guilty plea on count 4, a term well within the relevant sentencing range for the relevant category. It is important to remember that the Judge chose to impose a concurrent sentence for the offending on count 16. The submission of WTNs was not only dishonest but also amounted to a major interference with the regulatory regime. It simply cannot be said that an overall sentence of two years and three months' imprisonment was manifestly excessive when set against the totality of the applicant's offending. 26. For these reasons the renewed application is refused. We repeat our thanks to Mr Rees for his helpful submissions and assistance. 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_11_02-5221.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/1674/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/1674

207e5f3ca7db1ec01f41041a7e19623ea6fc245be30e1993bf8f3c6d1acaec13

[2020] EWCA Crim 827

EWCA_Crim_827

crown_court

Neutral Citation Number: [2020] EWCA Crim 827 Case No: 201902695 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOD GREEN HH Judge Auerbach T20180022 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/07/2020 Before: LORD JUSTICE HOLROYDE MR JUSTICE LAVENDER and HH JUDGE CHAMBERS QC Sitting as a Judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - Between: BIFFA WASTE SERVICES LIMITED Appellant - and - THE QUEEN Respond

Neutral Citation Number: [2020] EWCA Crim 827 Case No: 201902695 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOD GREEN HH Judge Auerbach T20180022 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/07/2020 Before: LORD JUSTICE HOLROYDE MR JUSTICE LAVENDER and HH JUDGE CHAMBERS QC Sitting as a Judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - Between: BIFFA WASTE SERVICES LIMITED Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Dinah Rose QC and Mr R Banwell (instructed by CMS Cameron McKenna Nabarro Olswang LLP ) for the Appellant Mr S Mehta (instructed by Environment Agency ) for the Respondent Hearing dates: 23rd, 24th June 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment will be handed down by the judge’s clerk remotely by circulation to the parties’ representatives by email and release to Bailii. The date and time for hand-down is deemed to be 10:00am Friday 03/07/2020. Lord Justice Holroyde: 1. On or about 14 May and 18 May 2015 the appellant company despatched a total of about 175 tonnes of waste material, said to be paper waste, from its recycling facility at Edmonton in north London. The waste material was destined for two processing plants in China, but travelled only as far as Felixstowe, where inspections of sample bales revealed the presence of various contaminants in both consignments. The appellant was charged with two offences of transporting waste for recovery in a country to which the OECD Decision does not apply, contrary to regulation 23 of the Transfrontier Shipment of Waste Regulations 2007. On 20 June 2019, after a trial in the Crown Court at Wood Green before HH Judge Auerbach and a jury, the appellant was convicted of both offences. It was subsequently sentenced to fines totalling £350,000, made subject to a confiscation order in the sum of £9,912 and ordered to pay the statutory surcharge of £120 and prosecution costs of £240,000. It now appeals against its convictions by leave of the single judge. The legal framework : 2. It is convenient to begin by outlining the relevant legal framework. The UK is a party to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989. The preamble to that Convention makes clear that it reflected international concerns about the risks of damage to human health and to the environment caused by the transboundary movements of hazardous wastes and certain other wastes (including “wastes collected from households”: see Article 1.2 and Annex II). It also records that the parties to the Convention were – “convinced that States should take necessary measures to ensure that the management of hazardous wastes and other wastes including their transboundary movement and disposal is consistent with human health and the environment whatever the place of disposal” and “convinced also that the transboundary movement of hazardous waste and other wastes should be permitted only when the transport and the ultimate disposal of such wastes is environmentally sound”. 3. In 2001 the Organisation for Economic Cooperation and Development adopted a decision (“the OECD Decision”) which developed the framework set by the Basel Convention. China is not a country to which that Decision applies. 4. The European Community became a party to the Basel Convention in 1994 and gave effect to it by establishing rules now embodied in EU Regulation 1013/2006 (“the 2006 Regulation”), which is directly applicable in the United Kingdom. The first recital to the 2006 Regulation makes clear that its main and predominant objective is the protection of the environment, its effect on international trade being “only incidental”. Article 2 of the Regulation defines “recovery” in terms which include the recycling of paper. It goes on, at paragraph 8, to define ‘environmentally sound management’ as meaning – “taking all practicable steps to ensure that waste is managed in a manner that will protect human health and the environment against adverse effects which may result from such waste”. 5. Article 36 of the 2006 Regulation, so far as is relevant for present purposes, provides – “ Exports prohibition 1 Exports from the Community of the following wastes destined for recovery in countries to which the OECD Decision does not apply are prohibited: (a) wastes listed as hazardous in Annex V; (b) wastes listed in Annex V Part 3; … (g) wastes which the competent authority of dispatch has reason to believe will not be managed in an environmentally sound manner, as referred to in Article 49, in the country of destination concerned.” 6. Annex V of the 2006 Regulation is divided into three parts, preceded by introductory notes referred to as the “chapeau”. The chapeau indicates that a check must first be made to see whether a particular waste is listed in Part 1, which contains two lists: List A identifies hazardous wastes to which the export prohibition applies; List B identifies wastes to which that prohibition does not apply. If the waste concerned is not included in either of those lists, it is then necessary to see whether it is listed amongst the wastes identified in Parts 2 and 3. If it is, the export prohibition applies. The chapeau goes on to say, in paragraph 3: “Wastes listed in List B of Part 1 or which are among the nonhazardous waste listed in Part (i.e. wastes not marked with an asterisk) are covered by the export prohibition if they are contaminated by other materials to an extent which (a) increases the risks associated with the waste sufficiently to render it appropriate for submission to the procedure of prior written notification and consent, when taking into account the hazardous characteristics listed in Annex III to Directive 91/689/EC; or (b) prevents the recovery of the waste in an environmentally sound manner.” 7. The categories of waste listed in Part 1, List B – commonly referred to as “green list” waste - include category B3020: “paper, paperboard and paper product wastes”, which is defined as – “The following materials, provided they are not mixed with hazardous wastes: Waste and scrap of paper or paperboard of: - unbleached paper or paperboard or of corrugated paper or paperboard - other paper or paperboard, made mainly of bleached chemical pulp not coloured in the mass - paper or paperboard made mainly of mechanical pulp (for example, newspapers, journals and similar printed matter) - other, including but not limited to 1 laminated paperboard, 2 unsorted scrap”. Part 3 includes category Y46: “Waste collected from households”. For convenience, we shall refer to this as “Y46 household waste”. Thus the export prohibition applies to Y46 household waste but not to B3020 paper. 8. Domestic effect has been given to the 2006 Regulation by the Transfrontier Shipment of Waste Regulations 2007 (“the 2007 Regulations”). As we have indicated, the appellant was charged under regulation 23 of those Regulations, which cross-refers to the 2006 Regulation and provides: “ 23. Prohibitions on export of certain waste for recovery to non-OECD Decision countries A person commits an offence if, in breach of Article 36(1), he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply”. 9. The offence created by regulation 23 is one of strict liability: there is no defence such as reasonable practicability or the taking of all reasonable precautions. It is triable either way. On conviction on indictment the maximum sentence is imprisonment for two years and/or a fine. 10. It is settled law, and common ground in this appeal, that in this context the exporting of a consignment begins when it starts its journey: see, eg, R v KV [2011] EWCA Crim 2342 , [2012] Env.L.R.15 . Thus in circumstances such as this case, if waste is being exported in breach of Article 36, the offence is committed when it leaves the recycling facility, even though it is still in the United Kingdom. 11. In Beside BV & Besselsen v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [1999] Env.L.R. 328 the European Court of Justice held that waste which is collected as household waste can become green list waste. At [32-34] of its judgment, the court said: “32. Therefore, ‘municipal/household waste’ does not cease to be ‘amber waste’ and therefore does not come within the green list unless it has been collected separately or properly sorted. 33. As is clear from the introduction to the green list of waste, waste may not, regardless of whether or not it is included on that list, be moved as green waste if it is contaminated by other materials to an extent which (a) increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red lists, or (b) prevents the recovery of the waste in an environmentally sound manner. 34. The answer to the first question must therefore be that the expression ‘municipal/household waste’ referred to under AD160 in the amber list in Annex III to the Regulation, as amended by Decision 94/721, includes both waste which for the most part consists of waste mentioned in the green list in Annex II to the regulation, mixed with other categories of waste appearing on that list, and waste mentioned on the green list mixed with a small quantity of materials not referred to on that list” 12. In R v Ideal Waste Paper Co Ltd [2011] EWCA Crim 3237 ; [2012] Env. L.R. 19 the facts were not dissimilar to this present case. The trial judge had rejected a submission that the proceedings should be stayed as an abuse of the process because the test to be applied, in deciding whether waste should be classified as prohibited from export, was so imprecise as to breach the requirements of accessibility and certainty in the criminal law. This court dismissed an appeal against that ruling. It accepted that what starts as Y46 household waste can, by proper sorting, become B3020 paper. It emphasised that a particular consignment of waste must be categorised as either Y46 household waste or paper: it cannot be in both categories. At [42-44] Pill LJ, giving the judgment of the court, said: “42. We accept that a very high standard is required of operators in this field. We are mindful of the difficulties faced by commercial operators conducting what is an important and valuable business, not only for them but in the public interest. We are mindful of the extreme difficulty, to which reference has been made, in setting a helpful test of general application when considering and deciding what comes within the definition of household waste. We are not unmindful of the difficulties involved in juries deciding this issue. Juries are familiar with having to decide issues of fact, what evidence to accept. They ae accustomed to considering the state of mind of witnesses and defendants, whether they were acting dishonestly, whether there was consent. A decision as to whether household waste has been converted into waste paper is a decision of a somewhat different kind from those they are normally called upon to make . 43. There are those who take the view that juries are not the most appropriate forum for trials in environmental cases such as this. We express no view about that, but we do not understate the difficult task of a jury in making a decision and the difficult task of the judge in summing up the case to them. 44. Having said that, we are quite unpersuaded that to proceed with a trial as to whether this particular consignment is proved to be household waste is an abuse of the process of the court. The judge will have regard to the 2006 regulation and the 2007 Regulations when giving his directions to the jury. We would contemplate his raising the possibility of a breach being so small as to be minimal and not preventing waste from ceasing to be household waste and becoming waste paper under B3020. That will depend on the circumstances, including the nature and the quality of the contamination and the amount of it. We are confident that a judge will be able to give sufficient directions to a jury to enable them to make the decision as to whether a particular consignment is properly described as household waste and to perform their task by applying that test to the facts.” The facts : 13. Turning to the facts, the appellant provides waste management services to the public and commercial sectors, including waste collection and waste recycling and disposal. Amongst other commercial activities, it sells specific types of waste, including paper waste, to be recycled into new products. A substantial proportion of paper waste is sold to customers in other countries, and the appellant emphasises that such sales are important because the United Kingdom does not have the capacity to recycle as much waste paper as it produces. 14. The appellant had been exporting what it contended was paper waste to the two Chinese mills to which this waste was destined since 2010 and 2011, exporting 110,000 tonnes to China in 2015 alone. These shipments had been regularly inspected in England by the agents of the Chinese mills (referred to at trial as the brokers) and in China by the Chinese authorities. The purpose of the inspections was to check that the waste confirmed to the standards specified in the contracts and in Chinese law for imported paper waste. At the relevant time these required, inter alia, that the waste consisted of at least 98.5% by weight of waste paper, a figure which we understand has subsequently been increased to 99.5%. 15. The present case relates to household waste which the appellant collected from a number of different areas. Depending on the system operated by the local authority for a particular area, some of the waste had been collected by householders simply as mixed recyclables, and some had been separately collected as distinct types of recyclable material such as paper, glass and plastic. The latter, inevitably, included some wastes which had been placed into the wrong container; and both forms of collection inevitably included some items which were not recyclable at all. At its Edmonton facility, the appellant carried out an automated and manual sorting process, the purpose of which was to divide the collected household waste into different waste streams (one of which was paper waste) and to remove contaminants – that is, anything which should not form part of the relevant stream. The paper waste extracted by this process was packaged into bales, each weighing about one tonne. The bales were then loaded into shipping containers before leaving Edmonton to begin their journey to their intended destinations. This appeal relates to two consignments of what was said to be B3020 paper, despatched a few days apart to recycling plants in China. 16. At Felixstowe, officers of the Environment Agency opened and inspected a number of the containers from each of the two loads. It could immediately be seen that contaminants were present in some of the bales. In relation to containers in the second of the consignments which were inspected, it could also be seen that some of the bales – mainly in the row which was immediately visible when the container was opened – bore blue “passed” labels, but others did not. The containers were detained, and seven of them (destined for two separate plants in China) were moved to a yard for further examination. About three bales from each of these containers were broken so that the contents could more clearly be seen. Representatives of the appellant, and of agents acting for the Chinese purchasers, were able to be present at the inspection, and indeed were permitted to select the bales which were to be broken. It is unnecessary to go into details: it suffices to say that contaminants found in these sample bales included soiled nappies and incontinence pads, sanitary towels, sealed bags containing faeces, items of underwear, other items of clothing, plastic bags, a recycling bag issued by a local authority, plastic bottles, food packaging, electric cable, pieces of wood, metal items, hot water bottles and hi-vis jackets. The criminal proceedings : 17. The appellant company was charged with the two offences we have indicated. The particulars of count 1 alleged that between 13 and 22 May 2015 the appellant transported waste specified in Article 36(1)(b) of the European Waste Shipments Regulation 1013/2006, namely waste collected from households, that was destined for recovery in China, a country to which the OECD decision does not apply. Count 2 was in similar terms, save that the offence was alleged to have been committed between 17 May and 5 June 2015. 18. It has always been common ground that the appellant was exporting wastes destined for recovery in a non-OECD Decision country. It is also common ground that what was collected and brought to the Edmonton facility for sorting was Y46 household waste. The issue at trial was whether the jury were sure that, by the time the loaded containers left Edmonton, the bales which they were carrying still comprised Y46 household waste and so could not lawfully be exported. It is further common ground that there is no “0% contamination” requirement if Y46 household waste is to become B3020 paper: after proper sorting, the waste may correctly be designated as B3020 paper even though it contains a small amount of contaminants. The prosecution case was that the contaminants present in the relevant consignments were in excess of a permissible minimal level: the Y46 household waste received at the Edmonton facility had either not been sorted at all, or had been sorted so ineffectually that it remained in the category of Y46 household waste and could not lawfully be exported. The defence case was that the waste had been appropriately sorted and that the material being exported to China was properly categorised as B3020 paper. 19. At a comparatively early stage of the proceedings the judge conducted a preparatory hearing. It was submitted on behalf of the appellant that the respondent was in law required to prove not only that the material being exported was Y46 household waste but also that it had not been contaminated by other materials to an extent which prevented the recovery of the waste in an environmentally sound manner. The judge gave a binding ruling in which he rejected that submission. He held that the prosecution could succeed if it proved that the consignment was correctly categorised as Y46 household waste. If the jury concluded that the consignment was or might have been paper waste, it could potentially be argued that the waste was contaminated by other material which prevented the recovery of the waste in an environmentally sound manner. The prosecution had however made clear that no such argument would be advanced: if the jury was not sure that the consignment was Y46 household waste, the defendant was entitled to be acquitted. The reference in the chapeau to recovery in an environmentally sound manner was therefore irrelevant to what the prosecution had to prove in this case. 20. The appellant appealed against the judge’s ruling. The appeal was dismissed by this court at a hearing on 18 December 2018. Written reasons were given in a judgment handed down on 24 January 2019: see [2019] EWCA Crim 20 , [2019] Env. L.R. 31. The court made clear at [30] that the only real issue in the appeal was whether the prosecution was required not only to prove that the consignment was Y46 household waste but also to prove the matters set out in para 3(b) of the chapeau. It accepted, at [32], that in some cases paragraph 3 of the chapeau might come into play and be the subject of evidence. But, the court held, this was not such a case, because the prosecution put its case solely on the basis of Article 36(1)(b) and did not seek to rely on Article 36(1)(g). Davis LJ, giving the judgment of the court, concluded at [34]: “Accordingly, whether there was sufficient household waste contamination for these consignments properly to be styled as Y46 household waste (rather than the B3020 mixed paper designation given in the export documentation) was a matter of fact and degree for the jury. To seek further to introduce the subject-matter of the chapeau into a case of this particular kind, given the nature of the prosecution here undertaken, would in our view be to introduce an irrelevant and complicating distraction. …” 21. The case then proceeded to trial. Evidence was given by witnesses for the respondent about the inspection of the containers and the findings when the sample bales were inspected. Those witnesses included employees of the agents of the Chinese mills. In cross-examination, they confirmed that the agents had regularly inspected bales of paper waste produced by the appellant and destined for the Chinese mills. They were not asked about the results of those inspections. It is relevant to note that both parties proceeded on the basis that the bales at issue in this case were typical of the bales of paper waste produced by the appellant’s facility. 22. The respondent’s expert witness Dr Rockey said in cross-examination that the processing of paper involved a fairly standard process, and she accepted that the standard of recycling in China was at least as high as in Europe. She expressed the opinion that waste which was exported as paper should contain only a minimal amount of contamination and so should not need any further sorting before being processed to produce recycled paper. When cross-examined, she expressed the opinion that the bales at issue in this case would have had to be sorted before being put though a paper mill, but she accepted that she was not an expert in how paper mills operate. 23. The evidence adduced by the appellant included both factual and expert evidence as to how effective its sorting process was in removing contaminants and as to the reasons why contaminants which had become compacted within the waste might have been missed during the sorting process. The appellant’s witness Mr Williams gave evidence that the agents of the Chinese purchasers inspected the appellant’s product weekly and the relevant official Chinese agency also inspected six or nine times a year. Evidence was given about the process by which the paper waste was recycled in the relevant paper mills in China, using very modern, very large machines. Mr Williams told the jury that he had seen the machines in operation: the wires binding the bale which had come from Edmonton were cut, the bale broken open and the waste went “straight into the pulper”, where it was heated by steam injection and any contaminants removed. He added that chemicals were used to “kill bugs” before the recycled paper was produced. 24. The appellant’s Chief Operating Officer, Mr Davis, gave evidence in chief to the effect that the management of waste is essential to the protection of the environment and of human health. He referred to awards which the appellant had won in relation to health and safety and innovation, and to the company’s charitable works. He was then asked whether he regarded the appellant as a business that takes its environmental responsibilities seriously. He replied: “A: Yes, it is core to what we do, we only exist because of environmental legislation so it would be nonsensical for us not to take our responsibilities seriously and our staff take it seriously because whilst it is a basic service, we understand the importance of it because we do it every day and we understand how difficult it is. Q: To ask you that from a slightly different point of view, is it good commercial sense for you to take your responsibilities seriously? A: Yes, but we do it for both reasons, it is commercially important, but we would always do it from the moral point of view as well.” 25. In the course of the trial, the judge gave three rulings which are challenged in this appeal. First, the judge refused to allow the appellant to adduce factual and expert evidence as to whether the waste met the Chinese standard of acceptability for recyclable waste paper (no more than 1.5% by weight of other recyclable wastes such as metal, glass or plastic), and whether the Chinese paper mills to which the waste was being sold could successfully recycle it in an “environmentally sound manner”. He held that this court had already ruled that the categories of Y46 household waste and B3020 paper were mutually exclusive and that, if the waste was proved to be Y46 household waste, then the question of whether it could subsequently be recycled in an environmentally sound manner was irrelevant. His reasons for his ruling were that evidence about such matters risked going behind the decision of this court in January 2019, and that in any event it was not relevant for the jury to know – “whether it meets Chinese standards of acceptability, whether the Chinese could successfully process what they receive into a form that is useful or acceptable to them”. 26. The parties treated this ruling as precluding, inter alia, the admission of evidence as to the results of the inspections carried out by the agents and the Chinese authorities, since evidence as to the result of the inspections might lead to the jury being told what the Chinese standard was. That is why the appellant adduced evidence as to the fact of those inspections, but not their results. 27. The second ruling was given in the course of Mr Davis’ cross-examination. He was asked a series of questions about the measurement of the level of contamination, whether by nappies or otherwise, in the bales of waste paper produced by the appellant. In his answers he referred to the inspections carried out by the agents, saying, for instance, “… we would rely on the brokers’ figures in terms of acid test.” Then came the following exchange: “Q. So tell me what the answer is in relation to the figures that Biffa produced at divider two. How much was not being picked up in relation to these statistics, these analyses? A:. Right, in terms of that analysis at that time our bale breaks would’ve shown less than 1.5% contamination. Q. Can you show me the figures for that? A. I’m at a loss here.” 28. The jury were sent out at this point. It was submitted that Mr Davis was at a loss how to answer the question because he had been told that the results of the agents’ inspections were not to be disclosed to the jury, but could not answer the question without doing just that, and that the appellant would be disadvantaged if it was precluded from adducing evidence of the agents’ measurements. The judge indicated that he considered that the way in which the parties had interpreted his first ruling was sensible. Reference to the standards which other people employ was “off limits”. In principle, it was not “off limits” to refer to measurements by other people, but in practice it would be difficult to separate evidence as to the measurements from evidence as to the standards. Accordingly, no evidence should be adduced as to the percentages found by the agents, because it was liable to lead into the territory of the agents’ standards. 29. Thirdly, the judge allowed an application by the respondent to adduce evidence of previous convictions of the appellant in order to correct a false impression. The application was made pursuant to section 101(1)(f) of the Criminal Justice Act 2003. Section 105(1) of that Act provides that for the purposes of section 101(1)(f), a defendant gives a false impression “if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant.” Section 105(6) provides that evidence is admissible under section 101(1)(f) – “only if it goes no further than is necessary to correct the false impression”. 30. We have already referred to the evidence which Mr Davis gave in answer to questions asked during his examination in chief. The appellant company had in fact been convicted of 18 previous offences, including four for health and safety offences, three of which involved fatalities. The judge held that Mr Davis’ evidence had been apt to give a false impression about the appellant’s environmental track record: the evidence about the awards received by the company would not alone have created a false impression, but the evidence about the company taking its environmental responsibilities seriously was apt to convey to the jury the implied assertion that it would be at odds with those business standards and ethics for the appellant to have committed environmental offences. Evidence was therefore admissible to correct that false impression, and the judge rejected the appellant’s submission that he should exercise his discretion under s78 of the Police and Criminal Evidence Act 1984 to exclude all evidence of previous convictions. He ruled however that evidence of the convictions for health and safety offences should be excluded on grounds of fairness. In the light of that ruling counsel sensibly agreed the terms of a short written admission of fact relating to the 14 convictions for environmental regulatory offences. No criticism is made of the terms in which the judge later directed the jury about the limited relevance of this evidence. The summing up : 31. The judge helpfully provided the jury with written copies of his directions of law. He directed them that they had to decide the form of the waste when it left Edmonton, and were not concerned with what further processing it would or might have undergone in China. He directed them that it was agreed to be impossible for a consignment of paper to consist literally of nothing but paper, and that the law did not dictate any particular level, threshold or percentage of contaminants which made the difference as to whether the waste was or was not household waste. He said: “So, you should not convict merely because you find, if you do, that there were some contaminants in each consignment. Rather, your task will be to decide what you think the facts are about the contents of the containers and, if you find that contaminants were present, about their nature, quality and quantity, however you decide to assess it. You will then need to form your own judgment, using your common sense, members of the jury, as to whether the prosecution have made you sure, on the given count, that the nature, quality and quantity of non-paper items that were present, means that you can be sure that the given consignment amounted to waste collected from households” The grounds of appeal : 32. There are two grounds of appeal: Ground 1: the judge erred in law in excluding, as inadmissible and irrelevant, factual and expert evidence as to (1) whether the disputed waste complied with Chinese standards for recyclable paper, and was recoverable (ie, recyclable) as paper in China; and (2) whether the waste could be recovered in an environmentally sound manner in China. Ground 2: the judge erred in acceding to the respondent’s application that evidence be admitted of the appellant’s bad character in order to correct an apparent false impression under s101(1)(f) of CJA 2003. The submissions : 33. As to ground 1, the appellant submits that it was wrongly denied the opportunity to adduce evidence which would have shown that the material in the containers was accepted as paper waste both by the Chinese purchasers and by the Chinese authorities, each of whom carried out frequent checks of the appellant’s sorting of paper waste and were invariably satisfied with the outcome of their tests. Further, the appellant was denied the opportunity to adduce evidence which would have shown that the Chinese authorities applied high environmental standards and that the paper waste could have been recycled in the Chinese mills without risk to human health or to the environment. Such evidence, it is submitted, was relevant to rebut the prosecution case that the waste leaving Edmonton was so contaminated that it could not be regarded as paper. On a proper analysis of the legal framework, it is relevant to consider the significance of the contamination in relation to the intended recycling of the paper and in relation to whether it would be possible to carry out the intended recycling without risk of damage to human health or to the environment. Those are matters which the jury should consider in making the holistic evaluation which is required of them. It is not suggested that the evidence which the appellant was not permitted to adduce would have been determinative of the issue before the jury; but it was relevant to their difficult task of making the necessary evaluation, as a question of fact and degree, as to whether the Y46 household waste had by proper sorting become B3020 paper. The effect of the judge’s ruling was that an important part of the evidence relevant to that issue was not before the jury: they heard some evidence about the way in which the waste would be processed in China, but they were deprived of the further evidence which the appellant wished to adduce. The jury was therefore unable properly to determine whether such contaminants as remained were of no significance, were within the de minimis principle and did not prevent the waste being categorised as B3020 paper. 34. It is further submitted that the judge’s ruling breached the requirement of certainty and made it impossible for the appellant know whether it was acting lawfully. Given that there can never be a complete absence of any contaminant, and given that there is no objective yardstick to which the jury can refer in making their evaluation, it is necessary for the appellant to be able to show that it complied with the high standards of the Chinese authorities, satisfied its customers who (like the appellant) could have no commercial interest in trading in material which was not B3020 paper, and supplied waste which could be recycled without risk to human health or the environment. 35. It is also submitted that the unfairness created by the judge’s ruling was compounded when Mr Davis was cross-examined about the extent to which the sorting process had failed to detect contaminants: but for the judge’s ruling, he would have been able to answer the questions by reference to the results of the inspections carried out in the United Kingdom and in China; but as it was, he was left exposed. 36. For the respondent, it is submitted that the legislation casts its focus upon the conduct of the exporter, not on what happens to the waste when it reaches its destination. The export of Y46 household waste is prohibited and therefore it matters not what might be the effect of a particular contaminant or how the waste will be treated in the country of destination. Beside BV shows that if Y46 household waste is to become B3020 paper, it must be properly sorted. In the circumstances of this case, therefore, the focus is on Edmonton, not China. The nature, quality and quantity of contaminants have to be considered by the jury in order to decide whether the waste has been properly sorted, not to decide what will happen in another country. Otherwise, the same waste could be differently categorised according to its country of destination, which would be contrary to the purpose of the legislation. 37. It is submitted that the jury had a good deal of evidence about the nature and processing of the waste received into the Edmonton facility. The appellant adduced evidence that it had invested heavily in high-quality equipment. Mr Williams gave evidence that the purchasers’ agents repeatedly inspected the waste which the appellant was selling to Chinese mills, and although the appellant was not permitted to adduce direct evidence that those inspections had been passed, that was the plain implication of the evidence. The appellant was able to send representatives to observe the Environment Agency’s inspection of the sample bales, and almost all of the waste in the containers was returned to the appellant. It would therefore have been open to the appellant, if it wished, to adduce evidence as to precisely what contaminants remained in the waste. The jury thus had all the evidence they needed to decide whether the waste had been properly sorted. Moreover, notwithstanding the judge’s ruling, Dr Rockey had been cross-examined about the processing of waste in China. That was irrelevant evidence, because it could not help the jury to decide whether the waste had been properly sorted in Edmonton. 38. As to ground 2, it is submitted on behalf of the appellant that Mr Davis was doing no more than putting forward the appellant’s response to the allegation that the waste had not been sorted at all, and was not making a false parade of virtue. There was no such implied assertion as the judge found. In the alternative, even if the bad character evidence was in principle admissible, the judge should have excluded it because of its prejudicial effect in circumstances where the appellant was charged with offences of strict liability, and the jury had to make an evaluative judgment. It is suggested that the transcript of a discussion at a later stage of the trial about the “passed” labels reveals that the judge had previously misunderstood the evidence in that regard, and it is submitted that the ruling which the judge gave about it was inconsistent with his earlier admission of the bad character evidence. 39. The respondent submits that the evidence of Mr Davis did not relate to the appellant’s defence to the charges: its only purpose was to suggest that the appellant was not the sort of company to commit an offence such as was alleged. Mr Davis’s reference to “the moral point of view” confirmed that. The judge was therefore plainly entitled to find that the evidence had been apt to create a false impression. He exercised his discretion favourably to the appellant in excluding evidence about the convictions for health and safety offences. 40. We are grateful to all counsel for their submissions, which were of a high standard. We have taken into account all the points which they made, though we do not find it necessary to mention them all. Discussion and conclusions : 41. The first ground of appeal challenges the judge’s ruling excluding certain evidence which the appellant wished to adduce before the jury. In considering that challenge, we must first address as a matter of principle the nature of the evidence which is admissible in a case such as this. 42. We think it important to emphasise at the outset that Article 36 of the 2006 Regulation, and therefore regulation 23 of the 2007 Regulations, are concerned with the prohibition of exports of certain wastes destined for recovery in non-OECD Decision countries. Consistently with the aims of the Basel Convention, which as we have noted at [2] reflects the need for measures relating to the transboundary movement and disposal of wastes “whatever the place of disposal”, no distinction is drawn between individual non-OECD Decision countries. The Regulation thus prohibits the export of the proscribed wastes to any non-OECD Decision country, regardless of the precise destination. 43. It follows, as both parties recognise, that the correct categorisation of the waste material in question must be determined as at the point where its export begins: here, when the loaded containers left the Edmonton facility. If at that stage the material is properly categorised as Y46 household waste, its export to a non-OECD Decision country is unlawful, regardless of what might happen to it when it reaches its destination. 44. Where, as in this case, waste has been collected as mixed recyclable household waste, it (or some of it) can only become paper by being properly sorted. In this context, “properly sorted” means that the sorting is sufficient to remove contaminants to the point where any contamination which remains is “so small as to be minimal and not preventing waste from becoming waste paper under B3020” (see Ideal Waste at [44]). If that minimal level of contamination has not been achieved by the time the export to a non-OECD Decision country begins, the material remains Y46 household waste: the prohibition therefore applies, even if further sorting or processing in the country of destination would remove all but a minimal level of contaminants. 45. Neither the destination of the waste, nor any standard applied by the recipient of the waste or by the country to which it was to be exported, is relevant to the jury’s task. The Basel Convention and the 2006 Regulation impose a standard for determining whether waste is B3020 paper waste which applies regardless of the destination of a particular consignment of waste. The opinions of mill owners, or foreign legislatures or environmental agencies, as to how to determine what constitutes paper waste are irrelevant to the application of that standard. 46. It is of course open to a defendant to adduce factual and expert evidence as to the nature of its sorting process, and as to the extent to which that process is effective in removing non-paper waste. It is also open to a defendant to adduce evidence of the fact that it carried out (or caused to be carried out) its own testing of the amount of contaminants remaining in the waste (or comparable waste) after the sorting process; and the results of such testing can be given in evidence, though the jury must be directed that the law does not lay down any particular proportion or level of contaminants below which the waste can properly be categorised as paper waste. But it follows from what we have said that the correct categorisation of the waste material cannot depend on its specific destination. Nor can it depend on precisely how the waste will be recovered in the country of destination, or on the standards which that country applies to determine a permissible level of contaminants, be those standards high or low. The waste in a particular consignment must be either Y46 household waste or B3020 paper waste when it begins its journey: it cannot be categorised as paper if it is going to one destination but as household waste if it is going to another. The prohibition on exports either applies or does not apply at the outset of the journey, regardless of where the journey will end or what will happen to the waste when it gets there. Any other approach would be inconsistent with the aims and intentions of the Basel Convention and of the legislation flowing from it, and would also be likely to render an essentially simple prohibition unworkable and unenforceable in practice. 47. How then is a jury in a case such as this to decide whether the prosecution have proved that at the start of its journey the waste was Y46 household waste? No simple metric can be provided. As is clear from Ideal Waste , the jury will need to consider the quantity, nature and quality of the contaminants which remain after the sorting process. We place quantity first in that list, because it is clear from Beside BV and subsequent cases that the quantity of contaminants must be small. If more than a small quantity of contaminants remains, it must follow - regardless of the nature or quality of the contaminants - that the Y46 household waste cannot have been properly sorted and cannot have become a green list waste. 48. If the jury find the quantity to be small, then it is necessary for them to consider the nature and quality of the contaminants. In this regard, because the prohibition relates to exports of waste for recovery , we see some force in the appellant’s submission that it is relevant for the jury to know whether those contaminants prevent or impede the recovery of the waste, in an environmentally sound manner, as recycled paper. We think there is merit in the point that, absent any such evidence, a jury might assume that the mere presence of a particular contaminant, in however small a quantity, must necessarily mean that the Y46 household waste could not have become B3020 paper. The jury might be tempted to make such an assumption if the contaminant was unpleasant (eg a soiled nappy) or notably incongruous (eg a hot water bottle). 49. We further accept that this submission is not precluded by the earlier decision of this court, when dismissing the appeal against the judge’s preliminary ruling: that decision was concerned with what ingredients of the offence the prosecution were required to prove, and was not concerned with the separate issue of what evidence a defendant may adduce if it chooses to advance an affirmative case as to the correct categorisation of the waste. 50. To counter the risk which we have identified, it is in principle open to a defendant to adduce evidence with a view to showing that, regardless of the precise destination, the bales of paper waste produced by its sorting process could without further sorting be recycled in an environmentally-sound manner. It is therefore open to a defendant to adduce evidence, including expert evidence, of the general processes by which B3020 paper is recycled, with a view to showing, for example, that however out of place a particular contaminant might appear in a consignment of paper, its presence could not have any significant effect on the processing of the waste, in an environmentally-sound manner, into recycled paper. Such evidence cannot of course be determinative of the evaluation which the jury has to make: it remains necessary for the jury to make an overall assessment of the quantity, nature and quality of the contaminants, and to make its own judgment as to whether the waste in question was still Y46 household waste when its export began. We emphasise that this does not open the door to evidence about how the waste will be processed at a particular destination: such evidence is inadmissible because, as we have made clear, the jury has to determine the correct categorisation of the waste when its journey begins and regardless of precisely where it is going. 51. We would add an important case management consideration. A defendant who wishes to adduce evidence of this nature must identify the issue in its defence case statement and at the plea and trial preparation hearing. Depending on the circumstances of the case, consequential issues may arise (for example, if there is a dispute as to whether that which the appellant puts forward as general practice will in fact be followed) and Article 36(1)(g) may become relevant as part of the prosecution case. 52. We are not however able to accept the appellant’s further submission that a defendant may adduce evidence of the fact, or the results, of testing carried out (whether before or after the waste leaves the United Kingdom) by the purchasers or by the regulatory authorities in a particular country of destination. This is because any such evidence would be evidence of an irrelevant and inadmissible fact, namely that the waste met a standard applied by a particular operator or regulator in a particular non-OECD Decision country. Any such standard could only be relevant to the importing of the waste into the country concerned, not to the correct categorisation of the waste when it is exported. 53. Those being the relevant principles, we turn to consider whether the convictions are unsafe on either or both of the grounds of appeal. 54. As to ground 1, it follows from what we have said that the judge was correct to rule that evidence as to compliance with Chinese standards or as to the ability of the Chinese purchasers to recycle the waste was inadmissible. The jury did in fact hear evidence about tests carried out by the purchasers’ agents and by the Chinese authority (with a clear inference to be drawn that those tests had been passed) and about the processes carried out in the Chinese mills: the appellant had the benefit of Mr Davis’ evidence that the breaking open of the bales showed that the level of contamination was less than 1.5%, and of Mr Williams’ evidence to the effect that the bales of paper waste would go “straight into the pulper” in the Chinese mills. Thus the evidence which the jury heard went beyond that which was admissible in accordance with the principles we have stated. The judge’s ruling did not prevent the appellant from adducing further evidence as to how paper waste is generally recycled, in order to counter the evidence given by Dr Rockey. Nor was the appellant prevented from adducing evidence as to why the contaminants found in the seven bales would not have prevented or impeded such recycling being carried out in an environmentally sound manner. In those circumstances, we are satisfied that the judge’s ruling did not deny the appellant the opportunity to adduce the evidence which was properly admissible, and did not cause any unfair prejudice to the appellant. The judge therefore did not fall into error as this ground contends. 55. We can address the second ground briefly. It is well established (see, eg, R v Renda [2005] EWCA Crim 2826 , [2006] 1 Cr App R 24 ) that the question whether a defendant has given a false impression about himself is fact-specific. In our judgment, the judge was clearly entitled to find that the evidence given by Mr Davis in examination in chief, in answer to questions specifically asked of him, could convey the impression that the appellant was not the sort of company which would commit an offence. It is not possible to justify that evidence on the basis that it was necessary in order to put forward the appellant’s defence to the allegation that the waste had not been sorted at all. The judge was therefore correct to rule that the prosecution could adduce evidence to the extent necessary to correct any false impression. The judge was careful to limit the extent of the bad character evidence which was admitted, and to avoid any risk of unfair prejudice arising from the previous convictions for health and safety offences, particularly those involving fatalities. He therefore did not fall into error as this ground contends. 56. For those reasons, we are satisfied that the convictions are safe. This appeal accordingly fails and is dismissed.

2020_07_03-4927.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/827/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/827

9e9d49e60d458fba951f6187d7c07e1851cdc2fe43179ccf4dd5591ac733007e

[2004] EWCA Crim 3222

EWCA_Crim_3222

crown_court

No: 200403951/A3 Neutral Citation Number: [2004] EWCA Crim 3222 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 7th December 2004 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE BELL MR JUSTICE HUGHES - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 89 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2A

No: 200403951/A3 Neutral Citation Number: [2004] EWCA Crim 3222 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 7th December 2004 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE BELL MR JUSTICE HUGHES - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 89 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR H DAVIES appeared on behalf of the ATTORNEY GENERAL MR P BOGAN [MR K HOSSEIN-BOR] appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE KENNEDY: HM Solicitor General seeks the leave of this Court to refer to the Court a sentence which she considers to be unduly lenient and we grant that leave. 2. In January 2003 Earl Webster Cox was arrested in Colorado. His house was searched and computer equipment was seized. Officers from the United Kingdom's National Hi-Tech Crime Unit were permitted to take a copy of the hard drive from the computer. That resulted in investigations being made and a search warrant being obtained which was executed at the Huddersfield home of the offender at about 10.00 a.m. on 18th August 2003. He is a single man born on 19th February 1959, so then 44 years of age. He was present when the police arrived. He was taken to the police station where he became ill and had to be transferred to hospital, but he recovered quite quickly and was fit to be interviewed later the same day. At his home address the police officers had found computer equipment and 161 compact disks. Examination of those compact disks showed that three of them contained a total of 174 indecent images of children. 3. The connection between Colorado and Huddersfield was easily made because Cox in Colorado, using the name "Wizard", organised passport-protected bulletin boards which enabled those interested in paedophilia to communicate with each other across the world and share information, but not images. So, for example, a person with access to a bulletin board could post on that board, in computer-speak, a request for a particular type of pornography and to that request others might response. In the lower court prosecuting counsel, Mr Rae, described bulletin boards as being like private members' clubs with administrators acting as officers of the club. They are, he said, "the life blood of the paedophile community". 4. One of Wizard's bulletin boards was the "Lost Property Community Board" which existed to enable administrators of other boards to discuss matters of common interest, and the Colorado material showed that in March 2002 the offender had been welcomed to the Lost Property Community Board as an administrator of the Ranchi board. Cox, or Wizard, had close links to that board, but he was not an administrator of it. It had, it seemed, its own head administrator and about six other administrators of whom the offender was one. 5. After his return from hospital on the day of his arrest, the offender was interviewed by two officers of the NHTCU for about one hour and 25 minutes. He was offered the services of a solicitor, but declined. It is clear from the transcript of that interview that it was carefully and courteously conducted by experienced officers. It is also clear that the offender was co-operative, even if, as the prosecution later contended, he endeavoured to minimise his role as an administrator and to exaggerate his disenchantment with paedophilia. 6. On the following day, 19th August 2003, the offender was interviewed for a second time. On that occasion he did have a solicitor present and the interview lasted for about one hour and 20 minutes. As on the first occasion, the offender was apparently co-operative throughout. Examination of the offender's computer revealed what was posted on the Ranchi bulletin board on the day of his arrest. The material was of the type to which we have already referred. In addition, in the unallocated clusters of the hard drive there were two images of naked young girls, one of which had been partially erased. That indicated that two readily available programmes for the eradication of material from the hard drives had been run and it was naturally suspected that the offender had run those programmes to thwart any inspection of his activities that might take place. 7. During the course of his interview, the offender was asked about the Ranchi bulletin board and about his position as one of its administrators. He said that the board operated at two levels: the public level as shown on the board on the day of his arrest and an underground level only accessible to those who had the address. At the public level the board attracted attention not only from those who were sympathetic to it, but also from law enforcement officers, persons unsympathetic to any such enterprise and hackers who simply sought to challenge any form of security. The head administrator decided how the board should be run. The role of the offender was mainly to remove unwanted material from the board, whether it was in the form of postings, which had exhausted their useful life, or spam. He had access to all levels, but at the underground level the need to remove material did not exist. In order to discharge his duties as an administrator the offender visited the Ranchi board three to five times per day. 8. He said that at the time of his arrest about 30 per cent of the material on that board related to child pornography, the remainder being concerned with adult pornography. When he joined the Ranchi board the percentage of child pornography was, he said, less, and he had no means of knowing the precise nature of the material to which the postings referred. As Mr Rae said when opening the case for the prosecution in the Crown Court: "... what is essentially being distributed are what are described as URLS or 'earls', and these are web addresses, and from the title you can get an indication of the content but it is never a wholly descriptive title. ... So somebody facilitating their distribution does not actually know if they are facilitating distribution level 1, 2, 3, 4 or 5." Those numbers referred to the judgment of this Court in R v Oliver and others [2003] 2 Cr App R(S) 15 to which we refer later in this judgment. 9. The offender could have obtained access to some of the material referred to in the postings on the Ranchi bulletin board, but access to some of the material would have required encryption software which he did not possess. He maintained that he had no interest in child pornography beyond levels 1 and 2, and that assertion was consistent with what was found on the compact disks and on the hard drive of his computer. He was, however, an active administrator, as was apparent not only from what he had admitted doing in relation to the Ranchi board, but also from his contacts with the LPCB, which, Mr Rae submitted, showed that he was trusted in the community which he served. 10. The offender was sent to the Crown Court for trial by the Magistrates' Court on 27th August 2003. On 10th May 2004 he was arraigned on an indictment which contained 20 counts. Four days earlier, on 6th May 2004, Mr Rae signed a 30 page case summary which was intended, amongst other things, "to explain how the Crown puts the case in respect of the various allegations made". Counts 19 and 20 can be disregarded as Mr Rae acknowledged in paragraph 23 of his summary "there is an argument that there is no evidence to support them". Counts 17 and 18 related to the use of the two programmes run by the offender to eradicate material. The use of each of those programmes was alleged to be an act tending and intended to pervert the course of public justice. The offender never admitted using either programme for that purpose. It was contended on his behalf that he used the programmes to prevent the hard drive on his computer from being overloaded. Whether or not that was his motivation has never been investigated, because when he pleaded not guilty in relation to those two counts they were ordered to lie on the file on the usual terms. 11. That left 16 counts which fell into three groups. (1) Count 1, conspiracy to distribute indecent photographs of children which related to the offender's activities as administrator of the Ranchi bulletin board. (2) Counts 2 to 10 inclusive, which each alleged that the offender made a level 1 indecent photograph of a child. They were specimen counts relating to the images recovered from the compact disks. (3) Counts 13 to 16 inclusive, which were the same as the preceding counts but related to the lesser number of images at level 2. 12. The documentation which was required by the defence was not disclosed as early as it should have been, and, even when the case summary was produced, it did not briefly encapsulate, as in our judgment it should have done, precisely how the Crown put its case in relation to the first count. Nevertheless, Miss Dix-Dyer, for the offender, was able in the time available to advise her client, and, with the benefit of that advice, on 10th May 2004 he pleaded guilty to counts 1 to 16 on the following written basis of plea: "1. The defendant pleads on the basis that there is no evidence of him up-loading images. His own interest is mostly level 1 with a few level 2 images. As an administrator he was facilitating others to distribute what they want to distribute, namely website addresses of sites containing indecent images. 2. Only 30 per cent of the material on Ranchi was paedophilia and that when the defendant first went on the board it was less than it was at the time of his arrest." 13. There had been good liaison between counsel prior to the hearing and the pleas were accepted as tendered. The case was then adjourned for the preparation of a pre-sentence report and was relisted for sentence at Bradford Crown Court on 11th June 2004. On that day the Crown was represented by Mr Rae, who clearly has experience in the field, and officers from the NHTCU were present to assist him in court. We mention that because a good deal of what was said to us last Friday by counsel now appearing for the Solicitor General, namely Mr Davies, seemed to amount to little more than a polite submission that either prosecuting counsel in the crown court failed to present the case as clearly as he should have done, or the Recorder failed to understand it. 14. Whichever way it is put we are not persuaded by it. Mr Rae spent a considerable amount of time outlining the facts which we have set out in this judgment. As already noted, he pointed out that the offender as administrator would have an indication of the content of the material on the Ranchi bulletin board, but would not actually know its level. Foreshadowing Mr Davies in this Court, Mr Rae invited the attention of the Recorder to some of what was posted on the Ranchi board, saying at page 14 of the transcript of his opening: "'Extreme Lolitas.com' I have said you cannot tell whether it is level 1 or 5 but if ever there was likely to be an indication of a higher level, the use of the term 'extreme' would hint at that. I am not suggesting that the defendant has accessed them, I am using this as an example of postings within the paedophile community and what is contained within them." 15. The Recorder then intervened to show that he understood that as relating to count 1. Mr Rae continued: "Absolutely, that is the only relevance of it, yes. As I say, my learned friend I know is going to address your Honour on the fact that he is in ignorance of the content. I am not seeking to go behind that but I am seeking to indicate that the language used is ambiguous in this outline. We have 'Underage-video.com; 'Pre-t-erotica; 'Pure Lolita; 'Boy erection 'Lolita Sweet; 'Lolitas for sale; 'Little pussy info; 'Pre-teen goddess; 'Lolita's factory' -- and what the Crown have to say about this is that by facilitating the distribution of these sort of messages on the Ranchi bulletin board that is the subject matter of count 1, the defendant is fulfilling the role that he admits to of being an administrator." 16. For reasons which will emerge later in this judgment it is important to note Mr Rae's position, that he was not seeking to go behind the defence assertion, that the offender was in ignorance of the content of the material to which the posted messages referred. Miss Dix-Dyer for the offender accepted the submission of Mr Rae that an administrator is not necessarily to be equated with a distributor, but left it to the court to say which was worse. 17. At page 3 of the transcript of her mitigation she set out her understanding of the way the case in relation to count 1 was put against her client: "... he facilitated the posting of the websites by assisting in providing the medium by which others could post those website addresses. Really, posting adverts for websites, although not specifically detailing what would be found there if one went to have a look." She recognised that had to be a simplification and as such no one objected to it. 18. The offender did have one potentially relevant conviction in 1997, when, for five offences of publishing an obscene article, he was fined £100 and was ordered to undertake community service for 80 hours. Apparently that offending was concerned with adult videos and Miss Dix-Dyer invited the court to disregard it. As she pointed out, there is no evidence in this case of financial gain, and the offender's life has been devastated by his arrest. He was, as was clear at the time of his arrest, in relatively poor health. At the time of sentence he was said to be suffering from angina and a blocked artery. After his arrest he was released on bail, but press publicity made him a target and he had to flee his home. He could not even risk returning for his possessions, so the landlord of the property disposed of his belongings and relet the property. 19. Before we turn to the decision of the Recorder it is appropriate to remind ourselves of the relevant statutory provisions and of one guideline decision of this Court. It is an offence contrary to section 1(1)(b) of the Protection of Children Act 1978 to distribute indecent photographs of children. The penalty for such an offence committed after 11th January 2001 is up to ten years' imprisonment. It is therefore an offence to conspire to distribute such photographs and for that offence the same penalty is available. 20. In August 2002 the Sentencing Guideline Panel, at the request of this Court, offered advice as to the proper approach to sentencing for offences contrary to section 1(1) of the 1978 Act . That advice was adopted by the Court, with some minor modifications, in R v Oliver . The Panel had advised, and the Court accepted, at paragraph 9 of the judgment that: "... the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it." 21. As to the nature of the material, the Court set out five levels: "(1) images depicting erotic posing with no sexual activity; (2) sexual activity between children, or solo masturbation by a child; (3) non-penetrative sexual activity between adults and children; (4) penetrative sexual activity between children and adults; (5) sadism or bestiality." 22. Turning to the nature of the offender's involvement, the Court said at paragraph 11: "... the seriousness of an individual offence increases with the offender's proximity to, and responsibility for, the original abuse. Any element of commercial gain will place an offence at a high level of seriousness. In our judgment, swapping of images can property be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such material. Widescale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation to the original victims." 23. The Court then turned to particular factors relevant to the level of sentence and set out guidelines, not to be construed as a straitjacket, from which a sentencer cannot escape. For present purposes we can begin with paragraph 16: "We agree with the Panel that the custody threshold will usually be passed where any of the material has been shown or distributed to others, or, in cases of possession, where there is a large amount of material at Level 2, or a small amount at Level 3 or above. A custodial sentence of up to six months will generally be appropriate in a case where (a) the offender was in possession of a large amount of material at Level 2 or a small amount at Level 3; or (b) the offender has shown, distributed, or exchanged indecent material at Level 1 or 2 on a limited scale, without financial gain. A custodial sentence of between six and 12 months will generally be appropriate for (a) showing or distributing a large number of images at Levels 2 or 3; or (b) possessing a small number of images at Levels 4 or 5. 17. In relation to more serious offences, a custodial sentence between 12 months and three years will generally be appropriate for (a) possessing a large quantity of material at Levels 4 or 5, even if there was no showing or distribution of it to others; or (b) showing or distributing a large number of images at Level 3; or (c) producing or trading in material at Levels 1 to 3. Sentences longer than three years should be reserved for cases where (a) images at Levels 4 or 5 have been shown or distributed; or (b) the offender was actively involved in the production of images at Levels 4 or 5, especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain; or (c) the offender had commissioned or encouraged the production of such images. An offender whose conduct merits more than three years will merit a higher sentence if his conduct is within more than one of categories (a), (b) or (c) than one where conduct is within only one such category. 18. Sentences approaching the ten year maximum will be appropriate in very serious cases where the defendant has a previous conviction either for dealing in child pornography, or for abusing children sexually or with violence." The Court went on to point out that the level of sentence indicated was appropriate for an adult after a contested trial and the offender being without previous convictions. 24. At paragraph 20 the Court turned to aggravating circumstances. We need not list them all. They include a large number of images and a sophisticated approach to trading. Mitigating factors include, of course, a good character and an early plea of guilty. 25. The Recorder, having taken time to consider the submissions made to him, said: "It is clear the prosecution cannot establish as to what sort of level, on what is sometimes called the Oliver scale going from 1 rising to 5, the material which was essentially contained within the websites given on this bulletin board, at what level these particular images centred. But it seems clear to me, having regard to the addresses of the URLs, as I understand them to be called, and also the measures which were being taken to ensure that only those who wish could obtain access, that they exceeded Level 2. Beyond that I am not prepared to go because I do not think it would be fair, having regard to the criminal standard of proof." 26. He discounted the 1997 conviction as wholly dissimilar and imposed a sentence of 12 months' imprisonment in respect of count 1, one month's imprisonment in respect of counts 2 to 12 and two months' imprisonment in respect of counts 13 to 16, all sentences being ordered to be served concurrently. The licence period was extended to four years under the provisions of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 , an order was made disqualifying the offender from working with children and as a convicted sex offender he was required to register for ten years. 27. On 9th July 2004 the Solicitor General signed the reference referring this matter to this Court, and the reference, which relates only to the sentence imposed in respect of count 1, was lodged with the Court of Appeal on that day. As is usual, the factual basis for the reference was then considered by counsel who had appeared for the prosecution in the Crown Court and the final reference was signed on 24th August 2004. Up to that point there can procedurally be no ground for complaint, but it did have to be borne in mind that the offender was due for release on 8th December 2004. 28. What happened thereafter is, to say the least, surprising. The offender had decided to seek fresh representation, and we understand that Mr Bogan, who appeared for the offender before us, was not instructed until mid-November. But before he was instructed the Solicitor General decided, in consultation with her advisers, to seek out fresh evidence which it was anticipated that this Court would be invited to receive and consider. 29. That fresh evidence, in the form of four statements and a file of documentary material, was sent to the Court on 26th November, just one week prior to the date fixed for the hearing of the reference and 12 days prior to the respondent's anticipated date of release. The reference had been expected to last one hour. If the contentious issue of whether fresh evidence can be admitted in relation to a reference were to be considered, it was plain that the hearing was going to take far longer than the time allowed for it and thus that the reference was likely to be taken out of the list and relisted after the offender's release. We do not regard that as acceptable and it must not happen again. In the event, Mr Davies decided not to rely on the fresh material, and, even without it, the hearing of submissions lasted for most of the court day. We will return to that topic at the end of this judgment. 30. Mr Davies submitted that the culpability of the offender arises less from the material recovered from him, and more from his dedicated role for providing access for others. We agree. The sentencing judge was alive to this. Mr Davies further submitted that distribution of child pornography is a matter of real concern. Again, we agree. Parliament and the Court in Oliver had express regard to distribution. He invited our attention to the intrinsic nature and purpose of bulletin boards and drew our attention particularly to what was on the Ranchi bulletin board at the time of the offender's arrest. We have already referred to that. He submitted that if the activity was lawful, there would be no need for so much security. That is only partially correct because a bulletin board dealing with pornography which is not unlawful might still attract the attention of those opposed to it and of hackers. 31. But the core of Mr Davies's submissions, as it seems to us, was that if the attention of the sentencing judge had been directed, as it should have been, to the content of the bulletin board at the time of the offender's arrest, he could then have inferred that the material which the offender was facilitating was to his knowledge not low level material, but extended to hardcore paedophilia up to level 5, or at least that he consciously took the risk that it might be material of that kind. 32. We accept that if the circumstances were such that the sentencing judge could and should have drawn either of those inferences then the sentence which he imposed was unduly lenient to a significant degree. But it was not open to the sentencing judge to draw either inference in this case. As Mr Bogan pointed out, reflecting something said by Miss Dix-Dyer in the Crown Court, the prosecution might have been better able to invite the court to draw the inferences if they had accessed some of the sites which were apparent on the bulletin board, but that may not have been technically feasible. Mr Rae plainly came to the conclusion that the material on the bulletin board, although suggestive, was not sufficiently suggestive to make good what is now the prosecution case. That is why he said that he could not go behind the defence assertion that the offender was in ignorance of the contents of the material to which the posted messages referred. That concession having been made by responsible counsel in the Crown Court it is simply not open to Mr Davies on behalf of the Solicitor General to invite us to sentence on a different basis here. 33. If the problem should ever recur, as it may, the moral surely is for the prosecution to avoid being drawn into unnecessary technicalities and to set out in simple terms in a few lines, and at an early stage, the gravamen of its case and the evidence on which it relies to prove it. Such a formulation would be essential if the matter were to be made intelligible to a jury, and, as this case illustrates, it is also valuable when no jury is required. 34. Mr Davies also invited to us clarify the Oliver guidelines, in particular as to whether anal and/or vaginal intercourse between children should fall within level 2. That issue does not arise in this case, and, as we explained during the course of argument, if the matter is to be dealt with other than by reference to the facts of a particular case, it is not a matter now for this Court. 35. We should also say something about the use of programmes designed to erase material. We accept that in an appropriate case the use of some programmes may well assist a court to draw the inference that the material erased was illegal and that the reason for erasing it was to thwart the criminal investigation. But if the prosecution includes in an indictment counts relating to the use of the programmes and then decides not to proceed with those counts after pleas of not guilty have been entered in relation to them, we find it difficult to envisage circumstances in which a sentencing judge could properly, without hearing evidence, infer that the programmes had been used to pervert the course of justice. 36. Once it is clear that we cannot in this case draw the inferences for which Mr Davies contends, the criticism of the sentence passed by the Recorder falls away. He was entitled to find, as he did, that the prosecution had failed to demonstrate that the offender was to his knowledge facilitating the distribution of material at levels significantly in excess of level 2. The fact that he was a distribution organiser was an aggravating circumstance and an organiser facilitating the operation of many distributors may well be more culpable than an individual distributor even on quite a large scale. So a sentence of two years' imprisonment would have been justified if the matter had been contested. But if the sentence were to be higher that would be difficult to reconcile with the sentences suggested in Oliver for those who, for example, distribute images at levels 4 or 5, or are actively concerned in the production of such images. Bearing in mind the plea of guilty and the mitigation which was available, we are not persuaded that the sentence imposed in this case was unduly lenient and we dismiss this application. 37. We turn now to the length of hearing. The Criminal Appeal Office was never advised by anyone on behalf of either the Attorney General or on behalf of the respondent that the hearing in this case would last more than the time allowed for it, namely one hour. That is plainly unsatisfactory and we asked for an explanation. We have now received a letter from the Attorney General's Chambers in which there is an apology for the failure to provide a proper time estimate in this case and a promise that in future the Legal Secretariat to the Law Officers will always provide a time estimate in relation to any case which is considered likely to take more than one hour to conclude. We accept the apology and are content to proceed on the basis now envisaged, but we must also point out that advocates instructed to appear in this Court have a separate obligation to advise the Criminal Appeal Office if, in their opinion, the time allowed for a hearing is or becomes seriously inaccurate. Accurate time estimates are essential if there is to be effective listing and effective listing is in the interests of everyone.

2004_12_07-393.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/3222/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/3222

01e57fd31948cb1453bea0948554d8512506b18871f59c399fd633e499c7f420

[2022] EWCA Crim 456

EWCA_Crim_456

crown_court

Neutral Citation Number: [2022] EWCA Crim 456 Case No: 202100314B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM Mr Justice Jeremy Baker T20177126 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/04/2022 Before : President of the Queen’s Bench Division Mrs Justice Cutts and Sir Nigel Davis - - - - - - - - - - - - - - - - - - - - - Between : Ian Paterson Applicant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2022] EWCA Crim 456 Case No: 202100314B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM Mr Justice Jeremy Baker T20177126 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/04/2022 Before : President of the Queen’s Bench Division Mrs Justice Cutts and Sir Nigel Davis - - - - - - - - - - - - - - - - - - - - - Between : Ian Paterson Applicant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Joel Bennathan QC (instructed by Hadgkiss, Hughes and Beale ) for the Applicant Hearing date: 23 rd November 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Dame Victoria Sharp P. : 1. The applicant, Ian Paterson, was a consultant general surgeon specialising in breast surgery. 2. On 28 April 2017, at the Crown Court at Nottingham the applicant was convicted after an eight-week trial before Jeremy Baker J and a jury, of 17 counts of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861, and 3 counts of inflicting grievous bodily harm contrary to section 20 of that Act. On 31 May 2017, he was sentenced to a total of 15 years’ imprisonment (15 years’ imprisonment on each of the section 18 offences, and 4 years’ imprisonment on each of the section 20 offences, the sentences to run concurrently). On 3 Aug 2017, the sentences were quashed following a reference by the Attorney General under section 36 of the Criminal Justice Act 1988, and increased to one of 20 years’ imprisonment on each count, concurrent (see R v Paterson [2017] EWCA Crim 1625 (Hallett LJ, VPCACD, Carr and Goss JJ)). The applicant now applies for an extension of time of 3 years and 9 months in which to apply for leave to appeal against conviction. 3. We refused leave at the conclusion of the hearing before us. These are our reasons. Background 4. The applicant qualified as a doctor in 1981, and became a consultant in 1994. Between 1997 and 2011, during the years with which this case is concerned, he worked as a consultant at the Heart of England NHS Foundation Trust in Birmingham, and at two private Spire Healthcare hospitals in the Birmingham area, specialising in the diagnosis and treatment of breast conditions. He was regarded as the ‘go to’ specialist by many local general practitioners for patients they regarded as at risk of breast cancer, or who might have breast cancer. 5. In 2011, after concerns were raised, the applicant was suspended first from the NHS and then from the private hospitals. He was interviewed under caution on 8 January 2013. In a prepared statement he said that all the surgical procedures that he had undertaken were appropriate and necessary and he denied any allegations to the contrary. This was the stance he maintained at trial, including in evidence given in his own defence. 6. The prosecution case at trial however was that over a period of some 14 years, in respect of 10 patients, 9 women and one man, the applicant had deliberately misrepresented the contents of medical reports, exaggerated the complainants’ risk of cancer, and advised and knowingly carried out unnecessary surgery including mastectomies. Further, that believing they had a potentially fatal illness, the complainants agreed to invasive procedures and then suffered from the physical pain, discomfort of surgery, and the subsequent physical and mental suffering that it had caused. The 20 counts related to individual operations which the applicant told the patients were necessary, usually, but not always on the basis they had or were at risk of developing breast cancer and all of which operations the prosecution alleged, were in fact, as the applicant knew, completely unnecessary. 7. In opening the case to the jury, the prosecution said that in medicine, as in many different professional fields, differences in opinion may arise between professional people as to what the best course of action is in a particular situation, and knowledge and accepted practices can change over time. But none of that could explain or excuse what was seen in this case. Remarkably, and tragically, the prosecution said, these were operations which no reasonable surgeon at the time would have considered justified. Nor were they dealing with simple mistakes or incompetence. The jury could safely conclude that the applicant knew that these operations were unjustified, from the fact that he frequently misrepresented the results of various tests carried out. 8. The prosecution case was that a sufficiently consistent picture emerged for any realistic possibility that this was incompetence, or genuine difference of professional opinion, or innocent misrepresentation of the findings of reports to be rejected. Shocking though it may seem, so the prosecution said, the applicant was lying to patients and to their GPs, and in some instances to a colleague as well, about the patients’ condition, exaggerating or quite simply inventing risks of cancer in order to justify carrying out serious operations which were quite unnecessary. As a result, the patients and their families lived for many years with the belief that they could be very ill, and underwent extensive, life changing operations for no medically justifiable reason. Amongst the similarities in the evidence supporting the various counts, relied on by the prosecution were the fact that the applicant explained their risk of developing cancer in a way which involved a greater degree of risk than was justified by the radiology and histology reports; evidence from the patients that the applicant failed to advise them about alternative medical treatment apart from the surgical procedures that he carried out; evidence from letters the applicant wrote to the patients’ GPs which did not accurately reflect the radiology and histology reports and which described their risk of developing cancer as greater than was justified by those reports; and the absence of the patients’ names from the agendas of MDT meetings at which the applicant claimed their diagnosis and treatment had been discussed. 9. The prosecution called the complainants who gave evidence of their various conversations with the applicant, the advice he had given them and their decisions to undergo surgery based on that advice; as well as from their family members who had accompanied them to these various consultations. Amongst the other evidence relied on were documentary evidence, medical records, notes etc, reports obtained into the complainants’ condition, and correspondence between the applicant and the complainants’ GPs. The prosecution further called evidence from 3 experts, each of whom were or had been consultants and experts in breast surgery; from one expert breast pathologist and from two employees at the hospitals at which the applicant had worked. 10. At trial, the applicant was represented by Mr Nicholas Johnson QC and Mr Alaric Walmsley (both of whom also represented him at the hearing of the AG’s reference). The applicant did not rely on any expert evidence. In his own evidence, the applicant said, in summary, that each of the patients had consented to the surgery, after receiving appropriate medical advice or advice which he honestly believed was appropriate medical advice. Amongst other things the applicant said that some of the differences between what he had said to GPs in letters to them and the reports available, could have been an error on his part, or because he had spoken to other professionals or conducted his own examination of ultrasound images. In certain critical respects he further challenged the complainants’ accounts of what they had been told, alleging in relation to one of them (Dr Rosemary Platt), that she had lied, or in relation to others, that they had been coached as to what to say. 11. Mr Bennathan QC, fresh counsel instructed on behalf of the applicant, made it clear in the course of his submissions, that it was no part of this renewed application to challenge the conviction by reference to the underlying facts. We are bound to say however, that is clear from the judge’s careful and fair presentation of the evidence that the case for the prosecution, as outlined above, was a strong one. 12. A summary of the factual case in relation to each complainant was set out in the judgment of the Court on the Attorney General’s reference in R v Paterson . It is convenient to repeat it here. 13. In 1997 Dr Rosemary Platt was referred to the applicant for a lump on her right breast. The initial biopsy was unclear as to the presence of lobular carcinoma in situ (LCIS), that is abnormal cell growth, which is an indication of increased risk of cancer. A second opinion was sought. The applicant failed to tell Dr Platt about the outstanding second opinion. He falsely described the lump as malignant. On his advice Dr Platt underwent a wide local excision, an axillary node clearance on 5th August 1997 (Count 1, an offence under section 18). Despite the fact that neither the second opinion nor post-operative analysis confirmed the presence of LCIS the applicant told Dr Platt that it was present. Further surgical biopsies were carried out in May 2000 and May 2001. None of the histology revealed evidence of malignancy, yet the applicant advised a mastectomy. This was carried out on 25th June 2002 (Count 2, an offence contrary to section 18). Subsequently the applicant advised Dr Platt she may have a similar condition in her left breast. He recommended a four-quadrant biopsy which was carried out in October 2001 (Count 3, section 20). Thereafter Dr Platt remained under the applicant's regular supervision for the next 8 years, continuing to believe that she had cancer in her right breast and fearful of it occurring in her left breast. 14. Carole Johnson was referred to the applicant in 1998. By 2002 she had undergone a serious of radiological tests, none of which revealed anything suspicious. Despite this the applicant falsely described Mrs Johnson's condition as "dangerous and difficult". He recommended removing a lump and an excision biopsy was carried out on her right breast in April 2002 (Count 9, section 20). Further unnecessary operations were carried out in 2004 and 2005. Mrs Johnson's insurers queried the need for the continuing treatment. In response the applicant falsely stated that the latest histology had shown there to be pre-malignant potential in Mrs Johnson's breast. Notwithstanding the applicant's claim the insurers refused to fund further treatment. Such was Mrs Johnson's trust in the applicant that she and her husband decided to pay for the treatment themselves. In 2006 the applicant falsely stated that radiology tests had disclosed a suspicious growth and a wide local excision was carried out in July (Count 10, section 18). A further unnecessary excision biopsy was carried out in 2007. 15. John Ingram was referred to the applicant in 2006 in relation to a lump under his right nipple. Tests revealed he had a common benign condition that did not require surgery. The applicant did not reveal the true diagnosis. He falsely stated that Mr Ingram had pre-cancer and needed to have the lump removed. Mr Ingram followed the applicant's advice notwithstanding he suffered from a phobia of undergoing a general anaesthetic. On the day scheduled for the operation he had a panic attack and could not go through with the surgery, but a further date was arranged in May 2006 when he underwent a breast excision (Count 11, section 18). Following that operation a second opinion was sought. Before it was obtained the applicant told Mr Ingram that unless he had a bilateral mastectomy it was inevitable that he would develop cancer. This operation was carried out in June 2006 (Count 12, section 18). The second opinion subsequently revealed the operation was unnecessary. The surgery left Mr Ingram with pain in his chest which required further treatment and remains unresolved. 16. Leanne Joseph had a consultation with the applicant in 2006 after she experienced discharge from her left nipple. An ultrasound scan was carried out which disclosed that the breast appeared normal. Despite this the applicant told Mrs Joseph she had pre-cancerous cells in her milk ducts and needed to have them removed. He offered to carry out the operation the following week. Mrs Joseph was devastated but she trusted the applicant and agreed to the surgery. She took out a loan to pay for the procedure, which was carried out on 23rd October 2006 (Count 13, section 18). In the post operative follow up the applicant falsely told Mrs Joseph it would be necessary for her to undergo the same procedure on her right breast. This was carried out in December 2006 (Count 14, section 18). The second operation caused Mrs Joseph to suffer a significant amount of pain and further surgery was required to excise scar tissue. In 2007 Mrs Joseph became pregnant. On the suggestion of a midwife she consulted the applicant as to whether she would be able to breastfeed. The applicant displayed annoyance that his authority was being questioned by a midwife and confirmed that Mrs Joseph would not be able to breastfeed. When a subsequent scan showed that in fact many of the ducts on her breasts were still connected he hid this fact from Mrs Joseph and recommended that she took medication to prevent milk production. She found her inability to breastfeed particularly distressing. 17. Frances Perks was under the applicant's care between 1994 and 2008. When he first saw her the applicant told Mrs Perks that because of her family history she was at risk of developing cancer and she would require review on a regular basis. In fact Mrs Perks' risk of developing cancer was no higher than normal. Following unnecessary biopsies on the left breast in 2003 and 2007 the applicant falsely stated that Mrs Perks was likely to require a mastectomy. A biopsy on a further lump in 2008 revealed it was benign. However the applicant stated that some ductal atypia had been discovered and went on to carry out an unnecessary biopsy in July 2008 (Count 15, section 20). The applicant sought to persuade Mrs Perks and her insurers that mastectomies of the left and right breast were required. In the event the applicant carried out multiple core biopsies on the right breast in October 2008, notwithstanding the fact that until that time she had experienced no problems with her right breast (Count 16, section 18). On 15th November 2008 the applicant carried out an unnecessary left breast mastectomy followed by reconstructive surgery (Count 17, section 18). 18. Joanne Lowson was referred to the applicant in 2009 in relation to a lump on her left breast. Initial tests showed nothing suspicious. The applicant falsely stated that unstable abnormal cells had been found and that it could not be guaranteed they would remain non-cancerous. The applicant said that the only way to deal with the situation was through surgery and an operation to excise the lump was carried out in April 2009 (Count 18, section 18). In 2010 Mrs Lowson discovered a new lump on her left breast. Initial tests again revealed there were no suspicious features. The applicant again falsely stated that the tests were suspicious and recommended removal. A second excision procedure was carried on 8th September 2010 (Count 19, section 18). 19. Rachel Butler was referred to the applicant in 2005 in relation to a lump on her left breast. The applicant said that although he was not worried about the lump he was concerned about discharge from the nipple. He advised that she needed surgery straightaway. Pre-operative radiology revealed nothing of concern, but Mrs Butler accepted the applicant's advice and he excised part of her left breast. She returned for a consultation in 2011. Further tests were carried out in relation to discharge from the left breast and revealed no abnormality. Instead of telling Mrs Butler the true position the applicant told her she was at high risk of developing cancer and needed surgery immediately. Mrs Butler again accepted his advice and in January 2011 the applicant carried out a procedure (Count 20, section 18). Following this operation Mrs Butler was ill for a long time. The Grounds of Appeal 20. The judge’s directions of law were discussed and agreed in advance with counsel for the crown and for the defence. The first objection to them was raised in the Grounds of Appeal settled by Mr Bennathan, and lodged, as we have said, some 3 years and 9 months after the applicant’s conviction. Those grounds take issue with the agreed directions given on consent and mens rea. In those directions, the judge said in summary, that before the jury could convict the applicant on each count they had to be sure: i) That the patient’s consent was based upon advice which no responsible body of duly qualified and experienced breast surgeons would have given to the patient; ii) That the applicant knew that that no responsible body of duly qualified and experienced breast surgeons would have given that advice to the patient; iii) That at the time he carried out the surgical operation he intended to cause the patient grievous bodily harm. 21. The new argument advanced for the applicant is that the judge’s directions on the issues of consent and mens rea were wrong in law. There is an established legal exemption that protects a qualified doctor carrying out a recognised medical treatment with the patient’s consent, from the laws of assault, and that consent is only vitiated by fraud in respect of certain fundamental details, namely the identity of the doctor or as to the nature and purpose of the act. Since none of the complainants was deceived as to the applicant’s identity (as a doctor) or as to the nature of the surgery to be carried out, the failure to inform them that other doctors would have taken a different view of their condition or treatment, or the (lack of) reasonableness of their treatment, did not vitiate their consent. The judge’s directions engaged with consent, but directed the jury to have regard to reasonableness in a legal test that was more akin to that for an action in negligence than that for a criminal offence under either ss18 or 20 of the Offences Against the Persons Act 1861. Discussion 22. We address first the application for the extension of time. We have carefully examined the reasons given for the delay, and have concluded they are wholly inadequate, both as to substance and in their particulars. We are not satisfied therefore that they justify the lengthy extension of time that is sought, nor do we consider that injustice would be caused by the refusal of an extension. 23. The application for an extension of time was supported by the witness statement of Maslen Merchant, a partner of the solicitors’ firm now acting for the applicant. The witness statement provided only a sketchy account of events between the date of conviction and the date when the Grounds and application for an extension were lodged. The bald chronology however which emerges from Mr Merchant’s statement is as follows. The applicant was convicted in April 2017. He instructed fresh solicitors in November 2018. Though the question of an appeal was then discussed, his fresh solicitors were not instructed to concentrate on that issue until November 2019. The Grounds of Appeal and request for extension were not then lodged until the end of January 2021. 24. A number of things should be noted. First, the delay of 19 months (after conviction, and before the applicant contacted his fresh solicitors) is unexplained. Secondly, the further delay of 12 months that ensued before the applicant’s fresh solicitors “concentrated on the issue of an appeal” was deliberate, as the applicant, so we are told, chose to focus his attention during that period on his submission to a public inquiry arising out of his conviction. Thirdly, there was then a further 14-month delay before the Grounds of Appeal were lodged. Fourthly, it was only during this latter period in 2020 (no specific dates are given) that a transcript of the judge’s summing-up was obtained, and fresh counsel instructed. Fifthly, no blame for any part of the delay can be laid at the door of the applicant’s former solicitors or the Crown Prosecution Service who were, according to Mr Merchant, extremely helpful and cooperative nor is it suggested there were any difficulties faced by fresh counsel as can sometimes happen after a complex trial - because of the need for example to examine extensive documentation or to obtain fresh evidence or to examine the underlying facts in detail. Sixthly, whilst reference is made to the pandemic and some of the logistical difficulties it caused, self evidently these had no bearing on what happened prior to March 2020, and in our judgment do not excuse more than a minimal amount of the substantial delay that occurred thereafter. Seventhly, brief reference was made by Mr Bennathan in his written argument to some mental health difficulties the applicant may have had, but these matters are not referred to in Mr Marchant’s witness statement, and are not therefore grounded in any evidence put before the court. We were told by Mr Bennathan that an application was made that the applicant was unfit to stand trial. That application was however obviously rejected, and whatever the basis for it, it formed no part of the application for leave to appeal or for an extension of time before us. 25. The statutory framework for appeals to the Court of Appeal, Criminal Division is contained in the Criminal Appeal Act 1968. Section 18 (1) of the Criminal Appeal Act 1968 provides that a person who wishes to appeal to the Court of Appeal, Criminal Division or to obtain leave to appeal against conviction should give notice of appeal or notice of application for leave to appeal. Notice and grounds of appeal should be lodged within 28 days from the date of conviction, sentence, verdict, finding or decision that is being appealed: see section 18(2) of the Criminal Appeal Act 1968 and Crim PR 39.2(1)). Section 18(3) provides that the time for giving notice under this section may be extended, either before or after it expires, by the Court of Appeal. Further, an extension of time application should be made at the time of service of the notice and grounds of appeal, and give the reasons for the application: see Crim PR 36.4 and 39.3(1)(e)(ii). 26. The court is asked to exercise its power under section 18(3) to grant an extension of time in many different circumstances and n either the Criminal Appeal Act 1968 nor the Criminal Procedure Rules limit the discretion of the court on the issue whether an extension of time should be granted: see R v Thorsby and ors [2015] EWCS Crim 1, 1 Cr App R(S) 63 (Pitchford LJ, Popplewell and Edis JJ) 27. It is not the case however that an arguable case on the merits is simply a trump card without more. If that were to be the position, the legislative scheme, providing as it does for time limits for appeals with a discretionary power to extend, would be rendered nugatory. So would the requirement in the Rules for the applicant to give reasons for the delay in applying. 28. In Thorsby the defendants appealed the failure to give them credit, under section 240A of the Criminal Justice Act 2003,   for half of the time they had spent on a qualifying curfew. Their appeals were out of time, but the responsibility for this lay with the court and the legal representatives, not the defendants. At paras 13 to 15, Pitchford LJ addressed the general approach that is taken to extensions of time. Having said, as already mentioned, that neither the Criminal Appeal Act 1968 nor the Criminal Procedure Rules   limit the discretion of the Court on the issue whether an extension of time should be granted, Pitchford LJ said that the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so. There are, however, several components that contribute to the interests of justice. The court will have in mind finality, the interests of the parties, the efficient use of resources and good administration. The public interest also critically embraces the justice of the case and the liberty of the individual. Where there is no good reason why the time limits were not complied with, the court is unlikely to grant an extension unless injustice would be caused in consequence. The merits of the underlying grounds will be examined. The judgment is judicial and not merely administrative. The court will be more likely closely to examine the merits of an out of time appeal when it is argued that some principle of law or legal requirement has been ignored or overlooked. 29. For cases involving a failure to provide a defendant with a statutory entitlement, as Pitchford LJ made clear at para 29, applicants would be expected to demonstrate - with particularity - when and in what circumstances they became aware of the entitlement for the first time; that no further delay had occurred after then; and if there had been delay by the applicant himself, the court would be likely to refuse the extension of time. 30. In coming to the view that the application for an extension should be refused, we have in mind that were the application to be successful, one potential outcome could be a retrial, some 5 or more years after the conclusion of the original trial, and many years after the events in question. In that context, we reiterate the point made in Thorsby , that the interests of justice include a number of components, including finality, the interests of the parties (including here, those of the complainants as well as those of the applicant) and the public interest in the efficient use of resources and good administration. We note that the applicant had access to expert advice and assistance from leading and junior counsel at trial. He had access to fresh legal representatives when he chose to instruct them at a later stage. He made a conscious decision not to pursue an appeal. The points now made on his behalf did not involve any lengthy investigation or difficulty. The appeal grounds when they were eventually produced turned on a legal issue arising from a short passage in the directions of law given by the judge in the summing up, which was itself conspicuously thorough and fair. Further, the account given to the court in support of the extension application lacked particularity and left much unexplained. This was the position even though it is well settled that the court requires details of the delay in lodging grounds of appeal and the reasons for it; and where it is clear that the longer the delay, the more convincing and weighty the explanation for any delay will need to be. 31. The underlying merits of the application do not persuade us to take a different view. 32. Extensive submissions were made in writing by reference to cases in which the issue of the effect of consent on criminal liability for certain types of offences, including assault, has been considered. The cases to which we were referred included R v Brown [1994] 1 A.C. 212, R v Richardson (Diane) [1998] 2 Cr. App. R. 200, R v Naveed Tassum [2000] 2 Cr. App. R. 328, R v Dica [2004] 2 Cr. App. R. 467, R. v B [2006] EWCA Crim 2945, R v M(B) [2018] EWCA Crim 560 and R v Lawrance [2020] EWCA Crim 971. A full discussion of those authorities and the principles to be derived from them must await a case other than this one, and which is dealt with by way of an appeal. In brief however, Mr Bennathan suggested, by reference to at least some of these cases, that because the act causing serious harm to each complainant was a medical procedure to which each complainant consented and the applicant was a registered doctor, there has been no assault. However, none of the cases cited to us have determined that in circumstances such as those of this case (i.e. where the patients were not told the true facts about their “medical condition”, where the medical procedure was not for a proper medical purpose – and thus not a proper medical treatment - and where the doctor concerned knew this) that the “medical exemption” applies, and a doctor can act with impunity from the criminal law. 33. We would add that in any event, in a number of respects, the arguments presented seem to us to be somewhat hypothetical and detached from the real issues the jury had to resolve. As can be seen from the nature of the prosecution case to which we have already referred, this case was not, as was suggested in argument, akin to a trial of clinical negligence wrongly transplanted into the criminal forum, and did not turn on the issue of the reasonableness of the treatment provided. The case for the prosecution, as it was opened and ultimately summed up, was not that the applicant’s treatment was unreasonable such that this vitiated his patients’ apparent consent. The essence of the case against the applicant, and what the jury had to be sure of before they could convict, was that no responsible body of qualified breast surgeons would have advised those patients to have the treatment he advised them to have (advice they clearly relied on in consenting to that treatment); and the applicant knew this. Thus in substance, the patients were deceived about the true position by the applicant, who dishonestly and for an improper collateral purpose misrepresented the position to them, thus vitiating their purported consent to the procedures he then carried out. On the unusual facts of this case, we are not persuaded that the directions given by the judge were arguably contrary to authority, or otherwise erroneous. 34. For these reasons, and in agreement with the single judge, the applications for an extension of time and for leave to appeal against conviction were refused.

2022_04_06-5308.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/456/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/456

a99c540bcc02eb7a05db00abc8db5b225425878ea6dcb58067a4eef2813c37af

[2019] EWCA Crim 296

EWCA_Crim_296

crown_court

Neutral Citation Number: [2019] EWCA Crim 296 No. 2018/05227/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday 6 th February 2019 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Burnett of Maldon ) MRS JUSTICE CHEEMA-GRUBB and MR JUSTICE MARTIN SPENCER _______________ ATTORNEY GENERAL'S REFERENCES UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - BRANDEN MARC DANIELS ____________________ Computer Aided T

Neutral Citation Number: [2019] EWCA Crim 296 No. 2018/05227/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday 6 th February 2019 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Burnett of Maldon ) MRS JUSTICE CHEEMA-GRUBB and MR JUSTICE MARTIN SPENCER _______________ ATTORNEY GENERAL'S REFERENCES UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - BRANDEN MARC DANIELS ____________________ Computer Aided Transcript 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) 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 W Emlyn Jones appeared on behalf of the Attorney General Mr M Brook appeared on behalf of the Offender __________________ J U D G M E N T (Approved) __________________ Wednesday 6 th February 2019 THE LORD CHIEF JUSTICE: Introduction 1. On Sunday 29 th July 2018, at about 8.20pm, the offender, Branden Daniels, was driving a stolen Audi A3 with four passengers in an area about five miles north of the centre of Birmingham. They were joy riding. They became involved in a police chase over a distance of about one and a quarter miles. Although in a residential area with a 30mph speed limit, the Audi reached a speed of 80mph and at a little over 70mph approached the junction between Kingsland Road and Wandsworth Road. The Audi was driven by the offender straight over the junction and collided with a Volkswagen Golf being driven by Connor Donnelly with Sarah Giles as his front seat passenger. Sarah Giles, who was only 20 years old, was killed instantly. Connor Donnelly suffered serious injury, as did one of the passengers in the Audi engaged in the criminal enterprise, Dalton Banks. 2. The offender was prosecuted for causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988 (count 1) and for causing serious injury by dangerous driving, contrary to section 1A of the 1988 Act (counts 2 and 3). He pleaded guilty at the plea and trial preparation hearing, having indicated at an earlier hearing in the magistrates' court that he would contest the matter on the ground that he was acting under duress. 3. The offender, who was born on 12 th May 1988 and so was 20 years of age at the time of this dreadful, tragic incident, was sentenced to six years and six months' detention in a young offender institution on count 1 and to concurrent terms of four years' detention on each of counts 2 and 3. He was disqualified from driving for nine years and three months and until an extended test was passed. 2 4. Her Majesty's Solicitor General applies, under section 36 of the Criminal Justice Act 1988, for leave to refer the sentence to this court on the ground that it was unduly lenient. He does so in reliance on three arguments: first, that in arriving at the overall sentence the judge moved too far from his starting point on account of the youth, immaturity and vulnerability of the offender; secondly, that in the round the sentence failed to reflect public concern about offending of this nature, namely, joy riding committed by young men; and thirdly, that the judge should not have given the offender the full discount for his guilty plea, but should only have discounted the appropriate sentence by one-quarter. The Facts 5. Police officers first noticed the Audi A3 because its number plate appeared to have no manufacturer's markings. That led the officers, correctly as it turned out, to suspect that the car was stolen. In fact, it had been stolen three days earlier and was being driven with false number plates. The Audi accelerated away from the police car in Hartley Road. The officers followed with their sirens turned on and lights illuminated. The car continued to accelerate. In Hartley Street the Audi reached 62mph. In Rough Road it achieved a speed of about 80mph. It was then driven the wrong way around a roundabout into Kettlehouse Road. In Kilburn Road it was driven at about 60mph, and at the crossroads where the collision occurred was travelling in excess of 70mph. 6. The force of the collision was such that both vehicles were sent spinning through the air. It was obvious to the police officers who went to the vehicles as quickly as they could that Sarah Giles had died and that both Mr Donnelly and Mr Banks were seriously injured. The other occupants of the Audi ran away. So, too, did the offender. He was chased and caught by local residents. The offender did not have a driving licence and inevitably he was uninsured. 7. Connor Donnelly suffered a life-threatening injury to his aorta, which required emergency surgery and the insertion of a stent. He had multiple rib fractures, lacerations to his spleen and to one of his kidneys. He was sedated in a coma for three days. In his Victim Impact Statement, Connor Donnelly describes his horror on waking to be told of Sarah Giles' death. She was his partner. He had met her at work. He now wished to leave his job because it constantly reminded him of her. He had been a fit and healthy young man but, as a result of the injuries he sustained, will need to take medication indefinitely. He describes himself as "a broken man". 8. Dalton Banks suffered a broken hip, punctured lungs and multiple lacerations to his face and head. He sustained a brain haemorrhage which required emergency surgery, including the removal of part of his skull. He, too, was in a coma for several days and remained in hospital for about three months. Further surgery is planned to insert a metal plate. He has memory problems, slurred speech and has had behavioural changes. 9. The Victim Impact Statements from Sarah Giles' family are deeply moving. There are statements from her parents, her siblings, grandparents and her aunt. Members of Sarah Giles' family are in court today. We extend our sympathy and pay tribute to the calm and dignified way in which they have listened to the proceedings. They speak of the terrible loss of a much loved, vivacious, generous and hard-working young woman. It is a loss with which all are struggling to come to terms. 10. The offender was interviewed under caution on 30 th and 31 st July 2018. He suggested that he had been in the Audi for only a short time. The four passengers, he said, had arrived in the Audi and offered him a lift, which he reluctantly accepted. He said that they told him to drive, that he tried to refuse and only relented in the face of threats of violence from the others. He added that they told him not to stop when the police chase began, and that he ran from the scene because he thought that the others would beat him up. 11. Much of that account was demonstrably false, whatever may have been the impact of peer pressure in what was a joint joy-riding exercise. Video clips on the offender's mobile phone showed him and others in different vehicles being driven dangerously and at very high speeds on earlier occasions. None showed him as the driver. However, and tellingly, there was also footage on his phone taken while the Audi was being driven by him an hour before the collision. The suggestion that he had recently joined the vehicle and was pressured into driving it was clearly not true. 12. The offender had a previous conviction on 31 st October 2017 for driving otherwise than in accordance with a licence and without insurance. He also had an old caution from 2013 for theft from a vehicle. The Sentencing Guideline 13. The Sentencing Guidelines Council issued its definitive guideline in respect of causing death by driving in July 2008. By virtue of section 172 of the Criminal Justice Act 2003, every court must have regard to a guideline relevant to the offending it is considering. This guideline applies only to sentencing offenders aged 18 and over. The maximum penalty for causing death by dangerous driving is fourteen years' custody; and for causing serious injury by dangerous driving, five years' custody. Those maximum sentences reflect the existing considered view of Parliament. The guideline divides cases of causing death by dangerous driving into three different levels. That can be very difficult for those who have lost a loved one to understand because the impact on the family is as serious, whatever the underlying nature of the dangerous driving. 14. Level 1 is reserved for the most serious offences, encompassing driving that involves a deliberate decision to ignore, or a flagrant disregard for, the rules of the road and an apparent disregard for the great danger being caused to others. An offence within level 1 attracts a starting point of eight years' custody and a range of seven to fourteen years' custody. Level 2 is concerned with cases where the driving created a substantial risk of danger. The starting point is five years' custody and the range four to seven years' custody. Level 3 is concerned with driving that created a significant risk of danger, the starting point for which is three years' custody and the sentencing range two to five years' custody. The guideline identifies seven specific additional aggravating features: i) Previous convictions for motoring offences, particularly offences that involve bad driving or the consumption of excessive alcohol or drugs before driving; ii) More than one person killed as a result of the offence; iii) Serious injury to one or more victims in addition to the death or deaths; iv) Disregard of warnings; v) Other offences committed at the same time, such as driving other than in accordance with the terms of a valid licence, driving whilst disqualified, driving without insurance, taking a vehicle without consent, driving a stolen vehicle; vi) The offender's irresponsible behaviour, such as failing to stop, falsely claiming that one of the victims was responsible for the collision or trying to throw the victim off the car by swerving in order to escape; vii) Driving off in an attempt to avoid detection or apprehension; 15. It is apparent immediately that many of these aggravating features are present in this case. The guideline also identifies a series of particular mitigating factors beyond those usually considered in sentencing, although none, as it seems to us, is in play here. 16. Offences of causing death by driving are heart-breaking and particularly difficult to sentence. As a result, they attract a good deal of public attention. The judge's task is to consider with care all of the material that is placed before him or her. 17. In this case the judge provided comprehensive sentencing remarks. At the outset, he noted a most important factor: the tragedy of Sarah Giles' death. He summarised the serious injuries suffered by Connor Donnelly and Dalton Banks, but observed that the latter was to a great extent a contributor to his own injuries. That is because he took part in the joy riding. The judge made it clear that he would sentence in accordance with the guideline. He then turned to the "significant aggravating features". He noted that the offender clearly enjoyed joy riding because of the other incidents of being a passenger in vehicles illustrated on his mobile phone. The car was stolen and was being driven with false plates. The judge did not accept that the offender was bullied into driving, as he had originally suggested, but he did accept that the others in the car had encouraged him in what he did. The judge referred to the absence of a licence and insurance; the fact that the offender had tried to escape from the police; and the very high speeds at which the Audi had been driven in the time leading up to the collision. It was an aggravating feature that the offender attempted to run away. 18. The judge referred to the youth of the offender and also to the significance of the previous driving convictions. He said that he would give the offender full credit for his guilty plea. 19. The judge referred to the pre-sentence report and to the psychological report that were before him. He also referred to testimonials from those who describe the offender as ordinarily a kind and considerate person. The judge said: "I accept that you are of low intelligence, immature, vulnerable and easily led." The offender demonstrated, in the judge's view, genuine remorse, which the judge contrasted with the attitude of many defendants in criminal cases who, in truth, only feel sorry for themselves. 20. The judge referred to R v Robert Anthony Brown [2018] EWCA Crim 1775 ; [2019] 1 Cr App R(S) 10 , for the now uncontroversial proposition that offences of causing serious injury by dangerous driving should be reflected in concurrent sentences, but with an increase in the sentence for the offence involving death. The judge noted, correctly, that the driving in Robert Brown was worse than that with which he was concerned and that it resulted in more than one death. Moreover, he noted that the offender in that case was aged 53 – significantly older than the offender with whom we are concerned. We would add that the offender in that case had an appalling criminal record, with 57 convictions for 209 offences. He had been sentenced previously to a term of imprisonment of six years and he had 30 convictions for driving whilst disqualified. In Robert Brown the features to which we have referred led this court to conclude that there should be a starting point of fourteen years' imprisonment, but reduced by six months to reflect the genuine remorse of the offender. 21. It was common ground before the judge that he was clearly dealing with a level 1 offence. With that in mind the judge said: "In my judgment, the proper starting point for this offence for someone more mature and less vulnerable [than] you would be twelve years' detention. I reduce it to ten years, my starting point, because of your youth and vulnerability. I reduce it further because of your guilty plea, and I think it is proper to give you the full credit for that so the sentence is six years and six months." 22. As we have indicated, concurrent sentences of four years' detention were imposed on each of the counts for causing serious injury by dangerous driving. The Evidence of the Immaturity and Vulnerability of the Offender 23. The judge had before him evidence that the offender had from the outset struggled at school. He was the subject of a Statement for Special Educational Needs when he was 11 years of age and was thereafter diagnosed with Attention Deficit Hyperactivity Disorder. He was bullied at school to such an extent that in 2014 his family decided to move in order to relocate him in a different area. A week before the planned move, the offender's father died suddenly. That had a deep effect on the family and upon the offender. He began to suffer from depression, from which he continues to suffer. He left school at the age of 16 with no qualifications. He did not proceed to any further education and he has never had any consistent work. The limit of his activities has been occasional casual labouring and the like. Shortly before this offending, he was provided with shared accommodation with a support worker on site. 24. A family friend, who has known the offender all his life, said in a document before the judge: "[The offender] does have a few difficulties, his mind being younger than his years for one, and he can find himself easily led." 25. The judge was provided with a psychological report prepared by Dr Tim Hull, dated 8 th October 2018. Dr Hull noted that when he was interviewed by the police, the offender had his mother present as an appropriate adult. That suggests that, despite his being 20 years of age, there were concerns about his ability to be interviewed in the ordinary way as an adult. Dr Hull elicited a history which covered the educational experiences to which we have referred. His mother explained at the time he received the Statement of Special Educational Needs, he was assessed as performing at four or five years younger than his chronological age. Dr Hull quotes his mother as saying: "In my eyes I would not class Branden as an adult. He does not have an adult view on life. He is still like a child. He still cannot read and write properly and he does not see a danger in things. He is very immature." 26. Dr Hull tried to assess the offender's intellectual functioning. He was unable to do so satisfactorily. The raw IQ score that he measured placed the offender in the lowest one per cent of the population. But Dr Hull considered that the real IQ measure was a little higher. He said that he noted that the offender had difficulty in understanding questions put to him, quite apart from the difficulties he had encountered during the police interviews. His overall conclusion was: "All of the evidence I have available suggests that [the offender] is a highly vulnerable individual who, in the presence or absence of specific disabilities has been bullied throughout his life and has suffered from difficulties with his mental health. He is currently not taking prescribed medication for depression. This is likely to exacerbate his mental health problems." Dr Hull confirmed his view that the offender is vulnerable. 27. The pre-sentence report added a little to that information. It spoke of the offender's genuine remorse. It described in particular how the offender spoke only of the impact of his offending on others, rather than speaking of its impact on him. Its author had the same experience as Dr Hull because of the offender's difficulty in understanding questions he was asked. He reviewed the recent history and concluded that he had relatively low maturity for his age and, in the round, viewed him as immature for his age. Amongst the matters that the author of the pre-sentence report recommended that the court should take into account when determining sentence were the offender's "learning issues, immaturity and remorse". Discussion 28. Mr Emlyn Jones on behalf of the Solicitor General takes no issue with the judge's approach in fixing the notional starting point for a mature adult before any discount for a guilty plea at twelve years' custody. Given the fourteen year maximum and the approach to the imposition of concurrent sentences for the offences involving serious injury, there is, in our view, no doubt that twelve years was a proper starting point. That said, as Mr Emlyn Jones very fairly indicated in the course of his oral submissions, there could have been no complaint if the judge's starting point had been a little lower, particularly having regard to the genuine remorse displayed by the offender. 29. The principal ground of attack upon the judge's approach to sentencing is that he reduced his starting point by more than was appropriate, to take account of the offender's youth, vulnerability and immaturity. Again fairly, on behalf of the Solicitor General, Mr Emlyn Jones recognises that some reduction on that account was appropriate. But we are unable to accept the submission that the judge erred in reducing his starting point by the degree to which he did. 30. Both counsel have reminded us of what was said in this court in R v Clarke and Others [2018] EWCA Crim 185 at [5]: " Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters [2005] EWCA Crim 605 , [2005] 2 Cr App R(S) 101 is an example of its application: see paragraphs [10] - [12]. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18 th birthdays. Experience of life reflected in scientific research (e.g. The Age of Adolescence: thelancet.com/child-adolescent; 17 January 2018) is that young people continue to mature, albeit at different rates, for some time beyond their 18 th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18 th birthday." 31. The guideline for sentencing children and young people explains that one of the reasons why offenders aged 18 and under receive sentences reduced by half and more, as compared with adult offenders, is because their culpability is lower on account of their lack of development and maturity. At paragraph 1.5 of that guideline we find this: "It is important to bear in mind any factors that may diminish the culpability of a child or young person. Children and young people are not fully developed and they have not attained full maturity. As such, this can impact on their decision making and risk taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. … When considering a child or young person's age their emotional and developmental age is of at least equal importance to their chronological age (if not greater)." 32. The absence of a "cliff edge" (as referred to in Clarke ) is an important factor when sentencing those over 18 years of age but who are not fully mature. The guideline to which we have just referred does not apply in such cases, but the factors quoted from paragraph 1.5 can weigh in considering the appropriate sentence in cases involving young adults who are not fully mature. No doubt science will in time tell us more about the development of the young adult brain and its impact on behaviour. But there will be cases – and this, in our view, is one of them – where there is material available to the sentencing court which speaks about the maturity and developmental reality of the offender in question. 33. We have summarised the evidence that was before the judge touching on the vulnerability and immaturity of this offender. We consider that the reduction given by the judge in this case on the basis of that evidence was an appropriate reduction. 34. A linked argument was advanced by Mr Emlyn Jones to the effect that public concern surrounding offences of death by dangerous and careless driving, committed often as they are by young men engaged in joy riding, should result in courts being less willing to take full account of youth, immaturity and vulnerability when passing sentence as they would either for other offences or for other offenders. 35. We have seen no statistical breakdown of the ages of those who commit this type of offence, but have no difficulty in accepting from our own experience that many such cases do indeed involve young drivers. However, cases involving death caused by dangerous or careless driving frequently arise in the context of fully mature adults. The case of Robert Brown , to which we have already referred, is an example. 36. The feature to which Mr Emlyn Jones has referred does not, in our judgment, justify a departure from ordinary sentencing practice and principle, namely, to take account of matters such as youth, vulnerability and maturity when passing sentence. 37. Finally, Mr Emlyn Jones submits that the judge was wrong to accord the offender the full discount for his guilty pleas. We agree that the judge was generous in giving the full discount, as opposed to a discount of 25 per cent, which would have represented a direct application of the guideline given the time of which the guilty plea was entered. 38. At his interviews, the offender provided an explanation which suggested that he was at all times under intolerable pressure to do what he did. As we have indicated, the materials found on his phone demonstrated that to be untrue. The offender was given the opportunity to indicate his plea at the magistrates' court. On his account, it was suggested that he would run a defence of duress. That was an evaluation made by those then advising him. Even on his own initial account, the defence of duress would have stood little prospect of success. But his account was untrue. At some point between his first appearance in the magistrates' court and the plea and trial preparation hearing, the offender determined to accept his responsibility. The relevant guideline suggests that ordinarily the reduction for guilty pleas at that hearing should be 25 per cent. There is an exception identified in the guideline, where the court accepts that further information, assistance or advice is necessary before indicating a plea. 39. Mr Brook submits that it was reasonable to await the psychological report before expecting the offender to enter a plea. In our view, that is not this case. The problem with the defence as putatively advanced in interview was that it was based, at least in part, on a series of lies. 40. Whilst we accept that the judge was generous in according the offender the full discount, as is common ground between counsel, our task is not to unpick the judge's reasoning but to ask the broader question: whether the sentence imposed was outside the range of sentence which a judge could have imposed on the basis of all the information available surrounding the offences and the offender. It is only if the sentence is outside that range, and by a margin, that it can be described as unduly lenient. 41. In a sentencing exercise judges have to take account of two broad considerations: first, the harm caused by the offending; and secondly, the culpability. The harm in this case was at the highest level. Inevitably, in the course of an application of this sort, the focus of submission and also the focus of the judgment that we are giving is on questions of culpability. But we emphasise that at no point do we lose sight of the harm that was caused by this offending and its dreadful impact on so many people. 42. We have concluded that it is not possible to consider that the sentence imposed in this case was unduly lenient. We repeat that the twelve year starting point was not the minimum available to the judge in this case. It might have been less. Despite the harm caused, when one takes account of the offender's genuine remorse, his youth, vulnerability and immaturity, and then considers his guilty pleas, the resulting sentence of six years and six months' detention in a young offender institution cannot be stigmatised as unduly lenient. 43. Mr Emlyn Jones, on behalf of the Solicitor General, properly recognised that our task is to consider the outcome in the round. Having reached that conclusion, and in particular taking account of the feature of this case, the judge's starting point could have been less, we conclude that it is appropriate to refuse leave to the Solicitor General to make the reference. 44. We are very grateful to the advocates for their submissions, both written and oral. We repeat our deep sympathy to the family and our admiration for the way in which they have conducted themselves in the course of what must have been an extremely difficult hearing. _______________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________________

2019_02_06-4495.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/296/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/296

a88d7f05a10655f9285640dc0dc4b9420a041628367c2868404bf79c5550f085

[2013] EWCA Crim 257

EWCA_Crim_257

crown_court

Neutral Citation Number: [2013] EWCA Crim 257 Case No: 201205482/C1-201205485/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13th February 2013 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE GLOBE HIS HONOUR JUDGE KRAMER QC (Sitting as a Judge of the CACD) ------------------- R E G I N A v JAE JODIE LOVE LEE HYDE ------------------- Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communica

Neutral Citation Number: [2013] EWCA Crim 257 Case No: 201205482/C1-201205485/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13th February 2013 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE GLOBE HIS HONOUR JUDGE KRAMER QC (Sitting as a Judge of the CACD) ------------------- R E G I N A v JAE JODIE LOVE LEE HYDE ------------------- Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) ------------------- Mr A Morris appeared on behalf of the Applicants Mr G Patterson appeared on behalf of the Crown ------------------- J U D G M E N T 1. LORD JUSTICE RICHARDS: On 30th August 2012 in the Crown Court at Isleworth the applicants, Jae Love and Lee Hyde, each pleaded guilty to a count of burglary. The indictment charged them with an offence contrary to section 9(1) (a) of the Theft Act 1968 , stating under the particulars of offence that they had entered "a building namely 36 Micawber Avenue Uxbridge" as trespassers with intent to steal therein. As all concerned were aware, the building at 36 Micawber Avenue was a dwelling; but the indictment did not refer in terms to a dwelling. The point is important, because section 9(3) of the Theft Act provides by paragraph (a) for a maximum sentence of 14 years where the offence was committed in respect of a building which is a dwelling, and by paragraph (b) for a maximum sentence for 10 years in any other case; and even more significantly because Hyde's antecedents included two previous dwelling burglaries which engaged a statutory minimum sentence of 3 years pursuant to section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 if this was a further instance of a burglary of a dwelling. 2. After the applicants had entered their pleas of guilty the matter was adjourned briefly for their antecedents to be obtained. During the adjournment, defence counsel pointed out to the prosecution that section 111 of the 2000 Act did not apply because the building in question was not particularised in the indictment as a dwelling. Prosecuting counsel thereupon made an application to amend the indictment to substitute the word "dwelling" for "building" in the particulars of the offence. The defence contended that the pleas already entered by the applicants could not be vacated in these circumstances. The judge rejected that contention and ruled that the pleas should be vacated and the prosecution be permitted to amend the indictment. The applicants were then re-arraigned on the amended indictment and each again pleaded guilty. 3. The judge then sentenced Love to 10 months' imprisonment, with 6 months consecutive for breach of an existing suspended sentence; and sentenced Hyde to 876 days' imprisonment, that is 3 years less credit for plea on the burglary count, with consecutive sentences of 2 months and 1 month respectively for breaches of existing suspended sentences. 4. Applications by both applicants for leave to appeal against conviction and sentence have been referred to the full court by the single judge. The focus is on the convictions. It is said that the applicants’ pleas to the indictment in its original form should not have been vacated and that the applicants fell to be sentenced for burglary of a non dwelling, in which case the sentences imposed were manifestly excessive. If they were lawfully convicted of burglary of a dwelling, there is a short argument advanced in respect of Love as to whether the length of sentence imposed was nonetheless excessive. 5. In referring the applications to the full court the single judge noted that the point raised in respect of the convictions was without any substantive merit but that it should be the subject of decision by the full court. 6. The argument set out by Mr Morris in his written skeleton argument on behalf of the applicants was in essence that the court did not have jurisdiction to vacate the pleas of guilty to the indictment in its original form. A plea can be vacated only on application by a defendant, pursuant to the procedures set out in rule 39.3 of the Criminal Procedure Rules. Further, the prosecution was not entitled to apply to amend the indictment after the applicants had pleaded guilty. Accordingly, the amended indictment to which they pleaded guilty on re-arraignment was itself defective and/or unlawful and the convictions based on those pleas are unsafe. 7. That, as we have said, is the essence of the argument advanced in writing. The attention of both counsel was subsequently drawn by the lawyer in the Criminal Appeal Office to the case of R v JW , a judgment of the Court of Appeal dated 21st April 1999. In that case the appellant had pleaded guilty to counts of indecent assault on a female. The particulars of each offence did not aver that the female in question was under the age of 13, which affected the maximum sentence available. There was no suggestion that the appellant had pleaded guilty on any basis other than that the victims were children under the age of 13. When the issue of maximum sentence was raised in the course of mitigation, the judge permitted the prosecution to amend the indictment, pursuant to section 5(1) of the Indictments Act 1915 , to add the age of the victim to the particulars of each count. No application was made to vacate the plea; indeed counsel for the appellant said he did not wish his client to be re-arraigned lest it be taken as an indication of consent to the amendments to the indictment. The judge therefore ruled that the appellant need not be re-arraigned and the case proceeded in the usual way. 8. The argument advanced on the appeal was that once the appellant had pleaded guilty to the indictment in its original form, the trial was over and that the purported amendment therefore did not fall within the statutory power to amend "at any stage of a trial". The court, presided over by Judge LJ (as he then was), disagreed. It held that the argument confused the entry of a plea with the end of a trial. S v Recorder of Manchester [1971] AC 481 showed that the trial is not complete for this purpose until sentence has been passed (thus a plea can be changed up to a point of sentence). The amendment made therefore fell within the statutory power. There was moreover no unfairness in correcting what had been a complete oversight by the Crown. The appellant and his counsel both knew that the allegations in the indictment related to indecent assault on children under the age of 13. Any potential injustice was cured by the judge's offer to allow the appellant the opportunity to vacate his plea. The appeal was therefore dismissed. 9. In the light of the decision in JW , Mr Morris now accepts, as he must, that the judge in the present case did have power to allow the amendment to the indictment. Nonetheless, he adheres to his submission that there was no power to vacate the pleas. He submits that the judge's action in causing those pleas to be vacated without an application by the defence constituted a material irregularity, such that this court can and should interfere by quashing the convictions based on the amended indictment and, in effect, substituting convictions in respect of the indictment in its original form. 10. The Crown's response, as set out by Mr Patterson in his written skeleton argument, is that these convictions cannot be said to be unsafe since both applicants entered pleas of guilty to the amended indictment and both have continued to accept their guilt of the offence charged in that indictment. They were aware in the Magistrates' Court that they were charged with burglary of a dwelling and the case was sent to the Crown Court on charges of burglary of a dwelling. The amendment of the indictment in the Crown Court, once the error in the particulars was identified, caused the applicants no prejudice or unfairness beyond denying them the opportunity to take advantage of the error. No statutory provision or principle of law has been identified which prohibits a court from vacating a defendant's plea where it is appropriate to do so in the interests of justice, and the judge's approach was consistent with the overriding objective of the Criminal Procedure Rules. In any event, as JW shows, the amendment could have been made without vacating the pleas. Even if there was a procedural irregularity it is submitted that it did not render the convictions unsafe. 11. On the reasoning in JW it is clear, in our judgment, that there was power to amend the indictment notwithstanding that the applicants had already entered pleas of guilty to the indictment in its unamended form, and it was not a procedural irregularity for the judge to allow the prosecution to make the amendment. The amendment caused no injustice whatsoever, since it reflected the position as everybody understood it to be and accepted to be correct. 12. We have been shown nothing to support the submission that the judge had no power to vacate the applicants' pleas of guilty in the absence of an application by them or on their behalf to vacate those pleas. It appears to us that the court must have that power. But the point does not in fact matter one way or the other for present purposes. That is because it is established by JW that the judge could have dealt with the case by offering the applicants an opportunity to vacate their pleas but allowing their pleas to stand as pleas to the amended indictment if they did not wish to vacate them. In substance that is exactly the position that was reached by the alternative route adopted in this case, that is by vacating the pleas and allowing the applicants to enter fresh pleas. Since they did enter fresh pleas of guilty the end result was exactly the same as if the judge had adopted the course approved in JW . 13. There was no unfairness in any of this. The outcome was that the applicants unequivocally accepted their guilt of the offence particularised in the amended indictment. There is nothing to cast the remotest doubt on the safety of their convictions. Accordingly, the applications in respect of the convictions are refused. 14. There is one outstanding point, as we have mentioned, in respect of sentence, that is that Mr Morris seeks to contend that the sentence imposed on Love was manifestly excessive even on the basis that this was a dwelling-house burglary. 15. In order to consider that point we should briefly refer to the facts of the burglary. The owner of the property was a disabled lady who was on holiday at the time. The applicants broke into a shed at the rear of the property and used a shovel from the shed to force entry into the house. They broke in by the back door, damaging the hinges. They carried out an untidy search but there was no evidence that anything was stolen. Jewellery boxes were disturbed and cupboard doors opened. What happened was that a neighbour had seen them breaking in, called the police and the applicants were arrested as they tried to flee the scene. 16. Love, who is 36 years of age, had 47 previous offences against his name, including a number of thefts and similar offences. In sentencing him the judge found that this was a Category 2 burglary, with a starting point of 1 year’s custody and a sentencing range going up to 2 years. He referred to Love's criminal record which, in his view, increased the starting point. He took the starting point as one of 15 months and gave full credit for the plea. There was, in addition, a consecutive sentence for the breach of the suspended sentence, in respect of which no complaint is made. 17. What is submitted by Mr Morris is, in short, that the judge was wrong to treat this as a Category 2 burglary; he should have treated it as a Category 3 burglary; indeed from his sentencing remarks it is apparent that he was in some doubt as to the correct categorisation. In our judgment, however, the judge was entitled to treat this as a Category 2 burglary, and in any event when everything is taken into account and in particular when regard is had to Love's antecedents we do not accept that the judge's starting point of 15 months was arguably excessive or therefore that the sentence of 10 months, after full credit for plea, was arguably excessive. 18. Accordingly the renewed application in respect of sentence in the case of Love is also refused.

2013_02_13-3116.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/257/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/257

0092d5d077b944888cce9ebcea695f99a5ba96f31297094001803decc0bf76e8

[2016] EWCA Crim 889

EWCA_Crim_889

crown_court

Neutral Citation Number: [2016] EWCA Crim 889 Case No: 2015/00058/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT His Honour Judge Grieve QC T.20097454 Royal Courts of Justice Strand. London. WC2A 2LL Date: 07/07/2016 Before: LADY JUSTICE MACUR MR JUSTICE FLAUX and RECORDER OF LIVERPOOL (His Honour Judge Goldstone QC) (Sitting as Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: Regina Respondent - and - Patrick

Neutral Citation Number: [2016] EWCA Crim 889 Case No: 2015/00058/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT His Honour Judge Grieve QC T.20097454 Royal Courts of Justice Strand. London. WC2A 2LL Date: 07/07/2016 Before: LADY JUSTICE MACUR MR JUSTICE FLAUX and RECORDER OF LIVERPOOL (His Honour Judge Goldstone QC) (Sitting as Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: Regina Respondent - and - Patrick Neale Orr Appellant - - - - - - - - - - - - - - - - - - - - - John Black QC and David Durose appeared for the Crown David Spens QC for the Defence Hearing dates: 21 June 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Lady Justice Macur: 1. The appeal concerns the definition of ‘fitness to plead’ and the process engaged by the trial judge in the instant trial which proceeded after he found the defendant ‘unfit to be cross examined’. 2. The appellant is a solicitor. On 27/11/2014 he was convicted of being concerned in a money laundering arrangement. On 6 th February 2015 he was sentenced to 2 years imprisonment suspended for 12 months. 3. The facts of the offence need scant reference in view of the issue engaged. The previous litigation history has greater relevance. 4. The appellants co-accused Scheffer and Bakker, were Dutch nationals who worked with the United Nations Development Program (UNDP). In 2004/5 a multi-dollar contract for the supply and distribution of medical aid in the Democratic Republic of Congo (DRC), was to be put out for tender. Scheffer and Bakker negotiated an agreement with a Danish pharmaceuticals company, Missionpharma that in return for assistance in securing a contract the co-accused would receive a percentage of payments made under the contract. Missionpharma was successful in its bid and that company paid the accused 5 per cent of their contractual payments through a company set up specifically for this purpose HC Consultants Limited. Throughout 2006 to 2007 $1.2 million was paid accordingly, which the prosecution asserted were corrupt payments. The appellant, a solicitor in private practice, acted for Scheffer and Bakker. He drafted the agreements, set up HC Consultants (HCC) and became the sole director and signatory on HCC’s bank accounts. Over the course of 2006/7, the appellant dealt with the payments from Missionpharma through HCC’s bank accounts on instructions from his co-accused. 5. The appellant was arrested and interviewed. He gave a prepared statement in his first interview. In the second interview, he answered questions fully and put forward his defence. The appellant said that he neither knew nor suspected that these funds were the proceeds of corruption or crime; and that he acted perfectly properly in his professional capacity at all relevant times. 6. The prosecution case was that the appellant was knowingly engaged in laundering the corrupt monies on behalf of his co-accused and that the appellant knew of the corrupt relationship between the co-accused and Missionpharma prior to 27 th May 2007; the HCC company had been set up specifically to receive and channel the corrupt payments from Missionpharma; his executive and sole control of the funds evidenced the relationship between the co-accused and the appellant. 7. The prosecution relied almost entirely on written statements and documentation, including email correspondence to indicate knowledge of the appellant. 8. The defence case was that the appellant had not known of the corrupt relationship and at no time had known or suspected that he was dealing with the proceeds of corruption. Rather, he had acted perfectly properly in his professional capacity at all relevant times and had understood that HCC had been set up as a means to minimise tax liabilities of legitimate funds. 9. The documents relied upon by the prosecution could equally show that the relationship was of solicitor and client and revealed no knowledge of the offending. The appellant did not always follow instructions of his clients. He was of positive good character, an honest man who worked hard and for long hours; albeit that he was a little disorganised. He had been duped by the co-accused. 10. On 10 th August 2011, in Denmark, Missionpharma accepted that the company was guilty of an offence of bribery in connection with their contract. On 14 September 2012, Bakker pleaded guilty to an offence of receiving corrupt payments. Scheffer was convicted following a retrial. 11. We have transcripts of the proceedings in which the trial process was debated on the 14, 18 and 19 November 2014, but have been additionally assisted as to the surrounding circumstances by trial counsel who (save for the absence of junior counsel for the defendant) all appear as counsel in the appeal. The appellant is represented by Mr Spens QC. The respondent is represented by Mr Black QC and Mr Durose. 12. The first trial of the appellant and Scheffer had commenced in October of 2012. It was terminated when the appellant became ‘unfit’ shortly after his cross-examination by the prosecution had begun. The trial was re fixed in June 2013 but proceeded for Scheffer only due to the continuing ill health of the appellant. This trial was halted for reasons irrelevant to this appeal. 13. The trial of the appellant commenced on 27 th October 2014. He elected to give evidence and gave his evidence in chief from Friday 7 th to Tuesday 11 th November 2014. On Wednesday 12 th November the prosecution were due to cross examine the appellant. The appellant was unwell and the judge adjourned the trial to allow the appellant to be examined by Dr Taylor, a psychiatrist. 14. On Friday 14 th November 2014 Dr Taylor and a colleague Dr Shweikh attended court and assessed the appellant to be unfit to be cross-examined. Dr Taylor, instructed by the defence, had prepared a “Fifth/Addendum Psychiatric report” dated 3 November 2014. Dr Taylor gave short oral evidence in the absence of the jury. He gave his opinion that, having examined the appellant that day and utilising the principles relevant in determining capacity to make a decision in accordance with the Mental Capacity Act 2005, the appellant was unable to participate in his trial. In short, the appellant was unable to be responsive to cross examination, and that that position was unlikely to ameliorate in the future. 15. The judge was informed of Dr Shweikh’s attendance and that her consequent report was to/ may be utilised in any prospective ‘fitness to plead’ procedure. Thereafter, however, Mr Spens QC indicated that the appellant wished the trial to continue and that he [Mr Spens QC] would not be “implacably opposed” to the trial continuing if the prosecution were denied the opportunity to make a closing speech. Referring the judge to the “alternative... if you are satisfied that he is unfit” he said “but a finding of fact against [the appellant] if that is what the jury concluded, is, although not a conviction, something that he would find extremely hard to bear, because it is a form of stigma, whatever the law says about it.” Mr Spens QC implicitly invited the judge to publicly express a view to dissuade the prosecution from continuing with the prosecution in the circumstances. The judge gave his “provisional view” that the “best solution” was to proceed with the trial but to place “quite strict limits” on the prosecution closing speech. Later that day, in the absence of Mr Spens QC, Mr Sims, junior trial counsel for the appellant, thereupon indicated an intention to apply for the discharge of the jury dependent upon the draft prosecution closing speech and the second psychiatric report. 16. Dr Shweikh, instructed by the prosecution, subsequently produced a report dated 17 November 2014. In her report she indicated that “[the appellant] is unable to give evidence in his own defence... due to the nature of his mental state... that renders him currently unfit to plead.” On Tuesday 18 th November 2014, Mr Simms, again in the absence of Mr Spens QC, submitted that the appellant was not fit to plead and the prosecution “in the circumstances should not be permitted to give a closing speech.” The judge referred to the report of Dr Shweikh and what he considered to be “a very firm, unequivocal view that [the appellant] was not fit to give oral evidence...” After further discussion he inquired of Mr Sims, “So that I am entirely clear... your current submission is that, on the evidence before the court, [the appellant] is not fit any longer to stand trial, in the sense that it has reached the point where he is no longer fit to take part and... to consider whether ...to convert to a process of determining whether or not he did the act.” Mr Sims, having sought instructions whilst on his feet, responded that the first submission was that the prosecution should not make a speech although “I am hampered by the fact that I believe the interpretation of the report is that [the appellant] is unfit.” 17. Mr Black QC informed the judge that Mr Spens QC had indicated “his preference for proceeding under the 1964 Act route”, however submitted that “we do believe that if the defence want to proceed with the trial, there can be a fair trial. If the court is of the view at the moment that this defendant is unfit to be tried, then we submit that the procedure has to take place.” The judge posed to him the question of whether, in the light of the evidence of two qualified psychiatrists that the defendant was no longer fit to be tried, “...and if I take the view - and it would be very difficult to see how I wouldn’t ...can we continue to have a trial...” He went on to postulate “The options seem to be: firstly, is the Crown prepared to forgo its closing speech ...with the consequence that this trial continues as a trial in the full sense of the word... or does the Crown say that if the court were to refuse the opportunity to make a closing speech, the appropriate course would be to convert to a trial under the 1964 Act.” After due reflection Mr Black QC advised the judge that “it seems to us... the defence have now raised the issue of fitness to plead. Therefore the procedure ... set out ...in section 4A of the 1968 Act must then be followed.” However, Mr Black QC, referring to the fact that the appellant had already given evidence in chief, indicated that, in deciding the issue of fitness to be tried it was for the judge to assess whether the appellant had been unfit to give evidence, and not merely his inability to give evidence under cross examination. Thereafter the judge indicated his ‘present view’ that the appellant was unfit to be cross examined, but specifically that he had been fit to have given the evidence he already had. He likened the appellant to a vulnerable witness who had difficulty in dealing with part of the trial process and should not be “in any way disadvantaged by not having the opportunity, or by the fact that he is not going to be cross examined” and did not see why the prosecution should not be able make a closing speech, albeit curtailed in view of, what he found to be, the appellant’s involuntary incapacity. 18. On Wednesday 19 th counsel for the appellant again applied for the jury to be discharged from returning a verdict but this was refused. Leading counsel for the prosecution disclosed a draft of his closing speech prepared in accordance with the trial judge’s direction that it should not contain reference to any subject which the appellant had not been in a position to meet in cross examination, and further edited it at the request of the defence prior to delivery. The judge directed the jury during his summing up on the issue as follows: “As you know, Mr Orr has suffered from ill health, specifically depression for a number of years, which as you probably know can be and very often is extremely debilitating and very unpleasant. This fact has had an impact on these proceedings at various stages. In this trial attempts have been made to minimise the difficulties it was likely to cause [the appellant] in the trial process, such as taking more frequent breaks and allowing him to sit with his legal advisers. When the time came, he chose to give evidence on his own behalf and did so for many hours, spread over three court days. The morning after he had finished his evidence in chief... he was clearly not in a fit condition to continue. That remained the position over the course of the following days, during which he was examined by two experienced consultant forensic psychiatrists... They have each independently formed the same firm opinion, namely that [the appellant] was not fit to continue giving evidence, and most particularly not fit to undergo cross examination. They are both equally of the firm opinion that his condition is entirely genuine and lies outside his control. No one suggests otherwise. In view of their opinions, it seemed to me there was no prospect that this position would change within a manageable time in the context of this trial. I therefore decided that he could not continue with his evidence and that the trial should move on to its next stages... It follows from what I have said, and you must accept it from me, that [the appellant’s] inability to continue giving evidence is in no way his fault. He told me, and I do not doubt it, that he would like to carry on giving evidence and to have the opportunity of answering questions put in cross examination... It means that you only have his evidence in chief to consider and that the prosecution has not had the opportunity to test his evidence in cross examination. But that is just a consequence of the unusual circumstances of this case. What you must not do is speculate about the answers he may have given had he been cross examined...” 19. The appellant was convicted as indicated above. The grounds of appeal may be reduced to the following: i) If the trial judge found the appellant was unable to be cross-examined by virtue of his inability to properly respond to questions asked in cross- examination, he should have ruled that he was not fit to be tried, discharged the jury from returning verdicts and then, proceeded to a determination by the jury as to whether the appellant had done the act or made the omission charged against him in accordance with section 4A(1) of the Criminal Procedure (Insanity)Act 1964 ; ii) In the alternative the appellant’s conviction is unsafe since he did not receive a fair trial. The respondent opposes the appeal on the grounds that i) The trial judge was entitled on the law and the facts to rule that, whilst the appellant was unfit to be cross-examined, he was not unfit to be tried. ii) In the circumstances, and particularly given the restrictions placed upon the prosecution closing speech and the careful direction to the jury during the summing up, the appellant had a fair trial. The conviction was not unsafe. 20. It is usually assumed that a defendant, whether or not guilty of the alleged wrong doing, will welcome the opportunity not to be cross examined. The process is necessarily challenging. We do not attempt to speculate what would be the position in this case if the appellant had been deemed fit to proceed with cross examination. A defendant’s refusal/unwillingness to give evidence, including answering questions reasonably asked of him, is subject to possible adverse direction to the jury (see below). That is not to say that the process of cross examination will necessarily damage a defendant’s case nor undermine his position; it may enhance it in the jury’s eyes. 21. On the other hand, failure to cross examine is usually deemed an acceptance of a witness’s testimony, save where the judge has given leave not to cross examine, or managed or restricted the cross examination, on the basis of vulnerability, repetition, or incredulity. However, in all such cases the witness will have been ‘available’ to cross examine and the advocate at liberty to attack the evidence in submissions to judge or jury. It is understandable in these circumstances that the respondent points to the advantage afforded to the appellant in this case, and the corresponding detriment to the prosecution, by reason on the judge’s prohibition upon cross examination and restrictions placed upon the prosecution closing speech, albeit accepted at the time without demur with a view to finalising the case. 22. In all the circumstances, the appellant having given his evidence in chief over the course of several days, dealing in detail with the prosecution case as opened and formulated again during a submission of no case to answer, and having regard to the judge’s direction to the jury as set out above, we have no doubt that there is a strong argument that the appellant, if otherwise fit to participate in his trial, was not disadvantaged, and in other circumstances we would no doubt be persuaded that there was ample sufficiency of evidence to justify the jury verdict and to find that the conviction was not unsafe. 23. However, we have come to the certain conclusion that the issue of fitness to plead, so called in the Criminal Procedure (Insanity) Act 1964, section 4, but we think more aptly to be identified as ‘fitness to participate in the trial process’, since “the supposed disability” can be determined at any stage up to “verdict of acquittal”, cannot be determined by reference to part only of the trial process. The capacity to be cross examined is part and parcel of the defendant’s ability to give evidence in his own defence. 24. The nature and extent of a defendant’s mental incapacity will obviously be fact specific. Section 35 (1) (a) of the Criminal Justice and Public Order Act 1994 caters for the situation when “the physical or mental condition of the accused makes it undesirable for him to give evidence” whether in terms of persuading the trial judge not to give the usual warning of, or negating the possible adverse inference to be drawn by his failure to do so, or answer questions without good cause. This statutory provision would support the respondent’s contention that a finding that the appellant was unfit to give evidence in cross examination does not necessarily determine the question of ‘fitness to plead’. 25. The case of Pritchard (1836) 7 Car & P 303 identified three factors for the jury to consider in determining the defendant’s ability to participate in his trial. At that time, of course, a defendant could not give evidence in his own defence. The test was subsequently endorsed and approved by the Court of Appeal on several occasions. In R v John M [2003] EWCA Crim 3452 , the trial judge had directed the jury (then in charge of determining fitness to plead) with an extended formulation of the test, including the appellant’s ability to give evidence, if he wished, in his own defence. This facility had been described to mean 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 the defendant should be able to remember all or any of the matters which give rise to the charge against him...” [24]. The Court of Appeal referred to them as “admirable directions”. The Court of Appeal in R v Walls [2011] EWCA Crim 443 referred to them “careful directions... elucidating the test in a case where the issue was determined by the jury”. The recent Law Commission Report (Law Comm No 364, [2016] EWLC 364) on ‘Unfitness to Plead’ dated January 2016, favours a statutory formulation of the test to encompass the abilities identified in John M, informed by the corresponding observations in SC v United Kingdom 60958/00 (2005) 40 EHRR 10 . 26. The prosecution did not take issue at trial with the expert opinion that the appellant was unfit to be cross examined and did not do so before us. It is right to observe that these were highly unusual factual circumstances and may have merited a more detailed exploration of the two psychiatrists’ reasons and conclusions, not least in terms of possible means of facilitating the appellant being cross examined in the presence of an intermediary. In any event, we regret that the ‘provisional’ and ‘present’ views expressed and revealed in the transcript of proceedings, and subsequent ruling by the trial judge on the renewed application to discharge the jury from returning a verdict, do not articulate a ‘rigorous examination and a careful analysis against the Pritchard criteria as interpreted in Podola.” (See Walls [38]) 27. The trial judge was referred to Pritchard, John M and Wall but his attention was not specifically drawn to section 35. He would not have been assisted in that he was presented with something of a moving feast in terms of the different, and sometimes mutually inconsistent, submissions made by the appellant’s trial counsel as to whether and by what means the trial should proceed, nor the failure of the prosecution submissions to address the nature and extent of the disability or invite him to make specific findings on the same. The judge’s ruling is ambiguous; however, it appears that his finding that the appellant’s “particular difficulty was he was not fit to undergo cross examination, but that did not mean that he was not fit to - that the other, up until that point (underlining supplied) the Pritchard criteria were met”, must implicitly mean that he found that thereafter they were not. 28. In the absence of more detailed cross examination of the psychiatric opinions, we are unable to conduct the exercise retrospectively in order to form an assessment as to whether the extent of the appellant’s disability did indicate an absolute impediment to him giving evidence in cross examination and thereby rendering him ‘unfit to plead’ rather than making it ‘undesirable for him to give evidence’ which appears to be at the heart of the respective contentions of appellant and respondent. In light of the trial judge’s implicit finding indicated above, and the substance of his direction in this regard to the jury, we must assume that he considered the mental health of the appellant an absolute bar to him being allowed to be cross examined. 29. Once the issue of fitness to plead has been raised it must be determined. In this case, the judge explicitly found that the appellant had been fit to participate in his trial up to the point of cross examination and thereby implicitly determined that the appellant was no longer able to fully participate in his trial within the ‘Pritchard’ refined criteria. In these circumstances, the procedure to be adopted was clearly set out by section Criminal Procedure (Insanity) Act 1964, 4A. 30. We agree with the submission that this is a statutory mandatory requirement which cannot be avoided by the court’s general discretion to order proceedings otherwise, however beneficial to the defendant they may appear. It follows that, in this case, the jury should not have been allowed to return a verdict, other than a verdict of acquittal if they were not satisfied on the evidence already given in the trial that the appellant did the act charged against him. 31. The appeal against conviction must be allowed.

2016_07_07-3800.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/889/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/889

596a3f64f864da43f1f4238e22ea42cfc11643abf3a2755940df63fbce5056d9

[2014] EWCA Crim 927

EWCA_Crim_927

crown_court

Neutral Citation Number: [2014] EWCA Crim 927 Case No: 201303016C5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEICESTER CROWN COURT HHJ HEAD T20127048 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/05/2014 Before : LADY JUSTICE MACUR DBE MR JUSTICE BLAKE and MR JUSTICE STUART-SMITH - - - - - - - - - - - - - - - - - - - - - Between : AS Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss A LUCKING Q

Neutral Citation Number: [2014] EWCA Crim 927 Case No: 201303016C5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEICESTER CROWN COURT HHJ HEAD T20127048 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/05/2014 Before : LADY JUSTICE MACUR DBE MR JUSTICE BLAKE and MR JUSTICE STUART-SMITH - - - - - - - - - - - - - - - - - - - - - Between : AS Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss A LUCKING QC (instructed by Emery, Johnson, Astills Solicitors ) for the Appellant Mr S LODY (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 1 May 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Macur DBE : 1. This is an appeal against conviction brought with the leave of the single judge. 2. On 10 May, 2013, AS was convicted of two counts of the rape of his wife, KS on a date between 15 December 2005 and 24 January 2012. 3. On the same occasion he was acquitted by the jury of four other counts of the rape and one count of assault by penetration of his wife and, on the direction of the trial judge, of a sole count of common assault. 4. There are two grounds of appeal. The first, that the trial judge should have acceded to a submission of no case to answer at the conclusion of the Prosecution case. The second, that the verdicts are illogically inconsistent and are, in the circumstances, unsafe. 5. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. No matter relating to the complainant shall, during her life time be included in any publication if it is likely to lead members of the public to identify her as the person against whom the offence is alleged to have been committed. 6. The background is as follows: The Complainant travelled from India in December 2005, ostensibly as a carer for the Appellant’s mother. There is every likelihood that she was earmarked as a future wife for the Appellant, 16 years her senior, in the event that his then wife was unable, despite undergoing IVF, to bear him children. She alleged that on the day of her arrival in the UK, she was indecently assaulted by the Appellant as he drove the car used to collect her and his mother from the airport and subsequently raped by him that same day when at his sister’s home address (Manor Road for identification purposes) whilst his mother and young nephew were in the house. 7. Thereafter, she said, both prior to their subsequent marriage in February/ March 2007 and afterwards, he would repeatedly insist on having sexual intercourse with her despite knowing that she did not consent to the same and had either verbally and physically indicated her unwillingness or else had, to his knowledge, submitted to his will. Specifically, on an occasion before marriage and on the eve of a family outing to Alton Towers in June/July 2006, he had taken her to an unoccupied house belonging to one of his friends (in Tudor Road for identification purposes) and had there stripped her forcibly, slapped her face and twisted her arm while he was having sex, threatened to tie her up, struck her with a metal rod on her legs and then had sex with her again. The next day her arm had been swollen, she was cradling it and was asked by a relative the reason why. Also, on a date in January, 2012, when she, the Appellant and the two children of the family were sleeping in the same bedroom, the Appellant had insisted on having sexual intercourse despite her fears of disturbing the children. On his first approach she had submitted to his advances , but he had returned after viewing pornographic material and had digitally penetrated her despite her resistance and shortly afterwards had sexual intercourse with her despite her verbal refusal, her lack of physical response and the fact she was half asleep. This incident was said to have happened at the end of her relationship with the Appellant. Shortly afterwards, she left. 8. The specific allegations attributed to the date of the complainant’s arrival in the UK, the day before the family outing to Alton Towers and the incident in January 2012 founded the allegations in Counts 1, 2, 5, 6 and 7 of the indictment. That is, we are satisfied that the trial judge directed the jury in terms, that despite the complainant’s allegations that she was raped on other visits to the unoccupied house in Tudor Road, they were to have regard to the specific allegation referred to above when considering their verdict in relation to Count 2 on the indictment . 9. Counts 3 and 4 on the Indictment were sample counts relating to the period between the complainant’s arrival in 2005 and the appellant’s arrest after the events alleged by the complainant to have occurred in January 2012. They were not further particularised for the jury by way of time or location and could, the trial judge directed the jury, relate to the allegations of the complainant in relation to Manor Road, Tudor Road or presumably, elsewhere. He directed them unequivocally that in order to convict on count 3 the jury would have to be sure that on at least one occasion other than those referred to in Counts 1, 2, 5, and 7 the Appellant raped the complainant, and in order to convict on count 4, that they should be sure that on at least one further occasion he had done so, other than on those referred to in Counts 1, 2, 5, and 7. 10. The Appellant’s case was to deny the act of sexual intercourse as alleged in Counts 1, 5 and 7. He accepted that he had had consensual sexual intercourse once at Manor Road and on a number of occasions with the complainant at Tudor Road but denied any occasion of violence as alleged or at all. Otherwise, he maintained that sexual intercourse was at all times consensual and often instigated by the complainant. 11. The jury acquitted the Appellant of all specific counts. This forms the basis of the second ground of appeal. Miss Lucking QC, on behalf of the Appellant draws upon her arguments in relation to the first ground of appeal to support her arguments concerning the second as we indicate below. 12. Miss Lucking’s submission to the trial judge was “in very simple terms, that so far as the evidence of the complainant is concerned in this case, it is so fundamentally contradictory and out of common sense” as to trigger “the second limb of Galbraith”. That is, she contended that the judge should conclude that “the Prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it”. She referred the judge to 37 discrepancies in the complainant’s evidence, as admitted to be so by the prosecution in the court below, which went to “significant issues of fact”. Recognising the obstacles created by the ratio in R v Galbraith 73 Cr.App.R 124 , she posed the explicit question to him: “How bad does a case have to be evidentially in order to satisfy the second limb of Galbraith?”. 13. Mr Lody, on behalf of the prosecution reminded the judge that the allegations of rape and other sexual assault were maintained, and argued that the evaluation of the inconsistencies as they stood amounted to attacks upon credibility and reliability which were matters for the jury. 14. Both Miss Lucking and Mr Lody have maintained their respective positions and advanced the like arguments before us today. 15. The judge in his ruling reminded himself of the judgment in Galbraith and the more recent Goddard & Fallick v R [2012] EWCA Crim 1756 he concluded that “the half time judge asks himself or herself what the effect is, firstly of a proper direction. And in this case, a proper direction…relates to and directs the jury to their proper approach to inconsistencies in a witness’s evidence ...Secondly, Goddard is emphasising that the question is not whether all reasonable juries would be capable (properly directed) of convicting, but whether a reasonable jury would be, and again emphasising, as Galbraith does, putting the Prosecution case at its highest.” He went on to say, “ In my judgment, the application has to fail for this reason: recognising the substantial number of inconsistencies and/or fresh matters (many of them of real significance) raised by the complainant in the course of her evidence, those criticisms , properly made, are criticisms that have to do with her reliability and credibility. That, at the end of the day, is a jury matter.” 16. Miss Lucking was unable to demonstrate to us that the trial judge mischaracterised these ‘inconsistencies and/or fresh matters’ as issues going to the credibility and reliability of a witness. Patently, we consider they were capable of this classification. We recognise, as did the trial judge that the overall effect of the complainant’s additional assertions or clarification of previously recorded evidence was capable of diluting her evidence, but the judge did not consider that he was entitled to adjudicate that they necessarily did so. 17. He obviously had in mind, as he self directed himself he must at “half time”, the general terms of the direction he would give to the jury in this regard. Thus we find in his summing up, having referred the jury to the list of agreed occasions on which the complainant gave a “different version then and now” and had “not said before”, his direction to the jury as to the impact of those inconsistencies. He directed the jury that “When you consider the totality of her evidence, as it has unfolded, I direct you that the experience of the courts is that it is unwise to approach the issue of inconsistency with an assumption, a preconception, that a true account is always consistent or that an inconsistent account is always untrue: it depends on the circumstances and the individual….Each inconsistency…must be examined by you to decide whether it’s significant concerning the truthfulness of her account as a whole. If you are sure, nonetheless, that the essential parts of her account are true on the count you are considering, you will apply that conclusion in your verdict on that account…If you are left in doubt about the truthfulness and reliability of her account, whether overall or on one or more counts because the inconsistencies can’t be satisfactorily explained, you must find the defendant not guilty of that or those counts.” We consider this direction to be unimpeachable in this regard but revisit it later. Miss Lucking expressly indicates that she makes no complaint about the substance of the summing up, whether as to directions in law or the summary of fact. In these circumstances this first ground of appeal cannot withstand critical scrutiny. 18. The second ground of appeal has proved more troublesome. Mr Lody concedes that there is an inconsistency in the verdicts but attempts to justify the differences in outcome. However, we find that his suggested line of reasoning to account for the unusual combination of verdicts to be implausible and not in accordance with the complainant’s evidence as, we are told by both he and Miss Lucking, was correctly summarised to the jury. 19. Miss Lucking is obliged to concede, and has done so, that there is some evidence, which is capable of substantiating the allegations of rape which are otherwise not particularised in Counts 3 and 4 and are generalised assertions that sexual intercourse happened on other occasions in the appellant’s sister’s house and in Tudor Road and other occasions during the marriage which she did not consent to, and at times when she made clear her unwillingness by saying no or else demonstrated by her response, or lack of it, a resignation to the same by way of submission. However, she argues that for whatever reason the jury had doubts regarding the complainant’s allegations as to actus reus, lack of consent or the appellant’s knowledge or reasonable assumption of the same on the specific occasions referred to in Counts 1, 2, 5 and 7, that same jury reasonably could not have reached guilty verdicts in relation to Counts 3 and 4. The only plausible explanation for them doing so, she argues, is that the appellant could not address them specifically which may predicate a wrong approach to the burden of proof or an assumption that something must have happened. 20. The possibility that the jury may acquit the defendant on counts 1, 2, 5, 6, 7 but still convict on counts 3 and 4 never occurred to her at trial. If it had she would have advanced a submission that the judge should have directed the jury that as an exception to the general rule if they were unsure on the specific counts preceding the occasions on counts 3 and 4 they should also acquit on these counts. 21. Acknowledging, as we do the fact that there is evidence – in however a nebulous form – that , if accepted by the jury could legitimately base the conviction , we have pondered whether these inconsistent verdicts are therefore inexplicable/ illogical and unsafe in the light of the judge’s directions of law, which prior to this hearing Miss Lucking did not criticise. Ultimately we have come to the conclusion that they are unsafe. 22. R v Dhillon [2011] 2 Cr App R 10 conveniently identifies the principles to be deduced from the long line of authorities in respect of alleged inconsistent verdicts. They are uncontroversial and do not require re-airing here, save to iterate that “each case turns on its own facts and no universal test can be formulated”. 23. In this sense, although we are struck by the similar factual background between this case and that of R v Michael Stephen J [2010] EWCA Crim 1768 and Miss Lucking obviously prays it in aid we ignore its outcome for the purpose of our own analysis of the particular facts in this case. 24. The stark reality is that the evidence of the complainant in relation to the elements of rape and sexual assault contained in the specific counts was plain and unshaken. Namely, regarding Count 1, there had been sexual intercourse; she did not consent and actively demonstrated this. In respect of Count 2 she had been violently assaulted before, during and after sexual intercourse demonstrating her lack of consent and the Appellant’s understanding of the same. In so far as Counts 5, 6 and 7 were concerned her will had been suborned and she indicated her passive resignation and submission to all that had occurred. It is far less clear in relation to the other occasions when sexual intercourse occurred. There were said to be several other times in Manor Road when she had said no, made a sound or moved away. There were other occasions in Tudor Road when she was aware that she was isolated and unable to resist. There were other times when she was taken out to a car park near Market Harborough and was placed in a similar position. 25. We are very alert to the potential impact of the complainant’s evidence in relation to Counts 5, 6 and 7. Reluctant consent and submission to sexual intercourse may often be difficult to delineate. If these were the only verdicts of Not Guilty the outcome of this appeal may have been very different. However, even then the problem posed by the facts of this case mean that the guilty verdicts of the jury are impenetrable in terms of the period of time concerned, the location of the alleged assaults and consequently whether this was an occasion of the complainant’s withheld consent or submission. Miss Lucking accepts that she should have sought further particulars. However, Mr Lody’s concession that it was impossible for the judge to give a “Brown” direction, that is to require unanimity (subject to a majority direction) upon the ingredients of rape in relation to incidents which the Prosecution incorporated within the sample counts they being without even the most basic particulars, for example “in Manor Road when she demonstrated her lack of consent by moving away”, or “in Tudor Road when isolated from assistance she submitted to his advances although the Defendant knew she did not consent”, demonstrates the danger that arises. The danger is all the more acute where, as here, the complainant does not allege that all sexual intimacy throughout this period was enforced or unwanted. 26. As it is, this Court has clear indication that the jury were not sure, on the basis of some part of the complainant’s evidence, of either of the scenarios posed at the outset or conclusion of the relationship. In these circumstances Mr Lody’s reference to the effects of a relationship of attrition upon which he depended so heavily at trial and which he says this Court may comfortably assume was the basis of the jury’s guilty verdicts because “they may well have thought that something like this was bound to have happened” strikes a discordant note in several respects and heightens our anxieties. 27. There was no objection taken to the usual direction that the jury should consider each count separately, and nor could there be, but this was a case where, standing back from the fray, we conclude that there should have been an explicit warning to the jury of the impact of its not guilty verdicts on specific counts vis a vis the sample counts. That is, we cannot see that a reasonable jury could, on the paucity of the stand alone evidence concerning the add on sample counts, be sure of guilt in relation to them if they rejected the specific events. This factor in itself would render the verdicts unsafe quite apart from inconsistency. 28. However, we go further and incorporate the approach of Toulson LJ (as he then was) in R v Cross [2009] EWCA Crim 1553 ( as did the Court in Dhillon) to the effect that verdicts are inconsistent where “they cannot plausibly be explained by any line of reasoning which the jury could have adopted looking at the evidence as fair minded ordinary people. The appellate court has to apply this test in the context of the issues which were presented to the jury, but that does not of course mean that a jury have to view the evidence bearing on those issues in the way that was argued for either by the prosecution or defence.” 29. In the circumstances of this case, whilst the numerous inconsistencies in the complainant’s evidence as identified and agreed at the conclusion of the prosecution case cannot usurp the jury’s assessment of credibility and reliability in accordance with the direction of the judge, once they did so in relation to counts 1, 2, 5, 6 and 7 they were bound to do so in relation to Counts 3 and 4. We conclude that fair minded and ordinary people could not have ignored the impact of the obvious doubt they felt as regards the integrity and credence of the allegations in relation to specific counts when considering the available and, as Mr Lody realistically concedes, scant evidence in relation to the sample counts which were said to have occurred at some stage during a six year period. That the judge did not so direct them in his otherwise careful and conscientious summing up underpins our conclusion that these convictions are unsafe. 30. The appeal is upheld. The convictions are quashed. Any ancillary orders flowing from the convictions are set aside. 31. We invited arguments as to whether we should order a retrial entirely without prejudice to our reserved decision. Having heard from Mr Lody and Miss Lucking we are satisfied that the Appellant could not be guaranteed a fair trial in the circumstances. It will be impossible for any case to be put without reference to those allegations previously found to be unproved. The prejudice that will inevitably flow is incapable of amelioration. We reject any such application that would otherwise be made.

2014_05_14-3417.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/927/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/927

53c9fbaae5577bdf038d37c1d15c8e6c143ebafe5c07ee201cd12e35e684cdf4

[2017] EWCA Crim 2464

EWCA_Crim_2464

crown_court

No: 201704208 A4 Neutral Citation Number: [2017] EWCA Crim 2464 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 14 November 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE GOSS and HER HONOUR JUDGE WALDEN-SMITH (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - R E G I N A v THOMAS ANTHONY CORLETT - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as D

No: 201704208 A4 Neutral Citation Number: [2017] EWCA Crim 2464 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 14 November 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE GOSS and HER HONOUR JUDGE WALDEN-SMITH (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - R E G I N A v THOMAS ANTHONY CORLETT - - - - - - - - - - - - - - - - - - - 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 P Jarvis appeared on behalf of the Prosecution Mr SPW Christie appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - 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: 1. The Attorney General seeks leave to refer sentences passed on the offender, now aged 27, at the Crown Court of Bolton on 25 August 2017 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. 2. At a plea and trial preparation hearing on 25 January 2017 the offender was arraigned on indictment T20160442. He pleaded not guilty to charges of perverting the course of justice, witness intimidation, dangerous driving, handling stolen goods and making threats to kill. He pleaded guilty to a single offence of criminal damage and the case was then put over for trial on the remaining charges. 3. At a further plea and trial preparation hearing on 26 January the offender was arraigned on indictment T20160441 which contained a single count of handling stolen goods. 4. On 6 June, the first day of the trial, the prosecution obtained leave to add three counts to indictment T20160442: Count 1, assault occasioning actual bodily harm, Count 2, possession of a firearm with intent to cause fear of violence and Count 9, putting a person in fear of violence by harassment. 5. The offender was then arraigned on these charges and re-arraigned on some of the other counts to which he had pleaded not guilty in January. He entered the following pleas: Count 1, assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 , the particulars being that on 11 December 2016 he assaulted Charlotte McGinty (‘the victim’) thereby occasioning her actual bodily harm. Count 2, possessing an imitation firearm with intent to cause fear of violence, contrary to section 16 A of the Firearms Act 1968 , the particulars being that on 11 December 2016 the offender had in his possession an air pistol with intent to cause the victim to believe that unlawful violence would be used against her. Count 3, doing an act tending and intended to pervert the course of public justice, the particulars being that between 10 December and 18 December 2016 the offender contacted the victim and asked her to retract her complaint of assault. Count 5, dangerous driving, contrary to section 2 of the Road Traffic Act 1988 , the particulars being that on 27 December 2016 the offender drove a Nissan Juke motorcar dangerously on Golborne Road in Golborne. Count 9, putting a person in fear of violence by harassment, contrary to section 4(1) of the Protection from Harassment Act 1997 , the particulars being that between 10 December and 28 December 2016 the offender threatened the victim with violence on at least two occasions. 6. The offender had previously pleaded guilty to Count 8, criminal damage, the particulars of which were that on 27 December 2016 he had damaged a CCTV system belonging to the victim. 7. The prosecution offered no evidence on Count 4, witness intimidation, Count 6, handling stolen goods, and Count 7, making threats to kill, and not guilty verdicts were entered accordingly. 8. On 25 August 2017 the offender was sentenced in respect of the six counts to which he pleaded guilty on indictment T20160442 and also in respect of the single one count of handling stolen goods on indictment T10160441. 9. The sentences were, 3 months' imprisonment for the offence of handling stolen goods; 12 months' imprisonment consecutive on Count 1, the count of actual bodily harm; 12 months' imprisonment concurrent on Count 2, the offence of possession of an intimidation firearm with intent to cause fear of violence; 3 months' imprisonment consecutive on Count 3, perverting the course of justice; 10 months' imprisonment consecutive on Count 5, dangerous driving; 2 months' imprisonment concurrent on Count 8, criminal damage; 4 months' imprisonment consecutive on Count 9, harassment by putting the victim in fear of violence. The total was a term of 32 months' imprisonment. 10. The court also made the offender subject to an indefinite restraining order to prevent him from contacting the victim and from going within 800 metres of her address. 11. In addition, the court ordered the offender to be disqualified from driving for a period of 2 years and a further 8 months to take into account time left to serve in custody and then until such time as he passed an extended driving test. A victim surcharge order was also made against him. 12. The offender and Charlotte McGinty entered into a relationship in about March 2016. Both she and the offender recognised that he had mental health problems, although the precise nature of those problems was unclear. 13. On 12 August 2016 the owner of a grey Vauxhall Astra parked his car on Kirkham Road in Leigh. He locked it and left it there overnight. When he returned the next morning it was gone. The car was worth about £6,000. 14. On 8 November 2016 police officers received a report of a suicidal male in Rydal Street, Leigh. While en route the officers received a further report that the male had driven off in a Vauxhall Astra. The officers arrived at Rydal Street and spoke to Charlotte McGinty. She said that the offender had driven off in a stolen car with a false licence plate. He was stopped on foot a short distance away. The car was found parked nearby. The licence plates on the car were false. It transpired that this was the stolen Vauxhall Astra. 15. The police arrested the offender. Because of his behaviour he was sectioned under the Mental Health Act. He was released shortly afterwards and on 19 November was interviewed under caution about this offence. He said a couple of men had approached him some weeks before and offered to sell him a car. He thought the deal was "dodgy" but as they only wanted £150 for it he felt it was too good to turn down. The men gave him a key to the car and he gave them the money. These events gave rise to the handling charge. Following this the offender was released on bail. 16. On 11 December 2016 he and Charlotte McGinty were together at her house. He woke up in a bad mood that morning. She went downstairs to make them both a cup of tea. When she came back upstairs with the tea he said he didn't want it and if she left it for him he would throw it at her. 17. She put his tea down and began to leave the room. The offender then launched himself out of bed and grabbed her by the throat with one of his hands. He started to squeeze. She pushed him away and ran out of the door and down the stairs. He shouted after her "It's okay, I'll just fucking shoot you". She turned to look at him and saw he was sitting on the edge of the bed holding an air pistol. She recognised it as his. He had told her some time before he was going to get rid of it. 18. The offender fired the pistol at her. The pellet struck the left side of her torso causing her immediate pain and discomfort. She ran downstairs and grabbed the telephone to call the police. As she was talking, the offender came into the room. He threw her on to the floor and stamped on her arm to make her drop the telephone. She was screaming for help. 19. The offender went to the front door in order to get out of the house but it was locked and he did not have a key. Instead he tore the blinds away from the window in the front room and climbed out and ran off, just as the victim's neighbour came to the front door to see what all the commotion was. 20. The police arrived at her house a short time later. She told them what had happened and then went to hospital for treatment. She was found to have an injury to the left side of her torso. What the judge described as "a nasty weal", as well as bruising to her arms and leg. The offender's possession and use of the air pistol, and his attack on the victim, both in the bedroom and in the front room of her home, were charged as Counts 1 and 2 on the indictment. 21. The police were not able to apprehend the offender straight away; but he continued to contact the victim by telephone, both in calls and texts. In his text messages he told her how much he loved her and missed her. He also begged her to retract her statement to the police and said he would kill himself if she did not do as he asked. This conduct was charged as Count 3 on the indictment. 22. The victim reluctantly agreed to go to the police and withdraw her complaint against him which she did on 17 December. The offender accompanied her. Initially he was arrested but the following morning he was released with a Domestic Violence Protection Notice informing him not to contact the victim. 23. By now she had moved home, but following his release from custody on 18 December he turned up at her new address and begged her to take him back. He reiterated that he would kill himself if she refused to resume their relationship. Fearing that he would hurt himself if she refused, she reluctantly allowed him to stay. She did not want to be with him but felt in the circumstances she had little choice. 24. On 19 November 2016 the owner of a Nissan Juke car was at home. The car was parked on her driveway. Just after midnight she looked through the window and saw the headlights of her car turn on. Someone drove it off her driveway and sped off. She reported this theft to the police. 25. On 20 November, the next day, the offender turned up at Charlotte McGinty's home in this car. He said he had bought it from his cousin. On 27 December 2016 she and the offender went in this car to visit her mother. On the way he said he needed to stop off and feed his dog which was living with a friend of theirs in Leigh. He asked her for some money to buy dog food but she refused. They started arguing. 26. The offender suddenly said "Fuck you, then" and performed a handbrake turn in the middle of the road and drove back the way he had come. He was driving at about 40 miles an hour in a residential area. He said to the victim "It's all right, it's stolen anyway, so I'll just kill us both". He then pulled the handbrake up again and let go of the steering wheel. 27. The car spun into the wall of a house, causing a considerable amount of damage to the wall, a gate and to the car itself. The victim was not wearing a seat belt, and hurt her right knee in the crash. She dived out of the car and the offender then sped off. This count was charged as Count 5 in the indictment, dangerous driving. The overall damage was estimated to be in the region of £15,000. 28. Charlotte McGinty walked home. As she was approaching her house she saw the offender walking along the street towards her. He said he had parked the car round the back of her house. He also told her he knew she had not been wearing her seat belt, and had hoped that she would go through the windscreen as a result of the crash. The victim told him to pack his things and get out. He packed his belongings and put them in her shed before he called someone to collect him. 29. She stayed inside the house and told the offender through the locked patio door that she was going to see her mother. He then started headbutting the patio window. He also made threats to her and damaged a CCTV system that she had installed in her back garden by cutting the wires. That act of vandalism was charged as Count 8 in the indictment, criminal damage. The cost of the repairs came to about £400. 30. His victim telephoned the police and they arrived a short time later and arrested him. As he was being led away he shouted "I love you, Charlotte". The police took a number of witness statements from her; and she asked them to reopen the investigation into the incident on 11 December with the air pistol. 31. All of the violence and threats directed by the offender towards the victim, to the extent that they did not feature in the other counts in the indictment, were charged as Count 9, harassment. 32. The police interviewed the offender on 28 December 2016. He was asked some more questions about his connection with the Vauxhall Astra. In the time since his previous interview his fingerprints had been found on the false licence plate. He said he could not account for that. He denied stealing the car but accepted handling it, believing it to be stolen. 33. He also admitted sending text messages to the victim in an effort to persuade her to drop the charges relating to what happened on 11 December. However, he denied making any threats to her, threatening to burn down her house, harassing her or going to her home on 18 December. He said he went to his own home to find that his front door was smashed. He then went to a friend's house. When confronted with CCTV images from the victim's home showing his arrival on 18 December at 6.23 in the morning, he changed his account and admitted he had gone to see her. 34. As to the Nissan Juke car, he said he bought this in good faith. He did not know it was stolen. He said that on 27 December the victim had been driving the car when it crashed, not him. He did not threaten her later that day. He accepted that he pulled out the wiring for the CCTV system; but that was the only offence to which he admitted. 35. The offender has seven criminal convictions from four previous court appearances. On 6 April 2009 when he was 18 years old he was sentenced to 34 months detention for two offences of robbery and two offences of having a knife in a public place. On 17 May 2016 he was sentenced to a community order with a curfew requirement for an offence of attempted non-dwelling house burglary. That was the last matter on his record before these offences. 36. There was a pre-sentence report dated 29 June 2017. In his interview with the author the offender sought to minimise his involvement in the offences. In some instances he blamed the victim. He denied deliberately shooting her. He said she grabbed the air pistol during an argument and it went off accidentally. He agreed he had tried to get her to withdraw her complaint. He said she was the one who owned the stolen car. She was driving it and she was the one who crashed it. He pleaded guilty to dangerous driving because he loved her and did not want to put her through the ordeal of a trial. 37. The author of the report gave her opinion that the offender "has little insight into the risk he presents and the physical and psychological harm he is causing to others". He had issues with power and control, and an inability to control his jealousy. He was subject to a police notice not to contact the victim at the time he committed the later offences involving her. 38. There were a number of victim personal statements. She said that she was terrified of the offender because of his unpredictable nature. She described his behaviour towards her as controlling and coercive. She suffered from anxiety and this affected her sleep. She felt safer knowing that he was in prison. She wanted to move on with her life without him in it. 39. At the sentencing hearing the judge considered that there was "an air of artificiality" about the inclusion of Count 2 in the indictment because the offender used the air pistol to cause actual bodily harm to the victim which was the offending in Count 1. He would pass a sentence "for actually firing the air pistol and causing a rather nasty bruise". In his view the assault was the shooting "and therefore the count of possessing an imitation firearm does not really add anything very much to that". 40. Turning to the Sentencing Council's Definitive Guidelines on Assault the judge decided that it was a category 1 case with greater harm and higher culpability on account of the use of an air pistol to cause injuries. That gave a starting point of 18 months' imprisonment with a range of 1 to 3 years. On account of the offender's antecedent history and the use of a weapon, he was minded to move up from that starting point but in the end he chose not to do so for reasons of totality. 41. The judge gave the offender credit of one third for his plea of guilty to Count 1, the assault, and so reduced the sentence to 12 months' imprisonment with an identical concurrent term on Count 2. They were ordered to run consecutively to the sentence of 3 months' imprisonment imposed for the offence of handling stolen goods charged on indictment T20160441. 42. As to Count 3, perverting the course of justice, the judge observed that this was a serious offence in itself. The starting point for such an offence was 4 months' imprisonment. The offender was entitled to credit of 10 per cent which brought that sentence down to 3 months to be served consecutively to the other sentences. By this stage of the sentencing exercise the total sentence was 18 months' imprisonment. 43. In respect of Count 5, dangerous driving, the offence was committed when the offender was on bail for the earlier offences. He intended to terrify the victim and succeeded. In the judge's view this was "a particularly serious offence of dangerous driving". The damage caused was significant too. The sentence after trial would have been 12 months' imprisonment. Affording the offender credit of 10 per cent for his plea of guilty the sentence on that count was 10 months' imprisonment to be served consecutively to the other sentences. At that stage of the sentencing exercise the total sentence was 28 months' imprisonment. 44. Finally, on Count 8, criminal damage, and Count 9, harassment, the judge took them together. The starting point for the criminal damage was 3 months' imprisonment. With credit for the plea of guilty that came down to 2 months. The starting point for the harassment was 6 months' imprisonment. With credit for the guilty plea, and bearing in mind totality, that came down to 4 months' imprisonment. Those two sentences were ordered to run concurrently to one another but consecutively to the other sentences, making a final total sentence of 32 months' imprisonment. 45. For the Attorney General, Mr Jarvis acknowledges that this was not a straightforward sentencing exercise. Nevertheless, he submits that an overall sentence of 32 months for this sequence of offending, even giving such credit as the offender was entitled to, was unduly lenient. 46. For the offender, Mr Christie reminded the court that this was a sentence passed by an experienced judge who had considered the guidelines and who had given appropriate credit. He accepted that the sentence viewed overall was lenient but submitted that it was not unduly so. 47. We have considered the submissions. The most serious offending in this deplorable history of domestic violence and abuse was represented by Counts 2 and 1, Count 2, possession of an imitation firearm with intent to cause fear of violence and the discharge of that imitation firearm causing the actual bodily harm charged as Count 1. The maximum sentence for the firearms offence is a term of 10 years and the proper approach to sentencing for crimes involving firearms and imitation firearms is set out in the well-known passage of the judgment of this court in Avis [1998] 1 Cr. App. R. 420, to which we come shortly. At page 427A Lord Bingham CJ observed that section 16 A of the Firearms Act 1968 was introduced by amendment "primarily to deter intimidatory use of an imitation firearm". The section itself refers to possession with intent to cause a person to believe that unlawful violence will be used. 48. At page 424B to E the court in Avis set out the four questions, the answers to which, would inform the proper approach to sentence in such cases. "(1 ) What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use. (2) What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be. (3) With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the more serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence. (4) What is the defendant's record? The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearm offences or crimes of violence." 49. Here there was a real weapon, an air pistol, which the offender had no good reason to have. He had it in his possession with the intent of causing the victim to believe he would use it to commit violence on her. It was loaded and he deliberately discharged it at her causing her actual bodily harm. As the judge said in his sentencing remarks at page 16B: "The fact is that you shot a woman with an air pistol in the course of a dispute and a pursuit of her in the house. That is a serious matter." 50. The judge gave full credit for the pleas to these charges and rightly took into account totality, but even making these allowances, a sentence of 12 months for the offending on Counts 1 and 2 did not reflect the seriousness of the crimes committed against the victim in her own home on that occasion, as well as the violence which proceeded and followed the shooting. 51. We should add that we also see considerable force in the Attorney General's criticism of two of the other sentences. First, the sentence of perverting the course of public justice, (Count 3), a term of 4 months' imprisonment consecutive. The crime resulted in the withdrawal of a true complaint by the victim about the crimes committed against her. Second, the sentence for dangerous driving, Count 5, a term of 10 months' imprisonment consecutive in circumstances where he deliberately drove dangerously with the intention of hurting the victim in a crash in which she was in fact injured. But for the considerations of totality, the offender would have been sentenced to more severe sentences for these offences. 52. In summary, while on bail the offender had submitted the victim to sustained domestic violence involving intimidating her, threatening her, assaulting her, shooting her, putting pressure on her to withdraw her lawful complaint and thereby perverting the course of justice, deliberately hurting her in an act of dangerous driving and damaging her property. We grant leave. 53. The sentence could have been imposed in various different ways to reflect the overall criminality. In our view the starting point on Count 2 should have been in excess of 4 and half years, and with credit for his plea a sentence of 4 years. We substitute for the sentence of 12 months on Count 2 a sentence of 4 years. The other sentences will remain unaffected. The resulting overall sentence will be a term of 5 years and 8 months. 54. In the light of our review of this sentence, and taking into account the terms of section 35 A and section 35 B of the Road Traffic Offenders Act 1988 as amended, we vary the period of disqualification and substitute a period of 50 months of which the discretionary period is 24 months. To that extent, the sentences are varied. The other sentences will remain unaffected.

2017_11_14-4103.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2464/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2464

af6a224e292c68e7dc0a1b176f87d0073c6a53f1e53300a92bb92b87c9f658ca

[2009] EWCA Crim 2233

EWCA_Crim_2233

crown_court

Neutral Citation Number: [2009] EWCA Crim 2233 Case No. 2009/01024/A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday 5 October 2009 B e f o r e: LORD JUSTICE RIX MR JUSTICE McCOMBE and MR JUSTICE BURNETT __________________ R E G I N A - v - JOHN ANTHONY HODSON __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400

Neutral Citation Number: [2009] EWCA Crim 2233 Case No. 2009/01024/A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday 5 October 2009 B e f o r e: LORD JUSTICE RIX MR JUSTICE McCOMBE and MR JUSTICE BURNETT __________________ R E G I N A - v - JOHN ANTHONY HODSON __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Non-Counsel Application ____________________ J U D G M E N T Monday 5 October 2009 LORD JUSTICE RIX: I will ask Mr Justice Burnett to give the judgment of the court. MR JUSTICE BURNETT: 1. On 19 January 2009, at the Crown Court at Liverpool, before the Recorder of Liverpool (His Honour Judge Globe QC) and a jury, the applicant was convicted of murder and was sentenced to life imprisonment. The period of 32 years (less the 187 days spent in custody on remand) was specified as the minimum term under section 269(2) of the Criminal Justice Act 2003 . He renews his application for leave to appeal against sentence and a representation order after refusal by the single judge. 2. The Recorder of Liverpool had tried the case. He concluded that a 30 year minimum term was the correct starting point for the purposes of the Criminal Justice Act. He set out in detailed sentencing remarks the factors that he took into account in deciding the minimum term and in support of his conclusion that it should be 32 years. In his written advice counsel submits that, because the judge was not satisfied that the applicant intended to kill his victim and because the murder was not premeditated, the minimum term should have been less. 3. In refusing leave the single judge made the following observations: "The minimum term imposed was not manifestly excessive. The starting point of 30 years was clearly correct. The judge identified further aggravating features in that this was a targeted intrusion into the home of a man whom you knew was very vulnerable; your victim was tortured before you murdered him; and you set fire to his house after inflicting a terrible assault upon him. The judge properly cautioned himself to be alive to the overlap between the starting point and the aggravating features he identified. He was entitled to increase the minimum term to the extent he did. This was a dreadful killing, fully deserving the sentence you received." We agree with those observations. We will outline the facts of the case and the sentencing remarks which in our judgment fully support those conclusions. 4. The 64 year old deceased, Mr Gard, was a man with learning difficulties. He was considered to be particularly vulnerable following the death of his wife in 2006. Since that time a number of people with dishonest motives, alcoholics and drug addicts, had targeted him and visited him at home. Mr Gard's friends and neighbours were concerned for his welfare and contacted the police on a number of occasions. They believed that a number of people were exploiting his vulnerability. 5. In December 2007, the applicant and two others invited themselves into Mr Gard's home. They drank his beer and smoked his cigarettes. Whilst Mr Gard was showing them photographs of his wife, the applicant and the other man went upstairs and stole his Post Office card and his wife's engagement and wedding rings, which they later pawned. Before leaving the house, they violently assaulted Mr Gard, cut his telephone line and threatened to kill him if he went to the police. 6. When Mr Gard was later told by his brother not to let such people into his house in the future, he told him that he was afraid of them and felt they might kill him and set his house on fire if he did not let them in. 7. At about 4am on 13 March 2008, the emergency services were called to a fire at Mr Gard's home. It was later established that there were three separate seats of fire. Mr Gard was found in the bedroom dying from head injuries as the fire was being extinguished. A post-mortem examination found that he had died of head injuries probably from a stamping-type assault, and blows with a fist or a weapon. His face had been smashed in and there was massive blood loss. There was a total of 30 external injuries to his head and face, three of which were non-life-threatening cuts to his neck with a sharp object. There were too many fractures to his face and head to be counted. Additionally, there were twelve fractured ribs. 8. The applicant's fingerprints were found at the scene. In the early hours of the morning on 15 March 2008 he was arrested. Mr Gard's blood was found on his clothing. The applicant declined to comment in interview. 9. The Recorder noted that this was a murder committed for gain in the course of a dwelling-house robbery or burglary. The applicant had broken in and been very violent towards the deceased in circumstances where he had previously been violent towards him when stealing from his property. The appropriate starting point was 30 years. The aggravating features were that Mr Gard was a vulnerable man about whom those close to him were worried that he was being taken advantage of and exploited. After the December incident Mr Gard had been left anxious, confused, upset, very vulnerable and fearful of the return of the applicant and others. The applicant was well aware of that and had deliberately targeted and entered his home in full knowledge of that vulnerability. The matter was further aggravated by the physical suffering Mr Gard must have endured during the course of what happened in the house. Entry had been gained at about 2am and there had been noises consistent with the applicant still being there an hour and three-quarters later. Cuts on Mr Gard's neck showed that he had been tortured, no doubt to find out where he kept his valuable possessions. The full extent of his injuries was evidence of a concerted and determined effort to cause extremely serious harm or to kill. The pathological evidence established that he had remained alive for an hour or two after the beating, although he was probably unconscious. The matter was further aggravated by separate fires being started in different rooms to destroy aspects of the evidence. The Recorder considered whether the applicant intended to cause serious bodily harm rather than to kill. There were so many facial injuries that they could not be counted. The forensic evidence was consistent with the applicant kicking or stamping on Mr Gard as he lay bleeding on the ground. The judge concluded that at the time the applicant was being violent, he either had an intent to kill or if he did not he should have appreciated from his actions that death was a virtual certainty. Thus, concluded the Recorder, there was little mitigation if his intention fell short of a specific intent to kill. The Recorder noted that the applicant was not suffering from any mental illness, although he was of low intelligence. Nonetheless, he knew the difference between right and wrong. He had previously served custodial sentences. The Recorder took account of the relevant guideline cases which are referred to in counsel's advice. 10. In our judgment the approach of the Recorder to this sentencing exercise was meticulous. Having conducted the trial, and so in a position to know the detail of what had occurred, he directed himself to the correct legal principles and carefully weighed all the factors that informed the question of the length of the minimum term. He explained his approach to the question of intent and also fully covered the factual ground encompassed in the suggestion that this murder was not premeditated. The violence inflicted on Mr Gard extended over a long period and could not be described as spontaneous. We are unable to see any error in the Recorder's approach, nor to accept that the minimum term can be criticised. For these reasons this renewed application is refused. _________________________________

2009_10_05-2090.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2233/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2233

1172e25af8b74dd5019810c239e4bb94d6f2ed192a9941ff65996067eac970a9

[2009] EWCA Crim 276

EWCA_Crim_276

crown_court

Neutral Citation Number: [2009] EWCA Crim 276 Case No: 200706590/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 28th January 2009 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE BEAN HIS HONOUR JUDGE PAGET QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ABBAS HUSSAIN KHANANI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Li

Neutral Citation Number: [2009] EWCA Crim 276 Case No: 200706590/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 28th January 2009 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE BEAN HIS HONOUR JUDGE PAGET QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ABBAS HUSSAIN KHANANI - - - - - - - - - - - - - - - - - - - - - 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 Csoka appeared on behalf of the Appellant Mr A Bird appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: On 23rd November 2007 at Kingston-upon-Thames Crown Court before Her Honour Judge Matthews QC, Abbas Hussain Khanani and his son, Ameer Khanani, were each convicted of entering into a money laundering arrangement, contrary to section 328 of the Proceeds of Crime Act 2002 . Each was given leave to appeal against conviction by the single judge on limited grounds. Mr Khanani (Junior) has not pursued his appeal and we are therefore concerned only with the appeal of Mr Khanani (Senior). That appeal has proceeded on a single issue but to see how the issue arises it is necessary to give some more general account of the prosecution's case. 2. In a nutshell, the prosecution case was that the appellant and his son were responsible for the United Kingdom operation of a Hawala banking network and that they utilised that arrangement to facilitate the acquisition of criminal funds on behalf of the appellant's principal in Pakistan. There is nothing unlawful or irregular in itself about a Hawala banking system. The judge and jury were assisted by admissions made by both parties about the nature of such a system. We quote from the admissions: "Hawala is a method by which funds can be transferred between people or companies, often across international boundaries. A particular Hawala system will generally be built upon links based upon family, tribe or ethnicity. Transfers of Hawala funds are facilitated through an informal system operated by active Hawalader Brokers, who execute swaps of value or transfers between themselves to settle debts, thus reducing the amount of administrative records and avoiding local controls. The system is built both upon trust and on a history of success. In 2005 the Court of Appeal in Hussain and Ali [2005] EWCA Crim 87 21 & 22 paragraphs described the detail of the process as follows: '21. Hawala banking is an arrangement by which individuals (or intermediaries who have collected money from individuals) deposit money, usually in the form of modest amounts of cash, with a Hawalader in, for example, the UK to be remitted to beneficiaries abroad, commonly in the country from which the remitters' family originate, for example Pakistan. The UK Hawalader will have a Hawala contact in Pakistan who will pay a sum in rupees, at a rate of exchange which may have been agreed with the remitter in advance. The payment will commonly be made more quickly, more cheaply and with less formality than any corresponding service that might be available through the medium of the commercial banks. There is commonly a family relationship between the UK Hawalader and his contact in Pakistan which enables the transaction to be completed with a greater reliance on trust than is necessary in other commercial financial dealings. 22. For ordinary Hawala there must be records to show the identities of the individuals from whom the money had originally been collected in the UK and of those to whom it was ultimately to be paid in Pakistan.' It is not inconsistent with the Hawala process that a Hawaladar or his agent in the UK should collect a stock of cash from different customers and use it to compete entirely separate transactions on behalf of a Pakistani Hawaladar. Hawala banking represents (for the customer) an alternative to the use of the conventional banking system, but a Hawala banker in the UK is subject to exactly the same legal obligations as a conventional banker." 3. The case against the appellant was that very large sums of cash were collected, generally by the appellant's son in an unorthodox way and for which the appellant and his son did not keep proper records. 4. During the weeks leading up to the search of the appellant's premises there were surveillance activities, as a result of which the appellant's son could be seen going about by car and collecting what the prosecution said were transfers of cash in the street or outside an underground station, in peculiar circumstances, that is to say, that the transfers were carried out swiftly and without the monies being counted or a receipt given. 5. On 31st August 2004 customs officers searched the home address from which this business was conducted. The appellant himself was at this stage in Pakistan having flown there a few days earlier. Cash books and ledgers were found. The records were mainly in the appellant's handwriting. 6. The records, which did not go back before 2004, had some striking features about them. The true names of many depositors were not recorded. The amounts recorded as received were in many cases shown as 1 per cent of the true amount which could be deduced from other documents. There was, for instance, an entry recording £1049.20 but which from other evidence could be shown to relate to a receipt of £104,920. On the day before the police search, officers had observed a Dutch national, named Floor, enter the United Kingdom from Amsterdam. He flew into Heathrow and checked into a hotel. He checked out of the hotel on the following morning and took a taxi to Leyton Underground station. There he met the appellant's son, who was in a Fiat car. Floor put a brown holdall on the back seat of the car. At that point both men were arrested. The holdall contained £140,000 in bank notes. Floor was granted bail but later absconded. Although the appellant himself was out of the country, the prosecution relied on this incident not only against the appellant's son but also more generally as showing the nature of the business at that time. If the £140,000 was honest money, there were much simpler ways for it to have been moved than by Floor flying to England, taking a taxi to East London and handing it over in a holdall to the appellant's son outside an Underground station. 7. As an indication of the scale of the appellant's activities, over £2 million in cash was received in a 2-month period from the beginning of July to the end of August 2004. The money received by the appellant was not banked but kept in cash at his home. At the time of the police search the cash found there amounted to over £90,000. 8. The prosecution's case was that these features taken together provided ample material from which a jury might properly infer that the appellant was providing a service to criminals in possession of large sums of cash who wanted it processed in a way which obscured their identity and left no documentary trail that would lead back to them. 9. The sole issue pursued on this appeal concerns the dates within which the offence charged under section 328 was alleged to have been committed. Whereas in many cases juries are told that precise dates in an indictment are immaterial, that was not the case here. For the appellant to be guilty as charged, the offence must have been committed not earlier than the indictment period, because this was the effect of the statutory instrument bringing the relevant section into force. If the conduct which constituted the offence had begun prior to the indictment period, it would not have been criminal and therefore prosecution for it would contravene the principle against imposing retrospective criminal liability. 10. The offence is defined as follows: "A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person." The way in which the prosecution presented its case was that the relevant "other person" for the purposes of this case was the appellant's principal in Karachi. But the prosecution did not have to prove any mens rea on the part of that other person. Under section 328 one may have an arrangement between an agent, A, and principal, P, which in the mind of P is at all times lawful, but which at some stage is used by A to facilitate the acquisition on behalf of P of property which is criminal and is known or suspected by A to be criminal. If so, at that point A becomes guilty of an offence under the section, albeit that P is not guilty. It all seems rather technical but this flows from the various ingredients of the offence. 11. The judge in due course gave the jury written directions in which she correctly directed the jury that an offence would be committed under the section if and when three separate elements all requiring to be proved were established. Those three elements were these: first, there must be money which the jury was sure represented the proceeds of crime, directly or indirectly and in whole or in part. Secondly, the defendant must enter into or become concerned in an arrangement in relation to that money, namely one which he knew or suspected would facilitate its acquisition, use, control or retention. Thirdly, the jury had to be satisfied that the defendant knew or suspected that the money represented the proceeds of crime. No offence would be committed unless and until all three ingredients were established. One could therefore have an arrangement which was initially intended to be lawful, and which remained lawful in the mind of P, but under which A committed an offence contrary to section 328 by utilising that arrangement for the acquisition on P's behalf of property which was criminal and he knew to be criminal. At that stage he would then become concerned in an arrangement prohibited by the section. 12. The appellant gave evidence to the effect that in 2001 to 2002 he entered into an arrangement with a respected businessman who carried out a money exchange business in Karachi, and that thereafter the money collecting that he did in the United Kingdom was done pursuant to that arrangement and for the benefit of that principal. The appellant denied any suspicion at any stage that the monies which he was instrumental in receiving and passing on had a criminal source. The jury plainly disbelieved him on that. He also maintained that the nature of his arrangement with his Pakistani principal was the same throughout the material period. The judge summarising his evidence on this point said as follows: "He told you that once the system had started it didn't operate differently between 2002 and 2004, though, he said, by 2004 the operation was less active and the amounts that were going through were smaller. He said, 'From the time I started this arrangement with Altaf Khananai I never had any suspicions. He had been introduced by someone I knew. He was a credible businessman. The company of Khanani and Khalia enjoyed an excellent reputation and I thought the cash came from the money service bureaux and I had no reason to doubt this. I never considered or wondered if it came from crime.'" 13. After the appellant had given his evidence Mr Csoka, who appeared for the appellant below as he has done before this court, submitted that the judge ought to withdraw the case from the jury because on that evidence the arrangement, whatever it had been, had begun before the indictment period, which itself was from 23rd February 2003 to 1st September 2004. Therefore, if the prosecution were right in their arguments about the nature of the arrangement, the offence under section 328 predated the indictment period and predated the time when such an arrangement became criminal. The judge rejected that submission. Mr Csoka has renewed it before this court. 14. In our judgment the argument contains a fallacy. As already stressed, the offence could only be committed when the prosecution were able to show that all the necessary ingredients of that offence were established. They therefore had to show that there was an arrangement under which the transfer of criminal property was being facilitated by the defendant. Their case for showing that criminal property was being processed during the indictment period was based on the evidence to which we have referred, that is to say, that there was ledger evidence showing receipts of substantial sums of cash and there was surveillance evidence showing the unusual way in which some of those cash transfers were being made. That was the basis for the prosecution establishing the first ingredient, namely that criminal property was being processed. 15. During the period before the indictment there was no such evidence. None was available to the prosecution because when they conducted their search, the records which they found did not go back to any such earlier period. It may well be that the arrangement made between the appellant and his Pakistani principal ante dated the indictment period, but it by no means follows that criminal property was being processed under it. As to that, there simply was no evidence other than the broad assertion by the appellant that the nature of the arrangement was the same. But this was not, we stress, a case in which the appellant himself was putting forward material to show the receipt of criminal property at an earlier date. Quite the reverse. Moreover, even if the jury were to disbelieve the appellant's evidence about being in honest receipt of substantial sums, prior to the indictment date, that did not mean that there was evidence that he had received criminal sums prior to the indictment date. As Scrutton LJ we believe once commented, if a man says that he did not go to Paris and is disbelieved, that is no evidence that he went to Paris. 16. Mr Csoka went further. He submitted that in this case it was positively incumbent on the prosecution to prove that the appellant had not been guilty of criminal conduct prior to the indictment period. He accepted in his submissions that there was no evidence upon which the jury could have made a positive decision when the appellant first received criminal property. All that the prosecution evidence went to show was that he had received criminal property during the indictment period. He submitted that in such circumstances it was incumbent on the prosecution positively to prove that he had not received criminal property prior to that date. No authority was cited to support that proposition, which we consider to be wrong in principle and would place upon the prosecution a burden which would in practical terms be impossible to discharge. 17. Finally, Mr Csoka criticised the way in which the judge summed-up this issue to the jury. In our judgment, there is no substance in that criticism and accordingly this appeal is dismissed. 18. MR BIRD: My Lords know that there is an earlier judgment of this court on the interlocutory appeal. There was a ruling given then in relation to publicity. Now there is going to be no more trial for the Khananis, it seems that the ruling on publicity can be lifted. 19. LORD JUSTICE TOULSON: Have you anything to say about that, Mr Csoka? 20. MR CSOKA: No, my Lord. 21. LORD JUSTICE TOULSON: We agree.

2009_01_28-1798.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/276/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/276

8be1ef9053c80c0a4a7459465dfc7a797a1fa75f3a854e68a29bf3752fc64059

[2017] EWCA Crim 592

EWCA_Crim_592

crown_court

Neutral Citation Number: [2017] EWCA Crim 592 Case No: 201700812 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 12 April 2017 B e f o r e : LORD JUSTICE TREACY MR JUSTICE GREEN MR JUSTICE PICKEN - - - - - - - - - - - - - - - - R E G I N A v ALI KHALID - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 02

Neutral Citation Number: [2017] EWCA Crim 592 Case No: 201700812 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 12 April 2017 B e f o r e : LORD JUSTICE TREACY MR JUSTICE GREEN MR JUSTICE PICKEN - - - - - - - - - - - - - - - - R E G I N A v ALI KHALID - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Ms R Hussain appeared on behalf of the Appellant Mr M Bisgrove appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T (Approved) MR JUSTICE GREEN : 1. The Registrar Criminal Appeals has referred the present application for leave to appeal against sentence and for bail to the full court. We grant leave. 2. On 28 December, at about 12.20 am, two police officers in a marked vehicle in Bradford spotted a vehicle carrying two passengers driving at speed. When the driver saw the police he appeared to swerve towards them. Officers, concerned that the car might collide with theirs, put on their blue lights. The appellant then drove off at speed. Shortly thereafter, the driver went over a speed bump, which lifted the vehicle off the ground. The roads were icy, although the street was lit by street lighting. There were cars parked on either side of the road. The driver lost control of the vehicle, it went through a fence and hit a parked Audi. The driver and the two passengers got out of the car. The passengers remained nearby. The driver ran away but was shortly thereafter detained and arrested. The car in question belonged to the driver's sister. He did not have permission to drive it nor was he insured. 3. The appellant was aged 20 at the time. He pleaded guilty to dangerous driving and not having insurance before the Magistrates' Court, who sent him to the Crown Court for sentencing. 4. In his sentencing remarks, the judge started by referring to the well-known concern that there was in Bradford too much of "this sort of behaviour: young men in powerful cars racing around the city centres, often creating damage, injury, even worse than that". The judge stated that the appellant must have been "living on the planet Zog" if he had not heard about the concern of the court in relation to this sort of driving. The judge rejected the appellant's explanation that this was a short journey connected with his work. The judge stated that the explanation was inconsistent and did not "make any sort of sense geographically or indeed in terms of time". The judge therefore concluded that this was simply another case of a young man getting into a powerful car with two people on board, racing around and creating a real danger to the people of Bradford. The judge made clear that, given the concerns which had been expressed by the court over the previous 12 months, in this sort of case offenders would "have to go immediately into custody". 5. In these circumstances, the judge imposed a sentence of 6 months' detention in a Young Offender Institution. This implies a starting point of 9 months before plea. The judge also imposed a 15 month disqualification period taking account of the fact that 3 months of the period would be spent in custody. The judge concluded his remarks with the following observation: "And I hope that sooner rather than later this message that I have been speaking about, which this Court has been promoting for the last twelve months or more, finally reaches the ears of people like you and this sort of driving comes to an end in this city." 6. It was argued before us today by Ms Hussain in her concise and helpful submissions that the sentence was manifestly excessive, as an immediate custodial sentence was not justified in all the circumstances. Probation had recommended a non-custodial disposition. The prosecution had opened the case and observed that this was not in the same category as other dangerous driving cases that routinely came before the courts. 7. Ms Hussain has pointed out that the chase was of no more than 0.2 miles, that no evidence of speed was placed before the court, no details of the chase were placed before the court, there was no evidence of road users having to take evasive action and there was no evidence of the extent of the damage caused to the parked Audi that was hit by the vehicle. It is argued that the justification for the immediate custodial sentence was the perceived view of the judge that there was an issue in the local area surrounding young men driving powerful cars in a dangerous manner. In the circumstances, a custodial sentence was unjustified given the defendant's age, his previous good character, his guilty plea, the surrounding circumstances and the recommendation contained within the pre-sentence report. But even if the custody threshold was passed, it did not need to be immediate. It is pointed out that there was no evidence served or called to support the judge's justification. Further, there was no prior indication from the judge that this was to be treated as an aggravating factor. Had such an indication been given, the defence would have wished to examine the evidential basis and to have made submissions about it. 8. On behalf of the Crown, in equally helpful written submissions, it is stated that the Crown neither opposes nor concedes the appeal. Helpfully, the Crown have indicated various factors which it is said amount to relevant aggravating features. These include that the appellant was not permitted to drive the vehicle, that he had no insurance, that the vehicle was driven at speed, that there was a police chase, that the appellant was carrying passengers, that the driving was late at night when the road was icy and therefore dangerous, that there was a collision, that there was damage to another vehicle, and that the appellant fled on foot. 9. The Crown also recognises that there were significant mitigating features: that the appellant was of good character, that the chase was brief, that the appellant returned to the vehicle and admitted his role, that he pleaded guilty at an early stage and that he was young and had personal mitigation. 10. With those facts and matters in mind, we turn to our conclusions. We are concerned that the judge appears to have permitted his concerns about prevalence to affect his sentencing options. He expressly ruled out consideration of a suspended sentence because of his perceived concern as to the prevalence of this type of offending in Bradford and the need to send a message that such behaviour would be met with immediate custody. From the overall tenor of the sentencing remarks, we are also concerned that the judge might well have chosen his starting point of 9 months before plea upon the basis of his very evident determination to stamp out this sort of dangerous driving in the city. 11. It is now well established that courts should be hesitant before increasing a sentence because of prevalence. In the recent judgment in the Court of Appeal in R v Bondzie [2016] EWCA Crim 552 , in relation to the sentencing of a defendant for drugs supply said to be in the context of a serious drug problem in the area in which the offending took place, the court stated that in accordance with relevant sentencing guidelines on seriousness courts were required to receive evidence of the prevalence of the offence prior to increasing a sentence upon that basis. A key factor was the harm caused by the offence in the locality in question. It was not open to a judge to increase a sentence for prevalence or in response to the judge's personal view that there was "too much of this sort of thing going on in this area". 12. On the contrary, there had to be evidence provided to the court by a responsible body or senior police officer, the evidence had to be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations could be made in connection with that material and that, even if such material was provided, the judge would only be entitled to treat prevalence as an aggravating factor if the judge was satisfied that the level of harm caused in the particular locality was significantly higher than that caused elsewhere. The judge would need to be satisfied that the circumstances could be described as exceptional and that it was just and proportionate to increase the sentence for such factors. 13. Where the Crown intended to invite a court to consider the issue of prevalence, it was required to say so at a hearing and to identify the material upon which it relied, referring the court to the guidelines. Where a judge of his or her own motion contemplated prevalence as a relevant consideration, that should be identified as a matter to be addressed in submissions to the court and any sentence then imposed should identify whether prevalence had been a factor in the decision and reasons should be provided therefore. 14. In the present case, the judge did not follow the procedure which is required to be followed pursuant to the guidelines and authority. It thus appears to us that the judge was in error in the approach that he adopted. When we stand back and consider the tenor of the sentencing remarks, it does appear that the judge was intent on imposing a severe and deterrent sentence upon the basis of prevalence. 15. There are several factors arising out of the present case which might have been considered as important mitigation and which could readily have led to a significantly lower sentence or might have led the judge at least to consider the possibility of suspension. These have been identified by both the appellant and by the Crown in their submissions. 16. We are therefore left with a real concern that an unfair approach has been taken and that the judge's concerns about prevalence did in actual fact lead to an increase in the sentence. If the judge had wished to take account of prevalence then he was entitled to do so but he was bound to follow the appropriate procedure which would then, from the prospective of fairness, have enabled the appellant's legal advisers to make appropriate submission. 17. In these circumstances, we consider that we must allow the appeal. We consider, along with the judge, that the custody threshold has been passed and that this was quite serious offending. Taking of all of the relevant factors into consideration, we quash the sentence of 6 months' detention. We substitute in its place a sentence of 4 months' detention. This means that the appellant will be released very shortly. 18. There is one final matter we should address. It appears that the judge did not order that the appellant be disqualified until he had passed an extended driving test as required by the provisions of section 36 of the Road Traffic Offenders Act 1988 . Such an order is recorded as having been made on the Crown Court record but there is no indication of this in the judge's sentencing remarks. The Registrar has made inquiries and the Crown Court has confirmed that no such order was made in the presence of the appellant. For the avoidance of any doubt, therefore, the disqualification of the appellant from driving will continue until he has passed such an extended driving test. We vary the period of disqualification so that it is now 14 months in duration. 19. To this extent, the appeal is therefore allowed.

2017_04_12-3972.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/592/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/592

0cf50d80d971ca644e3800937357143a03117378d47878e1ccbc8925f976724b

[2014] EWCA Crim 2269

EWCA_Crim_2269

crown_court

Nos: 2013/1614/C5 & 2013/1616/C5 Neutral Citation Number: [2014] EWCA Crim 2269 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 8 October 2014 B e f o r e : LORD JUSTICE FULFORD MRS JUSTICE ANDREWS DBE SIR RODERICK EVANS - - - - - - - - - - - - - - - - - - - R E G I N A v SURAN UDDIN HAMZA ALI - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Compan

Nos: 2013/1614/C5 & 2013/1616/C5 Neutral Citation Number: [2014] EWCA Crim 2269 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 8 October 2014 B e f o r e : LORD JUSTICE FULFORD MRS JUSTICE ANDREWS DBE SIR RODERICK EVANS - - - - - - - - - - - - - - - - - - - R E G I N A v SURAN UDDIN HAMZA ALI - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - The case of Uddin was heard as a non‑counsel application Mr L Cox appeared on behalf of Ali - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE FULFORD: No matter relating to the victim of the offences that are the subject of this renewed application shall be included in any publication during her lifetime if it is likely to lead members of the public to identify her as the victim of these offences. 2. Introduction 3. On 27th February 2013, at the Crown Court at Norwich, before His Honour Judge Coleman and a jury, the applicants were convicted of a variety of offences. On 26th April 2013 they were sentenced by the learned judge as follows. On count 1, conspiracy to traffic within the United Kingdom for sexual exploitation, contrary to section 1(1) of the Criminal Law Act 1977 and section 58 of the Sexual Offences Act 2003 , Uddin received a sentence of four years' imprisonment and Ali five years' imprisonment. Uddin was sentenced to a concurrent term of two years' imprisonment on count 2, an offence of supplying a controlled drug of class B (cannabis) to another. For two offences of rape (counts 5 and 6), Uddin received concurrent sentences of 15 years' imprisonment. Ali on count 10, sexual assault, received a concurrent sentence of six months' imprisonment. It follows that Uddin's total sentence was 15 years' imprisonment and Ali's was five years' imprisonment. 4. They had two co‑accused. Mohammed Sheikh was convicted on counts 1 and 2 (set out above) and on count 13, an offence of causing a child to engage in sexual activity. He was sentenced to a total of eight years’, which included a concurrent sentence of four years' imprisonment on count 1. Abdul Hammed was acquitted by the jury on all the counts that he faced. 5. Both Ali and Uddin renew their applications for leave to appeal their convictions after refusal by the single judge. Ali applies additionally for leave to appeal his sentence and for a three day extension of time. Although Ali's solicitors have not provided a justification for the late filing of his renewed application, we are prepared to address the issue on its merits. 6. The issue 7. The sole substantive issue raised on this renewed application to appeal these convictions is whether the contradictions in the evidence of the victim and the extent to which it was at odds with other evidence in the case meant that the judge was obliged to withdraw the case from the jury. Uddin has drafted additional grounds of appeal without the assistance of counsel, which are without any merit. 8. The applicants and the victim 9. Uddin was 28 years of age at the time of these offences and lived in London. He was known by the nickname "Jay". He had previous convictions for the possession of drugs. Ali was aged 38 at the time. He was known as "Bruno" and he had previous cautions for possessing drugs. The victim, L, was aged 13 at the time of the offences. She lived with her father, with whom she had a poor relationship. She spent her weekends with an aunt who lived in Walthamstow in a flat that was directly above where Ali lived with his father. She travelled to that address by bus every Friday night and she then returned to her father's home on Sunday evenings. The victim, it was accepted, looked older than her years. 10. She was assessed before the trial by a forensic psychologist who concluded that she was suffering from psychological stress which had precipitated a kind of dissociative state in which she oscillated between indifference and hyperarousal. She exhibited clear signs of aggression and recklessness. She also had a complete understanding of the difference between telling the truth and telling lies. She did, however, demonstrate a willingness to lie in order to achieve short‑term objectives, although she was not very good at lying, with the result that her accounts often contained inconsistencies. She appeared to have a significant impairment of intelligence and social functioning, although she did not have what has been described as a global learning difficulty. 11. The facts 12. On 3rd July 2012 Sheikh signed a tenancy agreement for a property at 20 Chevalier Street, Ipswich. The victim spent the weekend of 6th to 8th July 2012 at her aunt's home. On Sunday 8th July she communicated by Facebook and telephone with a friend, E, and indicated to her aunt that she was going to meet her. She left the flat that evening, but neither met up with E as arranged nor arrived home at her father's house. At around midnight the police were informed that she was missing. 13. On 10th July 2012 a fraud investigator attended 20 Chevalier Street. He spoke with Ali. The victim was at the address and the investigator spoke with her briefly and formed the impression that she was unaware of where she was. Later that day, officers attended at the address after receiving information that a girl was possibly being held against her will for the purposes of sexual exploitation. Sheikh, Uddin and Ali were at the address when the police attended. Sheikh informed the officers that the victim was upstairs. The victim told the police that she had slept with one of the men, but that it had been consensual. She said that she was 18 years old, that she was at the premises of her own free will, the men were her friends and she was fine. In consequence, the police left the address without removing her. 14. It was not until 12th July 2012 that the police made the connection between the girl with whom they had spoken and the missing victim. Officers attended again at the address that afternoon and found only Ali, although the victim's handbag was at the property. At 10.30 that evening, the police spotted the victim in the street with Ali, who was arrested. Sheikh and Uddin were also arrested that evening. Sheikh was in possession of cannabis. The address was searched and four packages containing cannabis and a number of used and unused condoms were recovered. 15. Given the application as regards conviction is based mainly on the alleged unreliability of the evidence given by the victim, it is necessary to consider her account and any other relevant evidence, and especially the main matters that are said to contradict her testimony. 16. The victim gave her first explanation as to what had occurred in the early hours of the morning of 13th July 2012 to a DC Whelan‑Smith at Ipswich Police Station, during which she alleged that she had been transported by the defendants from London to Ipswich where she was raped by Uddin and Hammed. The following day she was medically examined by Dr Adeyemo and no notable injuries were found. She reported that she had drunk vodka and smoked cannabis whilst at the relevant address, but she tested negative for both alcohol and drugs. Semen with a DNA profile matching that of Sheikh was identified on multiple swabs taken from both the victim's vaginal and anal regions. The victim's DNA was found in Uddin's underpants, together with saliva that may or may not have been the source of the DNA. 17. An ABE interview was conducted with the victim on the same day. In the second part of that interview, she said that Ali had approached her whilst she was near a bus stop and asked her if she was all right. She said she was lost and he offered to help her find her way, but she declined. He asked her if she would go to a hotel with him but she said no. He said that he would call his friend and they would take her somewhere nice. They waited for at least an hour during which time Ali asked her if she had ever had sex. He also smoked some cannabis. Eventually a van arrived containing the other three defendants. Although the victim was scared, they eventually persuaded her to get into the van. Uddin then drove the vehicle to the address in Ipswich although Ali travelled separately by train. These events were reflected in count 1 on the indictment. 18. In the third part of the ABE interview, the victim said that she slept on a sofa at the house and awoke to find all the defendants sitting around where she was sleeping and they were staring at her. They gave her drugs. She was eventually left alone with Ali. However, after a further period of sleep, she awoke to find Uddin sitting next to her. She asked him to guess her age and having jokingly said 15, he said he thought she was 17 or 18. He asked her to have sex with him. She initially refused, but after he gave her some alcohol she agreed. They went to a room where he told her to take off her clothes. He ordered her to open her legs but she refused. He forced his legs between hers. He took his penis out of his jeans and he had vaginal sex with her (count 5). She told him it was really painful, and that she had never had sex before. She had seen a knife on the table and thought she had to comply because otherwise there would be consequences. 19. Later in the interview, she said that Ali had been present in the room whilst Uddin had sex with her. He was laughing and said that he was going to record what was happening. Ali kept touching and rubbing her leg whilst Uddin was on top of her (count 10). 20. L said that Uddin raped her a second time on the Monday. He asked her to put his penis into her mouth and she said she did not know how to do it. He said he would teach her and asked her to give him a "blow job". She said no because she had never done it before. However, he pulled his penis out of his trousers, told her to open her mouth and placed it in it (count 6). She found it disgusting and wanted to vomit. Ali and Hammed then came into the room. 21. Whilst these events were occurring, Sheikh was in London. She said that he had treated her well and was angry with the others when they had sex with her. She said that she slept in a bed with Sheikh and nothing had happened between them. Uddin, she said, gave her cannabis and he indicated that it would make her feel "horny" (count 2). As a result, things became confused. 22. On 14th July 2012 the victim attended a video identification parade during which she identified all four defendants. She said that Uddin was the person who had asked her to give him a blow job, as well as raping her vaginally and anally. She identified Ali as the person who had watched and touched her leg whilst she had sex with another man. 23. In a further interview in September 2012, she said that Ali had provided her with cannabis at the bus stop in London. She indicated she had got into the van because she was scared the men might kill her. She also claimed for the first time that she had been persuaded by Sheikh to sell drugs for him in Ipswich. She suggested she had been scared the defendants might shoot her. Sheikh had told her that he liked little girls. She maintained that she had compiled a diary whilst in the van and at the house. She already knew Ali because he was her aunt's neighbour. Friends of Sheikh had threatened her on Facebook. She indicated she was aware that Sheikh and Uddin carried knives. Hammed had taken her to another address where he had made her drink a drugged cup of tea. She concluded this interview by stating that all four men had raped her. 24. The victim provided the police with a document which she claimed was a handwritten duplicate of the diary she had kept whilst in Ipswich. In an entry dated 8th July, she stated: i. "I want to run away but I can't ... he forced me to have sex with him and his friend gave me drugs ... I really am scared ... they kept pulling my hair." 25. An entry dated 9th July included the following text: i. " ... I nicely asked if I could watch tv and Bruno said 'give up your pooms' [pussy] and I give up the TV ... Jay came along and slapped my face hard. And they both were laughing at me and constantly pulling my hair ... I was scared... They dragged me to the living room and said police are on the search for drugs if they come say we don't smoke, lie about your name and age. So when they came I did so ... " 26. A further entry dated 10th July referred to Ali phoning a man who the victim spoke to and he said he wanted to "fuck her hard". Hammed then forced her to have sex. The entry concluded: i. "I have to go ... they are calling me. If I don't [go] they going to kill me." 27. In September the victim visited her aunt unannounced and told her that all four men in Ipswich had forced her to have sex with them. 28. Several months after the incident, the victim handed a document entitled "Things that happened" to a member of staff at the residential home at which she was living. It purported to detail various events that had occurred at 20 Chevalier Street. 29. As we have already observed, it is alleged on behalf of the applicants that there were a number of highly significant inconsistencies both within the victim's evidence and between the victim's evidence and other material in the case. It is unnecessary to set these out in their entirety. Put broadly, it is suggested her account changed and she contradicted herself notably on certain issues. It is said her allegations varied, sometimes markedly, between what she set out in her diary and the "things that happened" document, in what she said to DC Whelan‑Smith, during the ABE interviews and as to what she said to Dr Adeyemo. Of particular note she gave a divergent account as to the things that were said when she first got into the van and the circumstances in which this occurred. She said to DC Whelan‑Smith that Ali had driven the van, an event which on the cell site evidence seemed improbable. As to the sexual assaults on her, including the occasions when she was raped, she was inconsistent as to the order of events and who participated in or was present during these offences. As set out above, in her later account she claimed that all four defendants had raped her ‑ an allegation she had not made when she was initially interviewed. Her suggestion that Ali was present when she woke up on Tuesday 10th July was inconsistent with the cell site evidence. She said that both Uddin and Ali gave her cannabis to smoke on the Wednesday and the Monday respectively. She may well have lied when she told staff at her children's home in October 2012 that she had received threatening text messages from men connected to the defendants, given that in her final interview with the police in January 2013, she confessed that she had sent these to herself but was unable to explain why she had done so. She informed Dr Adeyemo that no weapons had been used. In her third ABE interview she stated that Uddin had a knife in his room when he had sex with her. In her September interviews she stated that Sheikh and Uddin carried knives. No weapons were found at the house or in the defendants' possession. 30. There were problems with the copy of the diary. For instance, L recorded the journey to Ipswich and the subsequent assaults under an entry dated 8th July 2012, whereas it was agreed that she was still in London on that date and did not travel to Ipswich until 9th July. Despite telling the police that the original diary was lost, in evidence the victim repeatedly said that it was in her room at the care home. Staff were instructed to search for it but failed to find it. The original diary was never seen by either the defence or the prosecution. 31. In a diary entry of 9th July, L set out that she had locked herself in the bathroom but the defendants broke in and dragged her to the living room and told her to lie to the police which, when they came, she did. However, the police did not visit until 10th July, a day after the entry was apparently written. 32. In the diary the victim wrote that she had been made to wear clothes that "a slag would wear" and then pictures were taken. All the defendants' mobile telephones were interrogated and the only photograph found of the victim was one in which she was fully clothed and wearing items of clothing that her father identified as belonging to her. 33. There were difficulties with her evidence as regards the police visit on Tuesday 10th July. In her third ABE interview she said that the police visited the house twice on that date. On the first occasion she gave a false name. On the second occasion Uddin and Ali tried to hide and officers spoke to Sheikh and then to Uddin who said that he would return to London if the victim was pregnant. In the "things that happened" document, she wrote that she was not allowed to talk to her mum, dad or the police. However, the evidence of the officers was that the defendants were mostly talkative and relaxed, there was no conversation with Uddin about the victim being pregnant, that the officers spoke to the victim in the absence of the defendants and formed the view that she was not vulnerable, that she was there of her own free will and did not want to leave. This, it is observed, was on the day on which the appellant said she had been raped by Uddin. 34. As to the police visit on Thursday 12th July, in her account to DC Whelan‑Smith, L said that Ali told her to hide in a cupboard, which she did. The police found her and she eventually provided her real name and the police said that they were not looking for her. In her third ABE interview she said that when the police arrived she was in the toilet vomiting, Hammed was hiding and Ali spoke to the police. She disagreed with the suggestion that the police had searched the house. The evidence of DS Brown was that he searched everywhere in the house that was large enough to hide someone, including the bathroom. He did not find the victim. 35. In her third ABE interview, the victim said that whilst she was in Ipswich she told her friend E exactly what happened and provided her with Sheikh's mobile telephone number that she was using. In her fourth ABE interview, she said that she met up with E to give her a CD or a DVD after she left her aunt's house on 8th July. In her fifth interview, she said that she had told E everything. She had known her for five years and sometimes stayed at her home. She had told E about the threats that she had received on Facebook, which E was investigating for her. The police located E who agreed she had arranged to meet the victim on 8th July, but L had failed to appear and as a result she had telephoned L's aunt. E indicated that she had been contacted by the victim on Facebook, but had never met up with her. She said the victim had not contacted her whilst she had been in Ipswich and that she had not at any stage been trying to help the victim investigate threats that had been made to her. 36. No DNA belonging to Uddin was found on the victim despite her claims on a number of occasions that he had not used a condom. The expert witness indicated that these findings were inconsistent with the suggestion that unprotected sex had occurred. Contrary to her claims of having smoked cannabis, a toxicology report revealed that no drugs were in her system and officers who saw her on 10th and 12th July formed the view that she was not under the influence of drugs or alcohol. In her July ABE interview, she stated that she had asked to be given alcohol. In her September ABE interviews she indicated that she had been forced to drink alcohol and that she had no choice in the matter. 37. In her first ABE interview she said that her sister was a prostitute, she had stayed with her in France and she had been raped whilst in France. The victim's father and aunt gave evidence that she had no family in France and she had only ever been to that country once to visit Disneyland in Paris. 38. In her first ABE interview, L said that she had a 19‑year‑old boyfriend named M with whom she had sex and who lived in her aunt's block of flats. The police investigated this allegation and found no one of that name living in the relevant flat. The only person of that name from the general area denied knowing the victim and in any event he lived elsewhere at the time that L suggested they had had sexual relations. 39. The care home manager, Helen Davies, gave evidence that the victim had a history of making false allegations of racial discrimination against members of staff which made them wary of her. Davies gave examples of what was said to be her dishonest behaviour and she indicated that L had a tendency to approach older men who were strangers to her. She was described as being cold, calculating and manipulative. 40. On one evening when the victim was in Norwich in order to give evidence at trial, she telephoned the police asking for help, stating that she had come to Norwich to meet a man called Nick who had failed to appear. At the police station she said that she had had sex with a 37‑year‑old man and the police instigated what are known as the rape investigation procedures. She told another officer that she had met a Somali man through Facebook and he had instructed her to go to Norwich in order to meet a man for the purposes of having sex in exchange for money. She told a yet further officer that she had had vaginal and oral sex with a 37‑year‑old man in Norwich before claiming that she had had sexual relations with between five or six men. She refused to undergo a medical examination. In a diary in her possession, which she claimed belonged to her sister, she made references to meeting a man for sex. 41. It was agreed by all parties in this case that the accounts provided to the police of travelling to Norwich in order to have sex with men were demonstrably untrue and that instead she had simply absconded from her hotel room where she was being supervised during the trial by social workers. 42. The victim refused to sit in court to watch four of the five ABE interviews. She declined to answer many of the questions put to her. She expressed her disinterest in the proceedings. She refused to refer to her interview transcripts. She claimed she could not read, and yet she produced a number of notes during the trial. She chewed gum and blew bubbles whilst giving evidence. She wrote graffiti on a screen. The judge described her as difficult, unhelpful, truculent, insolent and unresponsive. She claimed to lack a memory of some of the relevant events. 43. The judge gave the jury directions as to the inconsistencies in the victim's accounts. He directed them as to her evidence generally at some length. There is no complaint made as part of these applications about the accuracy or the adequacy of these directions. That is unsurprising in our view. The summing‑up was extremely well constructed. 44. There was evidence relating to what both applicants said to a serving prisoner at HMP Norwich, Norman Straight, and the confessions they allegedly made to him. We return to that issue briefly later in this judgment. 45. The defence case 46. The defence case on count 1 was that no sexual offence occurred and that the victim was not trafficked. Uddin's case on count 2 was that he did not supply her with cannabis. The case on counts 5, 6 and 10 was that the applicants denied engaging in any sexual activity with the victim. It was suggested that the victim's account in interview was fabricated and the assertions of sexual misbehaviour were outright lies. It was argued that she was a witness whose evidence was incapable of belief. Neither of the applicants nor either of the other two defendants gave evidence. 47. The appeal 48. The submission by both applicants is that the evidence of the victim was not fit to be left to the jury. Her account of what had happened to her altered to a considerable extent between the various occasions when she described these events and parts of her account were markedly inconsistent with other prosecution evidence, with the consequence that her testimony overall was wholly lacking in credibility. Therefore it is submitted that the convictions are unsafe because of what is said to be the inherent unreliability of the victim's account and given what are described as the many inconsistencies, lies and false allegations that she made, such that the judge ought to have withdrawn the case from the jury. 49. Mr Cox who appears on behalf of Ali in support of this renewed application emphasises that L appeared to be wholly unconcerned about telling lies and fabricating evidence in a variety of difference ways. She indicated that she was happy to be with the defendants and their co‑accused and she lied about her age. It is argued that she was inherently unreliable and that she was simply an extraordinary witness. 50. The section 31 proceedings 51. In refusing Uddin leave to appeal against conviction, the single judge gave the following reasons: i. "I have considered the papers in your case and your grounds of appeal. You were convicted at trial of conspiracy to traffick [L], a thirteen year old girl, supplying cannabis to her, and two counts of vaginal and oral rape of her. Your only ground of appeal is that the learned judge was wrong to refuse your application at the end of the prosecution case that there was no case to answer on the basis of the inconsistencies and unreliability in her evidence. In a detailed lengthy and careful ruling the learned judge rejected that application and similar applications by your co‑defendant. In my judgment he was right to do so. There was evidence that you and your co‑defendants had taken her from London to Ipswich, and that you gave her cannabis and her evidence that you raped her was supported by scientific evidence and by the evidence of Norman Straight the prisoner responsible for your induction at Norwich prison with whom you joked about having sex including anal sex with the complainant. In other words despite the difficulties with her evidence, it was not so tenuous or unreliable that no jury properly directed could properly convict. The learned judge correctly concluded that the assessment of the credibility of [L] was a matter for the jury. In the circumstances, it is not arguable that your conviction was unsafe." 52. In refusing Ali leave to appeal conviction, the single judge gave the following similar reasons: i. "I have considered the papers in your case and your grounds of appeal. ii. You were convicted at trial of conspiracy to traffick [L], a thirteen year old girl and of one count of sexual assault. Your grounds of appeal against conviction seek to criticise the learned judge's ruling refusing your application that there was no case to answer at the end of the prosecution case, on the basis of inconsistencies and unreliability in the complainant's evidence. In a detailed lengthy and careful ruling the learned judge rejected your application and that of your co‑defendants. In my judgment he was right to do so. There was evidence that you were the link between the complainant and the defendants having first met her and there was evidence that you made arrangements for the use of the van, as the judge said, that you were the architect. Furthermore, in cross‑examination the complainant mentioned that you had touched her legs, the basis of the charge of sexual assault. In addition there was the evidence of Norman Straight the prisoner who conducted the induction of you and your co‑defendants at Norwich prison who concluded from his discussions with the three of you that you had used the complainant like a piece of meat passing her about between you. In other words, despite the difficulties with her evidence, it was not so tenuous or unreliable that no jury properly directed could properly convict. The learned judge correctly concluded that the assessment of the credibility of the complainant was a matter for the jury. In the circumstances, it is not arguable that your conviction was unsafe." 53. Discussion 54. The victims of offences of this kind are frequently damaged young people. They are nearly always wholly unused to giving evidence in court. They can be difficult, emotional, contradictory, aggressive and on some occasions wholly uncommunicative. Whether in any trial their evidence is so vitiated that it is unsafe to leave the case to the jury will be a matter of careful judicial assessment. However, the courts now have a far greater understanding than hitherto as to the difficulties that exist for vulnerable witnesses and the need for care in assessing whether inconsistent or varying accounts given on different occasions necessarily mean that the underlying allegation is untruthful or unreliable. These are often matters for juries rather than judges to assess because it will be vital for the fact finder to assess the reasons for the changes or the contradictions in the witness's evidence and whether they fatally undermine the prosecution's case as regards the counts on the indictment. 55. In R v H and M [2010] EWCA Crim 1926 , Hughes LJ observed: i. "It is fundamental to the system of jury trial which we operate in this country that it is the jury and not the judge which makes up its mind which evidence it accepts and which it does not. The judge has vital duties relating to the management of the case, the admissibility of evidence and rulings upon questions of law where they arise. But when it comes to the assessment of evidence the judge's role is confined, and it should be confined, to deciding, if there is dispute about it, whether the evidence if taken at its highest is evidence upon which a jury could properly convict ‑ see R v Galbraith [1981] 73 Cr.App.R 124. If that question arises at the trial for decision, the judge's ruling on it is a matter of law and can accordingly be challenged on appeal, if it is contended that he was wrong. If that happens, the role of this court is as confined as that of the judge. Our task is to say whether or not the judge was wrong on the grounds that the evidence, taken at its highest , was such that no jury could properly be sure that the offence had been committed." 56. Those sentiments apply in this case. As the single judge pointed out, for each of the counts on which the applicants were convicted the victim had given definite evidence against him from which, in essence, she did not resile, albeit her account - in a more general sense - as to how the offences were committed varied. Whether or not that evidence was so unreliable that it could not properly lead to a guilty verdict because of the inconsistencies in, and the difficulties that otherwise existed with, her account was a question for the jury and not the judge to resolve. 57. Finally on this issue we note that Mr Cox referred to certain decisions of this court in which it had been alleged by the appellant’s counsel that the victim's account was inherently unreliable (see R v CG [2005] EWCA Crim. 242 and R v S [2003] EWCA Crim. 696). However, those cases essentially turned on the evidence given in the respective trials and no points of general principle emerge from them that assist in the assessment of whether this victim's evidence should have been left for the jury's consideration. Cases will fall either side of the line in this context depending on their facts, and in our judgment there was a clear basis on which the jury could properly convict these applicants. 58. Uddin, in grounds of his own composition, seeks additionally to challenge his convictions on the basis that a prisoner by the name of Frost had not heard Uddin confess to the crimes of which he was convicted and he seeks to introduce evidence to this effect. This is essentially irrelevant. The issue in this context was whether Uddin had confessed to Norman Straight, as we have described shortly above. 59. Frost has also alleged that Straight bragged to a number of other prisoners that he might get his sentence reduced. However, this allegation is advanced in the most general of terms, without any indication as to when these statements were allegedly made, who else was present at the time and why none of those who it is suggested overheard what was said informed Uddin at the time as to what had occurred. Furthermore, it was made clear to the jury that Straight may benefit from cooperating with the authorities in this prosecution. Indeed, as the judge observed in the summing up, it was put to Straight whilst he was giving evidence that he was prepared to say anything "to get out of Norwich [prison]". It was suggested that he had received favourable treatment as a reward for giving evidence, namely he had been moved to HMP Bure where he was in a single cell and was therefore more comfortable. 60. The criteria for admitting fresh evidence in those circumstances is not met and most particularly this material would not afford any ground for allowing the proposed appeal. 61. These renewed applications for leave to appeal the applicants' convictions are therefore refused. 62. Sentence 63. It is argued by Ali that the sentence was wrong in principle due to the disparity with the sentence of four years imposed on his co‑accused on count 1. The distinction that the judge drew, namely that Ali had met the victim first and had sufficient time to ascertain her age, was, it is suggested, inappropriate given that any implied knowledge of the victim's age was acquired very shortly before the arrival of his co‑accused and in any event it had been accepted by the Crown that L had the appearance of someone who was older than 13. 64. In passing sentence, the learned judge observed that Ali's family and the victim's aunt were known to each other and that the victim had seen him in the weeks leading up to these offences. It was clear Ali knew more about her than he was prepared to admit, both to her on the night and during the investigation into these offences and the trial. He spoke to her on the street for some time on the night and he realised she was on her own. Indeed in all probability he realised then that she was vulnerable. He clearly had one thing on his mind and it was not to give her assistance. As the judge noted, if he had had any decency or compassion he would have saved her from the exploitation and abuse that occurred. Instead, he made sexual comments about her and invited her to a hotel. 65. The judge acknowledged that there was a confusion as to what happened next because of a lack of clarity as to the movements of the van. However, it was clear that Ali was the reason for Uddin and Sheikh turning the van around to return to London. Ali called Sheikh to tell him he had "some pussy". The victim was persuaded to get into the van by way of promises from all of them. Uddin and Sheikh thereafter drove the victim to Ipswich, where Ali joined them the following day. L was taken to a house in a town she had never previously visited, in the company of men who were strangers in the middle of the night. They were all intent on sexually exploiting her for their own ends rather than providing her with a safe haven. Although direct force may not have been used to keep the victim at the house, she was unable to leave because she did not have her telephone and she did not know where she was. She was obliged and possibly prevailed upon to tell lies to the police. The address where she was sexually exploited had been recently acquired by Sheikh, seemingly for the purposes of dealing in drugs. In conclusion, the judge decided that Ali was the reason the van returned to London. He was the man who targeted the victim and he was in a very real sense the architect of her misfortune. He could have prevented what followed but he chose not to do so. 66. The judge acknowledged that Ali was to be treated as a man of previous good character and his actions were opportunistic. The judge decided that because the conspiracy was embarked upon as a result of his misconduct, a higher sentence would be imposed in his case. 67. In refusing leave to appeal the single judge observed: i. "In relation to the sentence of 5 years imprisonment concurrent on the two counts of which you were convicted, the suggestion of disparity with the sentences imposed on your co‑defendants on the trafficking offence (4 years) is misconceived. The learned judge was entitled to conclude that on the evidence it was you who first met her on the street alone and vulnerable in London and who decided to exploit her sexually. You told your co‑defendant Sheikh that you had found him 'some pussy'. The learned judge was entitled to conclude that your offending was marginally more serious than that of your co‑defendants." 68. With those observations, notwithstanding Mr Cox's powerful submissions, we wholly agree. There was a clear sustainable basis for passing a longer sentence on Ali on count 4, which the judge was at pains to explain. This renewed application is therefore refused. 69. The judge stated that both applicants would be liable for a victim surcharge. The Criminal Justice Act 2003 (Surcharge) (No2) Order 2007, SI 2007 No 1079, applies to offences committed between 1st April 2007 and 30th September 2012. A victim surcharge in those circumstances can only be made if the sentence imposed includes a fine (article 3(2)). In this case the offences were committed between 1st and 13th July 2012 and no fine was imposed. The order in relation to the surcharge for both applicants is quashed and we grant leave in both of their cases for that limited purpose only.

2014_10_08-3485.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/2269/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/2269

16d2c6061dfed6d65ac8fcf6c4de298c80b29bb7685a74f927a704458b5ab6fc

[2019] EWCA Crim 875

EWCA_Crim_875

crown_court

The order referred to in paragraph 2 of this judgment has ceased to have effect, and this anonymised judgment may now be reported. The reporting restrictions referred to in paragraph 3 remain in force. Neutral Citation Number: [2019] EWCA Crim 875 Case No: 201702557C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK Her Honour Judge Kamill T2016 7866 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/05/2019 Before: LORD JUSTICE HOLROYDE MR JUSTICE

The order referred to in paragraph 2 of this judgment has ceased to have effect, and this anonymised judgment may now be reported. The reporting restrictions referred to in paragraph 3 remain in force. Neutral Citation Number: [2019] EWCA Crim 875 Case No: 201702557C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK Her Honour Judge Kamill T2016 7866 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/05/2019 Before: LORD JUSTICE HOLROYDE MR JUSTICE JAY and HIS HONOUR JUDGE PICTON - - - - - - - - - - - - - - - - - - - - - Between: A.B. Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Trevor Siddle for the Appellant Andrew Collings for the Respondent Hearing dates: 9th May 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Holroyde: 1. On 5 th May 2017, in the Crown Court at Snaresbrook, the appellant, to whom we shall refer as AB, was convicted of 9 sexual offences against his sister and his wife, to whom we shall refer as BM and CB respectively. He was sentenced to a total of 14 years’ imprisonment. He appealed against his convictions by leave of the single judge. At the conclusion of the hearing we allowed his appeal, quashed the convictions and ordered a retrial. We indicated that our reasons would be given in writing at a later date. These are our reasons. 2. Having heard submissions, we were satisfied that it was necessary to postpone any reporting of the appeal hearing until after the conclusion of the retrial. That departure from the important principle of open justice was necessary because there is a substantial risk of prejudice to the administration of justice if this appeal is reported before the retrial, in particular because the appeal has involved consideration of evidence which may not be before the jury at the retrial. Postponement of reporting will avoid that risk, and no less restrictive means of avoiding it were suggested to the court. An order has therefore been made, pursuant to section 4(2) of the Contempt of Court Act 1981, postponing the report of the appeal hearing until after the conclusion of the retrial. 3. In addition, BM, CB and a third complainant KM are entitled to the protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during their respective lifetimes, no matter may be published which is likely to lead members of the public to identify either of them as a victim of any of the offences. 4. The appellant is now 34 years old. He had no previous convictions. BM complained of sexual offences during the period 1999-2004, when she was aged between 10 and 15 and the appellant was aged between 15 and 20. She also complained of a further offence, committed in 2006 or 2007 when she was aged 17 and he was 22. CB complained of sexual abuse, including rape and digital penetration, throughout her relationship with the appellant, which began in 2004 and ended when the appellant left the matrimonial home in 2013. 5. CB first reported her allegations to the police on 23 rd April 2015. In the course of giving her account of the sexual abuse which she had suffered, CB alleged that the appellant had also raped BM. The police accordingly contacted BM. CB’s younger sister KM was present when CB was making her complaint to the police and she too complained that she had been the victim of a sexual offence. 6. At trial, the prosecution was represented by Mr Collings, the appellant by Mr Siddle. We were assisted by the submissions of both counsel on this appeal. 7. In very brief summary, BM’s evidence at trial was that as a child, she had been the victim of repeated sexual offences at the family home, the appellant’s actions ranging from masturbation to full vaginal intercourse, and a later offence of rape. Her allegations were the subject of six counts in the indictment. Count 1 alleged sexual intercourse with a girl aged under 13, contrary to section 5 of the Sexual Offences Act 1956. Counts 2 and 3 alleged indecent assault on a female, contrary to section 14 of the 1956 Act, when BM was aged 10. Count 4 was a multiple incident count alleging at least 5 offences of rape, contrary to section 1 of the 1956 Act, when BM was aged under 16. Count 5 was similarly a multiple incident count, alleging at least 5 offences of indecent assault on a female, contrary to section 14 of the 1956 Act, when BM was aged under 16. Count 6 alleged rape contrary to section 1 of the Sexual Offences Act 2003 when BM was aged 17. The jury convicted the appellant of all of these offences. 8. CB, who is a few months younger than the appellant, began a relationship with him in 2004. They married in November 2007. CB’s evidence was that sexual abuse started soon after their relationship began, and continued throughout the marriage. She said that there had been consensual sexual activity between them throughout their relationship, but she alleged that there had been occasions when the appellant had raped her vaginally, anally and orally, and had digitally penetrated her vagina without her consent, including on occasions when she was asleep, or pretending to be asleep. These allegations were reflected in six counts of the indictment. The appellant was convicted on 2 counts of rape contrary to section 1 of the Sexual Offences Act 2003: count 7, which alleged anal rape in August 2004, and count 12, which alleged vaginal rape in 2012. In respect of the digital penetration of CB’s vagina, he was convicted of count 10, a multiple incident count alleging assault by penetration contrary to section 2 of the 2003 Act on at least 5 occasions between 2007 and 2013. He was acquitted of other allegations of rape. 9. KM gave evidence about an offence of sexual assault (count 13) alleged to have been committed when she was aged 15 and was staying overnight at the home of the appellant and her sister. The appellant was acquitted of that offence. 10. When interviewed by the police, and in his evidence to the jury, the appellant stated that the allegations against him were all untrue. He said that all sexual activity between him and CB had been consensual, and that he had never been involved in any form of sexual activity with either BM or KM. He alleged that each of the complainants was maliciously giving false evidence against him, and that they had colluded to do so. 11. The issues in the case were therefore stark. It was common ground between the prosecution and defence that, if the evidence of a complainant about a particular charge was true, the appellant was in law guilty of that offence. The jury accordingly had to decide whether they were sure that the alleged conduct had occurred and, in CB’s case, that it had occurred when she was not consenting to the relevant sexual activity and the appellant did not reasonably believe that she was consenting. 12. Although none of the offences came to the attention of the police until April 2015, both BM and CB had made earlier complaints to others, on which the prosecution relied as evidence of consistency. BM gave evidence that she had told her husband in about 2008 that she had been sexually assaulted by the appellant, though it was not until April 2015, shortly before she contacted the police, that she told him she had also been raped. Her husband also gave evidence about this. In about 2010, BM told CB, and CB’s sister, that she had been sexually assaulted as a child by the appellant. CB gave evidence that she had made complaints of rape and sexual assault to a therapist, Ms Ferrary, who had held counselling sessions with CB on 44 occasions between April 2013 and November 2014. 13. Ms Ferrary gave evidence to the effect that, in the course of the counselling sessions, CB had described incidents of rape and sexual assault by the appellant. Ms Ferrary had made notes of the counselling sessions in two forms: brief bullet point notes, and more detailed notes written after the sessions. Her normal practice was that after her sessions with a particular client had ended she would shred the detailed notes but retain the bullet point notes for about a year in case the client returned to her. She told the jury that after the counselling sessions with CB had finished, and at a time before CB had made her allegations to the police, she had shredded her own detailed notes, but retained some bullet point notes. After matters had been reported to the police, CB contacted Ms Ferrary to tell her that the police would be coming to interview her. Ms Ferrary asked CB to remind her of the matters they had discussed during the counselling sessions. CB did so, in an exchange of emails which was before the jury, and Ms Ferrary created fresh detailed notes, which she supplied to the police. 14. Shortly before Ms Ferrary was to give her evidence, she informed the police that she had obtained from her supervisor a copy of the original more detailed notes. She supplied these to the police. 15. Ms Ferrary produced six exhibits, which were referred to at trial but not provided to the jury: CF1, her original bullet point notes; CF2, her fresh detailed notes made before the police came to see her, but after she had exchanged emails with CB; CF3, an assessment report which she had prepared in connection with CB undertaking a course at university; CF4, copies of text messages between Ms Ferrary and CB; CF5, a copy of the email exchange between Ms Ferrary and CB, which was the source of the fresh detailed notes, CF2; and CF6, a copy of the original detailed notes obtained from Ms Ferrary’s supervisor. 16. There were two features of these documents which she readily accepted when crossexamined. First, her bullet point notes, CF1, contained no reference to CB having reported sexual abuse by the appellant. Secondly, the fresh detailed notes, CF2, which did record such abuse, had been compiled in the light of the email correspondence with CB, though Ms Ferrary said that she also remembered the complaints of sexual abuse having been made by CB. Mr Siddle wished, in cross examination, to go into detail on these points. As we understand it, he particularly wished to take Ms Ferrary through her bullet point notes in order to establish the detail of what was in them, with a view to emphasising what was not in them. One of the matters which had been mentioned to Ms Ferrary, and about which the jury were aware because it had been mentioned in CB’s evidence in chief, was that CB complained of having been raped some years earlier by a man otherwise unconnected with this case. Mr Siddle wished to be able to emphasise the point that the topics covered in the bullet points included that sexual allegation, and yet there was no reference to any sexual allegation against the appellant. 17. The learned judge was unhappy about the course which the cross examination of Ms Ferrary was taking or seemed likely to take. In the absence of the jury, she enquired of Mr Siddle what was the point of his cross examination. She was anxious that it should be made clear to the witness if it was being alleged that she was manufacturing false evidence. As to the absence of any reference to any sexual abuse by the appellant, the judge wished Mr Siddle to make his point succinctly, telling Mr Siddle that he should “put it in a sentence”. Mr Siddle indicated that he wished to go into much more detail than that. The judge was opposed to that course, and warned Mr Siddle that if he crossexamined at excessive length, she would stop him. However, it is apparent from the transcript which we have seen that Mr Siddle did in fact continue thereafter to crossexamine Ms Ferrary at some length, and was not interrupted by the judge. 18. The appellant gave evidence in his own defence, denying all the charges. He called two witnesses, who knew him through his work as a publican and spoke highly of his character. 19. It seems that in his closing speech, Mr Siddle referred to Ms Ferrary’s evidence in terms which accused her of fabricating her notes in order to lend weight to CB’s allegations. The judge at an early stage her summing up pointed out that that was not simply an allegation of unprofessional conduct on the part of Ms Ferrary, but a grave allegation of perverting the course of justice. 20. It appears that, before summing up, the judge had discussed with counsel what matters would be the subject of her directions of law. She had prepared for the jury a document which set out the legal ingredients of the offences charged and the factual questions which the jury would have to ask themselves in order to decide whether a particular offence had been proved. No issue has been raised as to the correctness of that document in relation to the matters which it covered. The judge did not give the jury any other written directions as to the law. 21. The judge gave her oral directions of law at different points in her summing up, which extended over parts of three days. The learned single judge, when granting leave to appeal, commented upon the extraordinary length of the summing up given the nature of the case, and expressed concern as to whether it would have helped the jury. He observed that he could not discern an easily identifiable structure and that some of the directions were not easy to follow without a considerable amount of re-reading. He expressed particular concern about the issue of cross-admissibility, about which there was no single succinct, readily understandable direction. 22. The judge’s direction on the topic of cross-admissibility of evidence as between the three complainants was given at the start of the second day of the summing up. Most unfortunately, the audio recording of that morning did not start until some time after the proceedings had commenced, with the result that there is no recording, and therefore no transcript, of the first part of what the judge said. It has not been possible for this court to establish how much is missing. From what is available, it can be seen that the judge directed the jury that they could and should consider all of the evidence as a whole. If they found the appellant guilty of a particular count, they could use that decision and take it into account when considering the other charges which he faced. The judge immediately followed that direction with a warning that the jury must first be sure that the evidence of one complainant had not been influenced in any way, whether consciously or subconsciously, as a result of hearing about the allegations made by the other complainants. She emphasised that if the jury could not be sure of that, then the evidence of one complainant could not be relevant to the issue of whether another complainant was telling the truth. She summarised the evidence showing contact between BM, CB and KM and noted that by April 2015 they were all in touch. She continued, at page 7A of the transcript: “You may think, therefore, that by the time the police took their statements that each one had been influenced. Was it, though, as has been suggested by [the appellant] and Mr Siddle, deliberately fabricated for you to prove that the defendant is a sex offender, deliberate lies that is?” 23. The judge went on to say, at page 7C of the transcript: “if however you conclude, there has been no contamination, in other words, deliberate lies in this case, as alleged, you can go on to consider the different allegations and any degree of similarity between their allegations that you perceive. If you consider there is a significant degree of similarity between the allegations, that [the appellant] has behaved as a sex offender to them individually, then it is open to you, if you think it right to do so, to consider whether it is no coincidence that two, or indeed three, here, females make similar allegations against the defendant, and if you are sure that it isn’t a coincidence, whether it is more likely that he is guilty of one or more than one of the offences with which he is charged.” 24. Later in her summing up that day, the learned the judge reminded the jury of the evidence of the two character witnesses called by the appellant. She referred to the appellant as a man of good character, used to dealing with the public because of the nature of his work. She summarised the evidence of the two witnesses to the effect that the appellant was a gentle and giving man with a good work ethic who was a very fond father of his children. She went on to say, at page 47G: “Well now, not only is he of good character, which means no criminal convictions, we have those personable qualities and people skills which he has. Now as you know, those are confirmed by people who know him, and indeed, that he’s been a pub manager for so long speaks of his skills quite highly. This case, of course, is about his private life about which those witnesses can’t really tell us much and we know, don’t we, as to his private life, that he certainly won the love of two women in this case, even though he wasn’t a faithful partner to AR nor a faithful husband to CB. That doesn’t affect his ability to tell the truth, that’s for you to decide. The fact that he has got no criminal convictions means that he may be less likely to have committed any crimes. Now, remembering though that these allegations go back some years and it may be that if you accept them, that you will be less likely to accept his evidence on oath. But it is for you to judge his character”. 25. At about noon that day the judge indicated that she had completed her review of the evidence and enquired if counsel wished to raise any matter. Mr Siddle indicated that he did, and suggested that the jury might not be sent out until after lunch. The judge declined that suggestion, saying that she was going to give the jury five minutes. The jury left court at 1202, and Mr Siddle made submissions on a number of points. In particular, he submitted that the direction as to the appellant’s good character was wholly inadequate. The judge accepted his submission in part, and when the jury were brought back into court at 1315 she directed them at page 66B in these terms: “I’m sorry, I know I’m keeping you from your lunch, but let’s just deal with this. When I told you about perhaps the most important point made which is quite correct, [the appellant] has no criminal convictions. That leaves you with two things. Firstly, it doesn’t mean he is not guilty of any of these offences, but what it does do is tell you something about him. Firstly, that he’s given evidence. You may think that a man with good character, when he gives evidence, is more likely to tell the truth. Secondly, that he has never done anything like this before, and that you may take that into account now that he’s got to 32 years of age, and it may make you more likely to accept his evidence on oath. As I said to you earlier, it is for you to judge his character. You take those two things into account, firstly that he has no criminal convictions and you should therefore treat him as a man of good character. You also know a bit more about him than that.” 26. The jury retired to consider their verdicts. They were brought back into court at the end of the court day, and gave verdicts finding the appellant guilty on counts 2, 5 and 12 and not guilty on the count relating to KM. The jury were then sent home and the appellant – who until that point had been on bail – was remanded in custody overnight. 27. When the appellant was bought back to court the following morning, he was wearing a prison-issue tracksuit, in contrast to the suit and tie which he had worn throughout the trial up to that point. It seems that no one had foreseen that this would occur, and it transpired that to bring the appellant’s suit from prison would involve a delay of at least half a day. Mr Siddle submitted that the judge should direct the jury that following their guilty verdicts the appellant had been remanded in custody overnight, in accordance with usual practice, that he had not been provided by the prison service with his suit when brought back to court, and that the jury should not hold that against him in any way. Mr Collings objected to such a direction, on the grounds that it might tend to arouse feelings of sympathy amongst the jury which would cloud their proper consideration of their remaining verdicts. In the course of the ensuing discussion, the judge made clear that it would not be right to delay the proceedings by half a day or more. Various possible courses of action were canvassed. In the end, the judge concluded that it was best to say nothing at all. She offered Mr Siddle the opportunity to say something to the jury himself if he wished to, an offer which was declined. The jury then came into court for the brief period necessary whilst the jury bailiffs were resworn, after which the jury retired to continue their deliberations. They later returned their verdicts on the remaining counts. 28. On behalf of the appellant, Mr Siddle advanced five grounds of appeal, one of which developed significantly in the course of the appeal proceedings. The first ground challenges the directions given by the judge as to the appellant’s good character. Relying upon the decision of this court in Hunter [2015] EWCA Crim 631 , [2015] 1 WLR 5367 , Mr Siddle submits that the appellant was entitled to a full good character direction containing both the credibility limb and the propensity limb. He submits that the judge’s first direction said nothing about credibility, was inadequate in relation to propensity and was rendered worthless by the qualifying remark relating to the allegations going back some years. He contends that this first direction was so fundamentally flawed that it could not be cured by any further direction. In any event, he submits, the second direction was also deficient because it still failed to direct the jury that they should take the appellant’s good character into account in his favour when considering his credibility and when considering whether he was likely to have committed the crimes alleged. 29. In response, Mr Collings submits that the second direction was sufficient in the circumstances of this case. 30. The second, and related, ground of appeal complains that the character evidence of the two witnesses called by the appellant was wrongly diluted by the judge’s observations that they could not speak as to what happened in private. Mr Siddle submits that by those observations the judge effectively neutralised the evidence which the witnesses gave in support of the appellant, and she compounded that failing by making an inappropriate reference to marital infidelity. He criticises the judge for engaging in advocacy. He suggests that in almost every case in which a defendant of previous good character is charged with a sexual offence, it would be possible to say that character witnesses could not speak of the defendant’s conduct in private. A defendant should nonetheless be able to rely on evidence attesting to his good character. 31. Mr Collings submits in response that the judge was doing no more than reminding the jury, as she was entitled to do, of concessions made by the two witnesses when they were cross-examined. 32. The third ground of appeal complains that the nature and scope of the direction as to cross-admissibility of evidence between the three complainants was not sufficiently discussed with counsel before the summing up, and was unclear. It is submitted that the judge did not make clear whether she was directing the jury as to cross-admissibility on the grounds of a relevant propensity, or on the basis of the unlikelihood of three complainants each making false allegations, or both. Mr Siddle refers in this regard to the decision of this court in Freeman, Crawford [2008] EWCA Crim 1863 , [2009] 1 WLR 2733 . He suggests that the judge appeared on balance to be giving a direction as to the unlikelihood of coincidence, but submits that such a direction was inappropriate in the circumstances of this case, involving as it did dissimilar allegations, on the one hand of sexual offences against adolescent girls and on the other hand of sexual offences committed in the course of a marriage. Even if it could be said that the sexual nature of all the alleged offences justified a direction of this kind, he submits that its terms were deficient because it did not help the jury to identify the extent of any similarities and did not sufficiently assist the jury with both the possibility of collusion to tell deliberate lies and the possibility of one complainant’s evidence being influenced by her knowledge of what another had said. He further submits the judge in her summing up as a whole did not fairly reflect the evidence bearing on the issue of whether the complainants had colluded to make false allegations. Understandably, Mr Siddle relies on the observations of the single judge when granting leave to appeal, to which we have referred. 33. Mr Collings in response submits that it was for the judge to decide how best to assist the jury on this issue in the light of the evidence given, and that the nature of the direction given was appropriate. Mr Collings himself, in his closing speech, had addressed the jury about the unlikelihood, in the absence of collusion, of the three complainants each making sexual allegations against the appellant. He submits that the judge properly reminded the jury of the evidence bearing on the issue of collusion. 34. In the fourth ground of appeal, Mr Siddle complains that he was wrongly prevented from cross-examining Ms Ferrary, and that the judge’s comments early in her summing up amounted to unfair advocacy in favour of the prosecution’s side. He submits that the jury needed to know precisely what was in the bullet point notes in order to assess the significance of the omission of any reference to sexual allegations against the appellant, and to decide whether that omission cast doubt on the reliability of CB’s allegations at trial. 35. As part of this fourth ground of appeal, Mr Siddle also relied on the fact that it has since trial become known to those representing the appellant that Melissa Chevin, the person referred to throughout Ms Ferrary’s evidence as her supervisor, is in fact Ms Ferrary’s daughter. His initial argument was that if that fact had been known at trial it would have been the subject of further cross-examination which, he suggests, would have called into question Ms Ferrary’s production of the notes CF/6 at such a late stage before trial, and would have been likely to undermine Ms Ferrary’s credibility. He had in any event put to Ms Ferrary, at the conclusion of his cross-examination at trial, the proposition that she had fabricated the notes CF/6 in order to lend weight to CB’s allegations. Ms Ferrary had denied that suggestion, but Mr Siddle submitted that it would have been strengthened if everything which is now known had been known at trial. He submitted moreover that if he had been able to cross-examine about the matters which have only emerged since trial, the judge would not have been critical of him in the way she was in the summing up. 36. Mr Collings’ initial response, in the Respondent’s Notice, was that Mr Siddle had in fact been able to hammer home the point that the bullet point notes CF/1 did not contain any report of sexual offending by the appellant, making any further cross-examination unnecessary. He submitted that the late discovery of the notes CF/6, which supported Ms Ferrary’s evidence that sexual offences had been reported to her even though there was no reference to them in CF/1, weakened the point which Mr Siddle wished to make. 37. When the appeal was first listed before the court, the respondent was able to confirm the mother-daughter relationship between Ms Ferrary and Ms Chevin, and to confirm that the respondent had been unaware of that relationship until it was brought to their attention by the appellant’s advisers. There were however a number of unanswered questions to which it seemed to the court that insufficient attention had been given by the parties, and the hearing was adjourned to enable further enquiries to be carried out and any appropriate application made for leave to call fresh evidence. Consequential issues then arose between the parties, which they were unable to resolve by agreement, and a further directions hearing became necessary. Thus the substantive hearing of this appeal was regrettably delayed for a considerable time. 38. The result of steps taken during the period of adjournment is that the court has now heard, de bene esse , evidence from both Ms Ferrary and Ms Chevin, and has heard submissions as to whether that evidence should be received as fresh evidence. Ms Ferrary has explained why she did not feel it relevant to explain that the person who did indeed act as her supervisor was her daughter. Both witnesses have given an explanation of how an envelope containing the notes CF/6 was left by Ms Ferrary at her daughter’s house, and was mentioned by Ms Chevin when Ms Ferrary had said that she had been unable to find some important documents. 39. The fifth ground of appeal challenges the failure of the judge to give a direction to the jury, in the terms sought by Mr Siddle, as to the appellant’s clothing on the last day of the trial. Mr Siddle points out that throughout the trial the appellant had taken care to be smartly dressed before the jury. The concern which he expressed to the judge was that the jury, having returned some guilty verdicts on the previous afternoon, might regard the appellant’s markedly less smart appearance as an indication that he had previously been putting on something of a show. Mr Siddle accepts that on its own, this would not be a matter which rendered the convictions unsafe; but he relies on it in combination with other grounds of appeal and submits that it is an indication of the approach taken by the judge which was generally unfavourable to the appellant. He submits that in the light of the judge’s refusal to give the sort of direction which he sought, there was no point in himself making any comment to the jury. 40. Mr Collings maintains the stance he took at trial, namely that a direction such as was sought would be inappropriate, and submits that the judge was entitled to conclude that the best course was to say nothing. He underlines the fact that the defence were given the opportunity to say something to the jury but chose not to do so. 41. The submissions of both counsel were advanced on the tacit basis – with which we agree – that all the convictions must stand or fall together. Our conclusions are as follows. We begin by considering grounds 1 and 2 together, as both relate to the previous good character of the appellant. 42. In Hunter , this court reiterated two general rules which were applicable in the circumstances of this case: that a direction as to the relevance of good character to a defendant’s credibility is to be given where a defendant has a good character and has given evidence, and that a direction as to the relevance of good character to the likelihood of the defendant’s having committed the offence charged is to be given where the defendant does have a good character. We accept Mr Siddle’s submission that in this case, a direction containing both limbs was necessary. An appropriate course would have been for the judge to give a direction based on example 2 set out in the Crown Court Compendium at page 11-6, and not to add to it any gloss or qualification. The judge was not of course obliged to adopt precisely the words of that suggested direction, but if she chose not to do so it was incumbent upon her to ensure that she clearly conveyed to the jury the five essential elements of it: namely, (1) that good character is not a defence to a charge, but (2) that the jury should take the appellant’s good character into account in his favour in two ways, those being (3) that good character supports his credibility and should therefore be taken into account when deciding whether to believe his evidence, and (4) that his good character may mean he is less likely to have committed the alleged offence, (5) it being for the jury to decide what weight they give to the good character, taking into account all they have heard about the appellant. 43. We accept Mr Siddle’s submission that the judge’s first direction as to good character, which we have quoted earlier in this judgment, fell well short of meeting that requirement. It failed to convey the essential points, and it was moreover expressed in confusing terms which are very difficult to follow even when reading and re-reading them on the printed page. We shall have more to say later about the fact that the jury were not assisted by written directions on important points of law such as this. The direction was in addition undermined in two ways. First, it was unnecessary and inappropriate for the judge to make the comment she did to the effect that the character witnesses could not speak as to the appellant’s private life. Secondly, it was inappropriate for the judge to add to her direction a reference to the appellant’s infidelity. It was particularly inappropriate when there had been no previous suggestion that issues of infidelity were in any way relevant, and no opportunity for counsel to make submissions if the judge was minded to include such a comment. 44. The judge rightly recognised that there was force in Mr Siddle’s criticism, and accordingly gave the further direction which we have quoted. We understand the judge’s wish not to delay the jury’s retirement by acceding to Mr Siddle’s suggestion of postponing her further direction until after the short adjournment. We nonetheless think it unfortunate that the judge did not at that stage either adopt the example in the Compendium, or spend a little more time drafting, and providing to counsel, a note of what she would say. If (which is far from clear) she had a concern that a direction in conventional terms would be inappropriate, we respectfully suggest there was all the more reason for her to hear submissions from counsel before finalising what would be said to the jury. 45. In the result, the second direction which we have quoted was far from satisfactory. First, the judge did not tell the jury whether this further direction about good character was intended to replace or to supplement that which she had given more than an hour earlier. The jury therefore could not know whether they were to ignore the earlier direction or to try to recall it and consider it in conjunction with the later one. Secondly, the terms in which the further direction was given are again difficult to follow. Thirdly, insofar as it can be said to include the five essential elements to which we have referred, the direction was immediately undermined by the concluding indication that the two things which the jury should take into account were that the appellant had no criminal convictions and that he was therefore to be treated as a man of good character. 46. In a trial in which there was a stark conflict as to whether certain acts had ever been committed, and in which the credibility of the witnesses was therefore a key issue, the appellant’s good character was an important matter in his favour. The judge was required to give a clear direction identifying the two respects in which his good character should be taken into account in his favour. We have concluded that she failed to do so. It may just be possible, by cross-referencing and editing the passages which we have quoted from the transcript, to identify references to each of the five essential elements. We very much doubt, however, whether it was possible for the jury, unassisted by anything in writing, to understand the essential points which they needed to understand. 47. Ground 3 raises a similar question as to whether the jury could have understood, and been assisted by, the direction as to cross-admissibility. In Freeman, Crawford the court stated that evidence in relation to one count of an indictment may be admissible as bad character evidence in relation to another count or counts if it meets any of the criteria in section 101(1) of CJA 2003. If evidence relating to one count tends to rebut an unlikely coincidence that separate and independent complainants have made similar but untrue allegations against the defendant, then the evidence of one complainant in relation to one count may be relevant to the credibility of another complainant’s evidence on another count, which is an important matter in issue pursuant to section 101(1)(d) of the Criminal Justice Act 2003. In this situation, the jury will need to exclude collusion or innocent contamination as an explanation for the similarity of the evidence of the complainants: the more independent the sources of evidence are, the less probable it is that their similar complaints are the product of mere coincidence or malice. 48. Alternatively, the jury may be sure of the guilt of the accused upon one count, and that finding may satisfy them that the accused has a propensity to commit a particular kind of offence, which is again is an important matter in issue pursuant to section 101(1)(d) of the Criminal Justice Act 2003. In this situation if, but only if, the jury are sure that guilt of that offence establishes the accused’s propensity to commit that kind of offence, they may proceed to consider whether the accused’s propensity makes it more likely that he committed an offence of a similar type alleged in another count in the same indictment. 49. The Crown Court Compendium gives guidance as to the directions which must be given in each of those two situations. It observes that a direction based on both coincidence and propensity may in some cases be appropriate, but adds that such a direction “is likely to be complex and, unless great care is taken, confusing.” We agree with that cautionary note. 50. As we have said, the full text of the learned judge’s direction as to cross-admissibility is unfortunately not available to us. It seems, however, that her direction was essentially based on the unlikelihood of coincidence approach, and not on the propensity approach. That was consistent with the approach which the prosecution had taken in the course of the trial. It was therefore necessary to direct the jury that the evidence of one complainant may be relevant to their assessment of allegations made by other complainants, because they might think it unlikely that similar allegations had incorrectly been made by two or three independent persons. It was also necessary to warn the jury that before following such a line of reasoning, they would have to be sure they could exclude any risk that the witnesses had colluded to give false evidence and any risk that the evidence of one complainant may have been contaminated or influenced, even unwittingly, by her knowledge of what another complainant had said. That again was a direction which could have been given in conventional terms, and the judge could have been assisted by the example set out at page 13-5 of the Crown Court Compendium, suitably modified to reflect the evidence in the trial. 51. We do not accept Mr Siddle’s submission that such a direction was inappropriate in the circumstances of this case. There were of course differences between the allegations made by the three complainants. It would, for example, have been obvious to the jury that there were significant differences between a sister alleging that she was sexually abused by her brother as a child, and an adult wife alleging that consensual sexual acts were interspersed with non-consensual acts. There were however broad similarities between the complainants, each of whom alleged that the appellant had imposed himself upon her in the privacy of a family home in which he had a degree of control over her. In our view, those similarities were sufficient to justify the judge in giving a direction based on the unlikelihood of coincidence. 52. Like the single judge, we have found it necessary to read the judge’s direction on this topic more than once, and we keep very much in mind that the jury were not able to take that course because the direction was not given in writing. We regret to have to say that the direction lacks clarity and focus, and we cannot think the jury would have found it easy to follow. There are two aspects of the direction which particularly concern us. 53. First, we accept Mr Siddle’s submission that the incomplete transcript available to us does not include any passage in which the judge assisted the jury as to what similarities they might find to exist as between the evidence of the three complainants. We do not know whether she said anything on that topic in the initial part of her summing up which was not recorded, and we acknowledge the possibility that she did so. It would have been possible for an appropriate direction to be given quite briefly. We are bound to say, however, that the discursive direction as a whole lacks any obvious structure, and we therefore cannot be at all confident that the missing section would have contained a clear and succinct indication of the relevant features of the evidence. Certainly the passage which we have quoted does no more than leave it to the jury to consider “any degree of similarity between their allegations that you perceive”. In those circumstances we are not satisfied that the judge identified for the jury either the similarities on which the prosecution relied, or any other similarities on which they could in her view properly rely, or the features of dissimilarity on which the defence relied. 54. Secondly, the defence case was as we have indicated that the complainants had colluded and were deliberately giving false evidence. The judge was entitled to tailor her direction to reflect the defence case, and she did clearly direct the jury that they must be sure that a complainant’s evidence was not the product of collusion before they could rely on it as having any relevance to the credibility of another complainant. It was however also incumbent upon her to direct the jury as to the need for them to be able to exclude a risk that, even in the absence of collusion, one complainant may have been influenced, consciously or unconsciously, by what another had said. In this respect, the judge’s direction was much less clear. The judge did in an early part of her direction tell the jury that they must be sure that the evidence of one complainant had not been “influenced in any way, either consciously or sub-consciously” as a result of her hearing about the allegations of others. Thereafter, however, she used the word “contamination” to mean deliberate telling of lies, which was also referred to as “collusion”. At no point did the judge give the jury a simple explanation of the difference between, on the one hand, collusion between witnesses to put forward false accounts, and, on the other hand, innocent contamination and unconscious influence of one witness through her knowledge of what another has said. At no point did she give an explicit direction that the jury must be satisfied that they could exclude both, even though the defence case focused on the former. 55. We bear in mind that the issues in the trial were stark. A jury properly directed would have been entitled to exclude any risk of collusion or of unconscious influence, to be satisfied that the witnesses were independent of one another in this regard, and to use the coincidence of broadly similar allegations in the way which the judge indicated in the passage we have quoted. We have concluded however that the lack of clarity in the oral direction makes it impossible to say that the jury were properly directed in this regard. 56. Before moving on to the remaining grounds of appeal we must yet again stress the desirability of a judge providing the jury with written directions, about which counsel have had an opportunity to make submissions before they are given to the jury. As this court has frequently pointed out, written directions can be valuable even in an apparently straightforward case, or in respect of a conventional direction; and when the jury have to be given a number of legal directions, including in respect of legal issues such as cross-admissibility, they are even more important. In the present case, we think it is very regrettable that the jury were not given written directions on important matters of law. The provision of written directions would have assisted the jury to follow them as they were delivered, to remind themselves of the legal directions if it became necessary to do so during their deliberations, and to approach the issues in the case in a structured manner. However clearly the oral directions were expressed, the jury would surely have found it easier to follow them if they also had them in writing; and regrettably, as the passages which we have quoted show, the terms in which the learned judge delivered her summing up were not entirely clear. Moreover, we agree with the single judge that the structure of the summing up was not clear, making it harder for the jury to identify those points at which the judge was directing them about the law as opposed to reminding them of the evidence. 57. In addition, we emphasise once again that the assistance which written directions give to the jury is not their only benefit. The mental discipline involved in drafting them has the further advantage of enabling the judge to focus on precisely what legal issues need to be the subject of directions, to refine the manner in which those directions should be expressed, and to identify areas of difficulty or complexity which may not have been apparent in the earlier stages of the trial. 58. We can deal briefly with the complaint that Mr Siddle was prevented from crossexamining Ms Ferrary as fully as he would have wished. It seems to us that in their discussion of this point in the absence of the jury, the judge and counsel may, to some extent, have been at cross purposes. Be that as it may, it seems to us the point to which Mr Siddle wanted to establish at trial was a very simple one: the bullet point notes, CF1, contained no reference to any complaint of sexual abuse by the appellant. Mr Siddle was entitled to make that point, and to bring to the jury’s attention that the bullet point notes did include complaints about other aspects of CB’s relationship with the appellant, and did include a reference to a sexual allegation against another man. We do not believe that Mr Siddle was prevented from making those legitimate points. Beyond that, however, we do not see how - as matters stood at the time of the trial - detailed cross-examination of Ms Ferrary about the matters recorded in the bullet point notes could have assisted the jury. In the nature of a counselling session, those notes were likely to relate to highly personal matters; and it would have been quite inappropriate to trawl through their contents for the sole purpose of reiterating that they did not include any reference to sexual abuse by the appellant. We therefore do not find anything in this ground of appeal which casts doubt on the safety of the convictions. 59. We can also deal briefly with the criticism that the judge in her summing up commented upon the defence case in a way which may have seemed to the jury a rebuke of Mr Siddle. We do not see that there was any ground for a rebuke, as Mr Siddle was doing no more than putting the defence case; and although the judge was entitled to point out that the allegation was of perverting the course of justice, and not simply of unprofessional conduct, we think it regrettable that she did so in the terms she did at the start of her summing up. This is not, however, a matter which either on its own, or in combination with other grounds of appeal, undermines the safety of the convictions. 60. We turn to the challenge now made to the genuineness of the notes said to have been restored to Ms Ferrary by her daughter, and the evidence which we have heard in this appeal. 61. CB’s evidence at trial was that she reported her husband’s sexual offences to Ms Ferrary in the course of counselling sessions in 2013-2014, a year and more before she made her complaint to the police which was said by the appellant to be a fabrication. Ms Ferrary in her evidence to the jury confirmed that such reports had been made to her, notwithstanding that she had not mentioned them in her bullet point notes CF/1, and she was able shortly before the trial to produce the more detailed notes, CF/6, which confirmed that part of her evidence. On behalf of the appellant it was argued before the jury that the absence of any reference to sexual abuse in CF/1 was a suspicious feature, as was the late emergence of CF/6, and that the jury could not be sure that Ms Ferrary’s evidence had not been fabricated in order to assist CB. It is now submitted that evidence which has emerged since trial shows a further suspicious feature, suggesting that Ms Chevin too has been involved in fabricating evidence in order to assist her mother and, indirectly, CB. 62. Mr Siddle invited us to receive, as fresh evidence pursuant to section 23 of the Criminal Appeals Act 1968, the agreed evidence of a police officer, DC McNamee, who had telephoned Ms Ferrary in July 2018 and asked for her daughter’s address. The evidence showed that Ms Ferrary initially refused to provide the address, saying she did not want to get her daughter involved in the case. About an hour later she rang the officer, in a state of distress, saying – “I did not lie, but I may have misled the bit about my daughter being my supervisor, she has not been trained as a supervisor, as like me she is not trained as a supervisor, I did not have aa supervisor, so we would just check each other’s stuff … ” Mr Siddle relies on that as a confession by Ms Ferrary that she had given misleading information in her evidence, and submits that if this evidence had been available at trial the jury would have viewed Ms Ferrary’s evidence in a different light. 63. Mr Siddle also relies on what he submits were unsatisfactory accounts given by Ms Ferrary and Ms Chevin, when called as witnesses before this court so that their evidence could be heard de bene esse , as to the circumstances in which the notes CF/6 passed from the possession of Ms Ferrary to Ms Chevin and then back again. He points to the contrast between Ms Ferrary’s account in a witness statement of 12 th April 2017, to the effect that she had given those notes to her supervisor Ms Chevin, who had recently retrieved them from a file in her office, and the account given to this court by both witnesses to the effect that the notes had been with other documents in an envelope which Ms Ferrary had either dropped or inadvertently left behind when she was visiting her daughter, had been found by Ms Chevin at a later date when she was moving house, and had then remained with Ms Chevin until shortly before the trial. Mr Siddle also points to the fact that in their evidence to this court both Ms Ferrary and Ms Chevin described the latter’s role as one of emotional support and of being a supervisor in the sense of helping Ms Ferrary to manage her emotions after difficult sessions with clients. Mr Siddle suggests that the curious concept of “supervising emotions” is a device to try to explain away the initial misleading references to Ms Ferrary’s supervisor. 64. In view of our decision that the appeal must be allowed and a retrial ordered, it would not be appropriate for us to comment in detail upon evidence which may or may not be before the jury at the retrial. It suffices for present purposes to say that we are satisfied that the evidence of DC McNamee met the criteria in section 23 of the 1968 Act, and we admitted it as fresh evidence. It is evidence that Ms Ferrary gave misleading evidence to the jury, and it is evidence which, if it had been available at trial, would have strengthened Mr Siddle’s challenge to the credibility of Ms Ferrary and thus, indirectly, his challenge to the credibility of CB. The prosecution relied on Ms Ferrary’s evidence at trial as supporting the consistency, and therefore the reliability, of CB’s allegations. But Ms Ferrary could only provide that support if the jury could be sure that she was giving a truthful and reliable account of what CB had told her during the counselling sessions. In assessing her reliability, the assertion that she had given contemporaneous notes CF/6 to her supervisor was an important factor for the jury to consider: the absence from the notes CF/1 of any reference to sexual abuse was a significant feature, and Ms Ferrary pointed to the notes CF/6 as confirming that sexual abuse was mentioned even though not recorded in CF/1. It is now known that Ms Chevin is her daughter, and she was not a supervisor in the sense which the jury are likely to have understood that term. It is also known that Ms Ferrary has since the trial told DC McNamee that she may in one respect have misled the jury, albeit she maintains the truthfulness of her evidence as to what was said in the counselling sessions. We accept that on the face of it, these are matters which call into question the safety of the convictions. 65. The oral evidence of Ms Ferrary and Ms Chevin did not meet the criteria in section 23, and we did not receive it as fresh evidence. In seeking to deal with the issues which have arisen, their evidence raised a number of questions to which we did not find any satisfactory answer. We do not think it appropriate to go into detail. For present purposes, it suffices to say that their accounts did not undermine the points which Mr Siddle makes, and we are unable to be satisfied that the convictions are safe. 66. We turn finally to the complaint made in the fifth ground of appeal about the decision of the learned judge to say nothing to the jury about the appellant’s clothing on the last day of the trial. This was an awkward situation, which might have been, but was not, foreseen. There were various approaches which could have been taken. In the absence of any agreement between prosecution and defence, it was a matter entirely within the discretion of the trial judge how best to deal with the situation which had arisen. We can well understand why she concluded that the best course was to say nothing at all. It cannot be said that she was wrong to exercise her discretion in that way. 67. It was for those reasons that we concluded that these convictions were unsafe. In doing so, we have had regard to the combined effect of the deficiencies in the summing up, and the further evidence now available in relation to the evidence of Ms Ferrary, which bears on the extent to which she was capable of supporting the consistency of CB.

2019_05_23-4599.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/875/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/875

a6e875fdd38a8fd8f5a65dce16bad77282391c98e608c4561be4412d93655125

[2022] EWCA Crim 1074

EWCA_Crim_1074

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 202200924/A4 [2022] EWCA CRIM 1074 Royal Courts of Justice Strand London WC2A 2LL Friday 15 July 2022 Before: LADY JUSTICE SIMLER DBE MRS JUSTICE CUTTS DBE HIS HONOUR JUDGE MICHAEL CHAMBERS QC RECORDER OF WOLVERHAMPTON (Sitting as a Judge of the CACD) REGINA V ALAN FRANCIS 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) _________ MR N JOHNSON QC appeared on behalf of the Appellant. J U D G M E N T LADY JUSTICE SIMLER: Introduction 1. On 18 January 2022 in the Crown Court at Liverpool before Martin Spencer J and a jury, the appellant was convicted of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 (count 5) and possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968 (count 6). He was acquitted of attempted murder (count 4). The judge sentenced him on 25 February 2022 to concurrent terms of imprisonment of seven years on count 5 and 12 years on count 6. There was a co-accused, James Freeman, who pleaded guilty to wounding with intent to cause grievous bodily harm and to possession of a firearm with intent to endanger life. He was sentenced to an extended determinate sentence of 18 years and six months, comprising a custodial term of 14½ years and an extension period of four years, the judge having found him to be dangerous . The appellant now appeals against sentence with leave of the single judge and has had the benefit of representation from Mr Johnson QC, to whom we are grateful. The facts 2. The offences took place on 17 May 2021 at The Old Bank public house in the Huyton area of Liverpool. The appellant was in the patio area of the pub with his partner when James Freeman approached on an electric bike. Freeman was wearing a black coat with his hood up and his face concealed. On seeing Freeman approach the appellant appeared spooked. He pulled his own hood up and ran inside the pub. Freeman was armed with a loaded semi-automatic pistol. He got off the bike and ran into the pub following the appellant. The appellant waited just inside the door and as soon as Freeman entered there was a tussle between the two men. During the tussle Freeman discharged the weapon injuring the appellant in the groin. The tussle continued and spilled out onto the patio area. Customers at the pub intervened and Freeman was overpowered. He was kicked and punched to the ground. The appellant took the firearm from Freeman and tried to shoot him with it. The weapon appeared to misfire. The appellant then pulled back the slide on the gun and ejected the misfired cartridge. He then shot Freeman twice in the chest at close range, before making off on the bike that Freeman had arrived on. In doing so he took the gun away with him and was able to dispose of it in circumstances where it has never been found. 3. Freeman having been shot managed to stagger away and an ambulance was called. Neither shot proved fatal and at hospital it was discovered that one bullet lodged near his heart and one in his lung. Neither was removed as there was no immediate risk of complication. The bullets are likely to be surrounded by dense scar tissue over time but with no further consequences likely. Freeman gave a no comment interview to police. 4. Two hours after the shooting the appellant attended hospital. He was treated for two minor injuries next to the pelvic bone which were assumed to be fragments of gunshot. The weapon, as we have said, was not recovered. He gave a no comment interview after providing a prepared statement asserting that throughout this incident he acted in lawful self-defence. That defence was maintained at trial but was rejected by the jury and the appellant was ultimately convicted of the two offences already described but acquitted of attempted murder. 5. The appellant was born on 4 February 1992. He had 12 previous convictions for 33 offences between 2005 and 2021. Those convictions included possession of class C drugs, attempted robbery, robbery, intimidation of a witness, converting criminal property, sexual assault and battery. In 2009 he had received a sentence of 78 months' detention in a young offender institution for attempted robbery, robbery and possessing an imitation firearm while committing an offence. The judge proceeded to sentence the appellant without a pre-sentence report. In the circumstances of this case a report was unnecessary then and is not now necessary. The judge had five character references for the appellant and we too have read those references. The sentence 6. The judge took the offence of possession of a firearm with intent to endanger life as the lead offence and passed a concurrent sentence for the wounding of Freeman. He accepted that the assault was incidental to the firearm offence and that it was the commission of the assault which was the evidence from which the jury had inferred the intention to endanger life. Unlike in Freeman's case, he therefore accepted that the possession of the firearm with intent to endanger life and the wounding with intent were so bound up with each other that the latter did not in fact aggravate the former. The judge went on to conclude however, and notwithstanding the submissions made on behalf of the appellant, that the firearm offence fell into category 2A with a starting point of 14 years' imprisonment. He identified the appellant's previous convictions as statutory aggravating factors increasing seriousness, noting that the appellant had no previous firearms convictions. He did not find the appellant to be dangerous. Having taken the starting point of 14 years, he increased it to reflect the aggravating factors but then reduced the sentence to reflect the mitigation and in particular, the fact that the appellant was initially the victim, had not instigated the violence and was initially fighting for his life reacting to the actions of Freeman. The appeal 7. In written submissions that were developed orally on behalf of the appellant, Mr Johnson QC submitted that this was a highly unusual case: the appellant was the target of a terrifying attack by a masked gunman, at a time when he was at a pub without any weapon, enjoying the day and certainly contemplating no violence. Having been confronted by the masked gunman he managed to disarm him, reacting coolly in the face of what must have been terrifying and having been shot in the leg. Mr Johnson submitted that the incident was different from almost any other offence of having a firearm with intent to endanger life, because in almost every other case encountered by the courts of this kind, the case involves a significant degree of mature reflection, reflected in the process inevitably undergone in order to obtain a firearm in the first place. That is a factor of significance in other cases because of the importance of deterrence in sentencing. It was absent here: there was no planning, no time for any significant reflection, and this is underscored by the shortness of time between the initial arrival of Freeman and the discharge of the gun into his chest. The firearm was available as a direct consequence of the appellant being the victim of an attack by Freeman. He was entitled to defend himself and would in all likelihood have been shot much more seriously, if not killed, had he not done so. 8. Mr Johnson submitted that this was a case of excessive self-defence, a feature reflected in the Definitive Guideline by reference to the absence of planning or time for reflection. He submitted that the judge was in error in placing this case in category A. It was a unique case and should, for all of those reasons, have been placed within category B of the Guideline. 9. Not only was the judge in error for failing to recognise the exceptionally unusual circumstances in which these offences were committed, but he failed to balance the features of culpability in category A with the lack of planning and all that went with it in category C. Had he done so, Mr Johnson submitted, he would have taken a starting point for category 2B rather than the starting point he took. In consequence, the total sentence was manifestly excessive. Discussion 10. The appellant does not challenge the judge's conclusion that harm was category 2 in this case. The Sentencing Council's Definitive Guideline effective from 1 January 2021 and applicable in this case, makes clear that to determine culpability the court should determine the offence category with reference only to the factors listed in the tables and should weigh all applicable factors set out in the relevant table. The Guideline goes on: "Where there are characteristics present which fall under different levels of culpability the court should balance these characteristics to reach a fair assessment of the offender’s culpability." 11. Here, high culpability A was evidenced by the fact that the firearm was discharged. There were no other relevant factors identified in that category. The factors identified in the Guideline reflecting lower culpability C, are, so far as relevant in this case, limited to "little or no planning or unsophisticated offending". In terms of medium culpability B, the relevant consideration here was: "Other cases that fall between categories 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 described in A and C." 12. As we have said, the judge concluded that culpability was category A because of the use of a highly dangerous weapon. He rejected the submission that this was a case of excessive self-defence though he accepted that the appellant was acting in response to extreme violence. He continued: "In the end though what I cannot get away from is that you shot James Freeman with his own gun, thus you knew, as I find, that he was no longer a danger to you because you had his gun and I do not believe for a moment your evidence at the trial that you thought or feared he was reaching for a second gun and my interpretation of the jury’s verdict is that they too were sure that this evidence was untrue." 13. We do not accept Mr Johnson's submission that the judge's sentencing remarks reflect that he ignored or lost sight of the fact that there were also characteristics which might have pointed to placing the appellant in a lower category in this case. 14. As this court has said repeatedly, application of the Guideline is not a mechanistic exercise. Nor is it a simple question of balancing the number of factors in one category against the number of factors in another. Rather, in what is an evaluative exercise the factors must be assessed in the context of the facts of the individual case in order to determine where the balance lies and to what extent a factor in one category reduces the impact of another in a different category. Here, we do not accept that the two factors balanced each other out on the facts of this case and nor did the appellant's culpability fall between higher and lesser culpability. It is clear that the judge regarded the discharge of the firearm in the circumstances he described as much the most serious determining factor in this case, with the absence of planning of very little relevance in context. We can see no error in that approach. In particular, although Freeman was initially the aggressor, the appellant defended himself and was, as Mr Johnson described it, fighting for his life and in the course of the tussle was wounded by the discharge of the gun. But the struggle continued and spilled out onto the patio area where Freeman was overpowered. Having been kicked and punched to the floor and lying on the floor, the appellant took the gun from him and from that point onwards, as the judge found, the appellant knew he was no longer in danger, knew that he no longer needed to defend himself, knew that Freeman had been disarmed and could simply have waited for the police to arrive and hand the gun over to them. Instead of doing that, as the judge observed, he took the law into his own hands, attempted to shoot Freeman and, the gun having misfired, put another bullet into the chamber shooting Freeman twice in the chest at close range as an act, as the judge found it to be, of retaliation and revenge. The judge presided over the trial and was in the best position to make an assessment of the appellant's culpability. He had ample evidence for his conclusions and we see no basis for interfering with them. Moreover, having taken the starting point of 14 years and made an upward adjustment from 14 years to reflect the statutory aggravating features that undoubtedly were present in this case, the judge made a downward adjustment to reach the ultimate sentence of 12 years. This properly and adequately reflected the unusual circumstances of this case and in particular, his express acceptance that there was no planning, no time for significant reflection, that the firearm was available as a direct consequence of Freeman's attack on the appellant and that initially, at least, the appellant acted in self-defence albeit that this changed subsequently. 15. In our judgment, the judge's approach reflected a proper and fully justified application of the Sentencing Council's Guideline. The overall sentence he imposed was condign punishment and not manifestly excessive in all the circumstances. Accordingly and notwithstanding the cogent submissions made by Mr Johnson on the appellant's behalf, this appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2022_07_15-5389.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1074/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1074

02938637a76fa702289b52db47ab1aae86a45cbfbc0c8a6bed9c0d2d8cfa13a2

[2014] EWCA Crim 836

EWCA_Crim_836

crown_court

Case No: 200702991 C2 Neutral Citation Number: [2014] EWCA Crim 836 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING (His Honour Judge Risius) Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/05/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE SWEENEY and RECORDER OF MIDDLEBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC - - - - - - - - - - - - - - - - - - - - - Between : ANDREW THOMPSON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - -

Case No: 200702991 C2 Neutral Citation Number: [2014] EWCA Crim 836 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING (His Honour Judge Risius) Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/05/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE SWEENEY and RECORDER OF MIDDLEBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC - - - - - - - - - - - - - - - - - - - - - Between : ANDREW THOMPSON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms S Forshaw QC and Mr D Reid (instructed by Edward Hayes - Solicitors ) for the Appellant Mr JA Price QC (instructed by CPS Special Crimes Division Appeals Unit ) for the Respondent Hearing date: 15 April 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : Introduction 1. On 30 October 2013 the full court gave leave to the appellant to appeal against his conviction at Reading Crown Court on 11 May 2007 for sexual offences committed against male children (see [2013] EWCA Crim 2264 ). 2. The appellant faced an indictment containing 14 counts, alleging sexual assaults upon nine boys under the age of 16 years, committed during the years 2004, 2005 and 2006. He appeared for trial before His Honour Judge Risius at Reading Crown Court. On 11 May 2007 the appellant was convicted upon four counts charging him with offences contrary to section 7 of the Sexual Offences Act 2003 , namely: Count 3: Sexual assault of SF Count 4: Sexual assault of SF Count 11: Sexual assault of ZB Count 12: Sexual assault of ZB, as an alternative verdict to sexual assault by penetration contrary to section 6 of the Sexual Offences Act 2003 . The appellant was found not guilty upon the remaining 10 counts relating to seven other boys. Each of the complainants is entitled to his anonymity under the Sexual Offences (Amendment) Act 1992 and we shall refer to them and some of their relatives by using initials. 3. Counsel instructed at the time of trial, Ms Chan, drafted grounds of appeal against conviction and sentence. The application for leave to appeal against conviction was refused by the single judge on 14 August 2007. Only the appeal against sentence proceeded at that time. On 27 May 2010 this court, differently constituted, quashed the sentence imposed by the judge of imprisonment for public protection and substituted a determinate sentence of 3 years imprisonment. It confirmed the making of a Sexual Offences Prevention Order but amended its terms. 4. The possibility that the appellant was suffering from Asperger’s syndrome was first raised by a prison counsellor in August 2008 during preparation for a parole board hearing. The formal diagnosis was made by a clinical psychologist, Mr Nicholas Keene, on 17 September 2008. 5. On 8 November 2011, following his release from prison, the appellant was arrested on suspicion of committing offences against other boys during the late 1990s and 2000. He was subsequently charged in a 17 count indictment. On 14 September 2012, following his trial before the Honorary Recorder of Aylesbury, His Honour Judge Sheridan, the jury returned verdicts of not guilty upon all counts. During the course of the trial Judge Sheridan had permitted the defence to adduce evidence from two experts, Mr Nicholas Keene and Mrs Pamela Yates. They expressed the opinion that the appellant suffered from Asperger’s syndrome. One of the features of the appellant’s condition was that he might behave in a socially inappropriate but innocent manner towards children, without having the comprehension that his actions could be misconstrued. This was relevant, the judge found, to the question whether actions by the appellant, admitted or proved, were or were not motivated by a desire for sexual gratification. At the Aylesbury trial, while calling no expert evidence of its own, the prosecution challenged the diagnosis, the existence or extent of relevant symptoms, and the relevance of those features of the syndrome that the jury found existed to the issues the jury had to determine. The grounds of appeal 6. On 14 December 2012 Ms Forshaw QC, who represented the appellant at his Aylesbury trial, prepared substituted grounds of appeal against the conviction at Reading Crown Court and sought leave for an extension of time within which to renew the application for leave. The full court subsequently granted leave. The appellant now relies upon the fresh evidence of Mr Keene and Mrs Yates, admitted under section 23 of the Criminal Appeal Act 1968 , as a ground upon which to challenge the safety of his convictions in 2007. It is the appellant’s case that had the jury been aware in 2007 of the diagnosis subsequently made, and of the evidence later given by the experts to the jury in 2012, they may have formed a different view both of the appellant himself and of his actions. Mr Price QC represented the prosecution in the 2007 trial but not in the 2012 trial. We have been much assisted by his presence at this appeal. Having considered the fresh evidence, the respondent has not sought to challenge it, and the evidence has been admitted in the form of reports from the experts and transcripts of their evidence in the Aylesbury trial. The respondent’s case is that, notwithstanding the fresh evidence, the verdicts of the Reading jury were safe. The appellant’s previous convictions 7. The appellant’s bad character was admitted in evidence in both trials. The appellant was born on 29 April 1964 and is now aged 49 years. On 2 April 1982, when he was aged 19, he appeared before Wakefield Magistrates Court and was placed on probation for three years for an offence of gross indecency with a child, contrary to section 1 of the Indecency with Children Act 1960 . The appellant went to a churchyard where he encouraged a boy aged 6 or 7 years to masturbate him. On 4 July 1985 at Woodbridge Magistrates Court, when he was aged 21 years, the appellant was placed on probation for two years for an offence of indecent assault of a male. The appellant was running a mobile shop. He lifted up a 9 year old boy to enable him to view goods on a shelf and, as he did so, he laid his hand across the boy’s genitals outside his trousers. Following the appellant’s arrest in 2006 there was found on his computer evidence of an internet search carried out by the appellant on 25 December 2003, when he looked for material relating to under-age rent boys in Sri Lanka. In evidence, both in 2007 and 2012, the appellant claimed that he was planning a holiday to Sri Lanka alone, was aware of the adverse publicity given to a television personality after a similar trip, and, for that reason, wished to avoid any destination associated with the sex trade in Sri Lanka. The trial at Reading Crown Court Background 8. During the period August 2004 to June 2006 the appellant lived in the Reading area and worked as a transport manager. He lived alone. He suffered from a medical condition known as Klinefelter’s Syndrome, a consequence of which was to render the appellant sterile. Although he could not have children of his own his ability to perform the sexual act was unaffected. He had occasional relationships with women but said in evidence that he had a low sex drive. He was particularly saddened by his inability to father children and, as a “paternal” and charitable gesture, befriended boys and girls and their parents. During the period of the indictment the appellant would take children on trips to adventure parks or other attractions. He sponsored a local football team and took boys to football matches. He took a group of boys to swimming baths and coached them. He consulted and was trusted by the children’s parents, some of whom allowed their children to stay overnight at the appellant’s home. The nature of the prosecution case 9. The parents of one of the boys, JT aged 9, expressed concern about the appellant’s behaviour to social services on 19 May 2006 (see further paragraph 13 below). The investigation led to complaints by nine boys in all. There was a common theme that the appellant would, following sessions at the swimming baths, in the communal area of the changing rooms, dry the boys with a towel. Having returned from trips and/or while the boys were staying overnight at his home, the appellant would give the boys baths or showers. The prosecution asserted that while drying the boys at the swimming baths and, at home, during the course of soaping the boys’ bodies and drying them afterwards he would by that means touch them sexually. In view of the circumstances, Judge Risius directed the jury upon the necessity for proof that the touching was sexual. The judge suggested that, with the exception of count 4 and count 12 (paragraph 11 below), none of the counts involved touching that was inherently sexual. The judge explained, at page 12H of the transcript of his summing up: “After all, washing and drying children’s boys all over is something which is done routinely every day, for example, by parents and nurses, and nobody would suggest that there was a sexual element in those circumstances. Likewise, playing games with children in a swimming pool.” 10. The judge then directed the jury how touching that was not inherently sexual may, nevertheless, be sexual depending upon the jury’s conclusions as to the circumstances in which the touching occurred and the appellant’s purpose. He posed questions for the jury as follows, at page 14F: “First, ask yourselves this question: Disregarding what may have happened before and after the particular touching, and ignoring also Mr Thompson’s purpose in touching the children on that occasion, could that touching because of its nature possibly be sexual? If the answer is, “No”, that is the end of that particular count, and you must find Mr Thompson not guilty on it. If, however, the answer is, “Yes”, you must then go on to ask yourselves, secondly, whether, taking into account the surrounding circumstances, and Mr Thompson’s purpose in touching the child, the touching was in fact sexual. If you are sure the answer is, “Yes”, then you must find him guilty on that count. If you are not sure it was sexual, then your verdict must be one of not guilty.” The indictment 11. Count 1 was a specimen count that between 1 February and 25 May 2006 the appellant sexually touched JT. JT described the appellant making fun of his wish to use a cubicle after swimming, calling him “Shy, Shy” and “Dickhead”. The appellant would dry JT and in doing so would touch the boy’s private parts through the towel. The appellant admitted drying JT but said there was no sexual gratification involved. He would dry the boys who were wasting time. Count 2 was a specimen count in which the appellant was charged, between 1 April and 30 May 2006, with sexually touching a 12 year old boy, LS. LS complained that during games in the pool the appellant kicked him in the genital area and would then allow his foot to linger against his bottom and beneath his genitals. The appellant accepted that during horseplay there might be some contact but there was no kicking and no sexual intention. Count 3 charged the appellant with a specimen offence that, between 20 August 2004 and 25 May 2006, he sexually touched SF, a boy aged 11 or 12. SF complained that when he stayed overnight with the appellant, the appellant would rub shower gel all over his body. The appellant agreed that he would gel SF’s body when he was taking a bath. He lingered only when washing SF’s feet. The appellant said that he, himself, took showers three or four times a day and his concern was only to ensure that the boys were clean. Count 4 was a specimen allegation that during the same period the appellant sexually touched SF by smacking the boy’s penis with his hand. The defence to count 4 was denial that any such incident had occurred. Count 5 alleged sexual touching of MO’B between 1 February and 31 December 2005, when MO’B was aged 10 or 11, by repeatedly and unnecessarily washing his body, including his genitals, while MO’B was standing in the bath at the appellant’s home. The appellant admitted one occasion of applying gel to MO’B’s body. He denied there was anything sexual about the touching. Count 6 also concerned MO’B, who said that when he came out of the pool the appellant would dry him all over. The appellant denied that he would do this. Count 7 charged the appellant with sexually touching BF, brother of SF, during the period 1 January to 25 May 2006, when BF was aged 6 or 7 years. BF said that the appellant would dry him all over. The appellant admitted the activity but denied that it was sexual. Count 8 concerned occasions during the same period when the appellant, at his home, washed BF all over his body, including his genitals. The appellant admitted the activity but said that it was not sexual. The complainant in count 9 was CC. On a single occasion between 1 January 2005 and 26 May 2006, when CC was aged between 4 and 6 years, the appellant, at his home washed CC’s body, including his genitals and bottom. The appellant said he was getting the boy ready for bed; there was no sexual motivation. In count 10 the appellant was charged that, at his home, between 1 January 2005 and 1 June 2006, he sexually touched LC, CC’s brother, aged between 10 and 12 years, by drying his body including his genitals. The appellant accepted that he had dried the boy but denied a sexual intention. In count 11 the appellant was charged that on a single occasion, between 1 January and 2 June 2006, when ZB was aged 11, he touched the complainant’s private parts, holding his hand there for ages, while drying ZB after a shower at the appellant’s home. The appellant denied that his hand lingered and maintained that his drying of the boy was quite proper. Count 12 also concerned ZB. It was alleged that during the same period, contrary to section 6 of the Sexual Offences Act 2003 , the appellant penetrated ZB’s anus with his fingers. The judge directed the jury as to an available alternative verdict of sexual assault, if the jury were sure that there was touching of the anus with the finger but not sure that the finger had been inserted into the anus. The appellant denied the act. In count 13 the appellant was charged that, between 1 January 2005 and 1 June 2006, he sexually touched RL by drying him all over with a towel despite RL’s protest that he could do it himself. Count 14 also involved RL, who complained that at the appellant’s home, he was soaked from his head to his tummy button, and from his knees to his toes. The prosecution alleged that the touching was sexual. The appellant said it was not. Bad character 12. The appellant’s previous convictions and his exploration of the Sri Lankan website (paragraph 7 above) were admitted in evidence. The judge explained (transcript page 26A) that the evidence had been received, not for the purpose of demonstrating that the appellant was likely to commit offences against boys, but as relevant to the question whether the acts of the appellant towards the boys had a sexual motivation. The judge pointed out to the jury (transcript page 26G) that in the case of almost all the counts the appellant admitted the touching on which the prosecution relied. The obvious exceptions were Counts 4 and 12. Complaints 13. JT’s mother gave evidence that on one occasion her son had told her that the appellant would rub his chin on his back and shoulders, and he would do the same to the other boys. Later, JT’s cousin, LS, joined the swimming group. One day in the garden LS said that the appellant rubbed his leg near LS’s private parts. JT added that the appellant had called him “Shy, Shy”. As a result, both mothers stopped their boys going swimming and a report was made to social services. It was this information that led to the police investigation. As a result, all nine boys were interviewed. MO’B’s mother and the mother of SF and BF were sisters. SF had complained to his mother on one occasion of the appellant washing and drying his private parts. SF’s mother spoke to the appellant who said that they had been in a hurry. He agreed not to do it again. SF made no further complaint. CC and LC lived with their mother in Wokingham. Her sons started to go swimming when her neighbours, the mothers’ of SF, BF and MO’B introduced her to the appellant. Neither of her sons had made any complaint before he was interviewed by the police. ZB’s brother played for a football team sponsored by the appellant and ZB was a spectator. ZB was invited to go swimming and on trips with the appellant. ZB made no complaint to his mother before the appellant was arrested. RL made no complaint to his mother before he was interviewed by the police. The mothers all said in evidence that their sons were able to wash and dry themselves. They would not have been happy to learn that the appellant was bathing them. Defence evidence 14. The appellant said in evidence that he had on one occasion dried JT’s body. That was because he was the last to get changed. He agreed that he had used his leg to throw LS in the swimming pool. That was just horseplay. He agreed that he had washed SF in the bath. That had taken a minute or so. There was no sexual intention. He had never smacked SF’s penis. He recalled however that on one occasion when he was drying SF, SF had an erection. He agreed that he had told the police the same thing had happened on a second occasion, but in evidence he claimed that had been a mistake induced by the police. He had at the time of interview been tired and under stress. He insisted that such an incident had only occurred on one occasion. The appellant said that he had applied shower gel to MO’B’s body on one occasion, but not to his genitals. He had towel-dried BF but only to get him dressed. The same thing had happened at the appellant’s home. He had washed and dried CC ready for bed. On one occasion he had dried LC. He had washed ZB all over but had never inserted his fingers into ZB’s anus. That was not true. The appellant denied that he had ever dried RL’s body all over. The appellant said that his feelings towards the children were entirely paternal. 15. During the course of the defence case, four male witnesses, who had also been taken swimming and had stayed at the appellant’s home when they were younger, gave evidence that nothing untoward had occurred. They all said that they had, when necessary, washed and dried themselves. Other witnesses spoke of the appellant’s paternal regard for children and his reputation for a generous nature and charitable works. The expert evidence 16. Mr Nicholas Keene is a consultant clinical psychologist based at the Oxford Clinic, Littlemore Hospital in Oxford. Mr Keene carried out an assessment of the appellant during the period 12-17 September 2008. In his report of 17 September 2008 Mr Keene described Asperger’s Syndrome, as “a life long development disorder akin to autism in people without other cognitive impairments”. The diagnostic manual, DSM – IV, required two separate “domains of impairment to be present across the life span”: “(1) a qualitative impairment of social interaction, and (2) restricted, repetitive or stereotyped patterns of behaviour, interests and activities.” Mr Keene concluded, having applied the Cambridge Lifespan Asperger’s Syndrome Service (“CLASS”), which employed more stringent diagnostic criteria than DSM - IV, that the appellant met these criteria. He identified the features of the appellant’s condition that caused him most difficulty as: (i) a failure to develop peer relationships; (ii) lack of social and emotional reciprocity; (iii) inability to understand social situations and the thoughts and feelings of others; (iii) preoccupation with “parts of objects or systems”; (iv) impairment of ability to make or sustain conversation; (v) rule-bound behaviour of his own making. 17. At paragraph 9.3 of his “Conclusion and Opinion”, Mr Keene identified a central trait of people with Asperger’s, present in the appellant, as particular difficulty in deciphering what others are thinking. Mr Keene called this “poor theory of mind”. Thus, while the appellant is an intelligent and literate man, he is socially naïve. In the context of the trial at Reading Crown Court, it would not have occurred to the appellant that suspicions would be raised in other people’s minds about the appellant’s continued association with children or his conduct of bathing and drying them. 18. Mrs Pamela Yates has a combined degree in social work and psychology from Witwatersrand University in Johannesburg. In 1984 she worked for the South East London and Maudsley NHS Trust. She had a particular interest in learning difficulties and related challenging behaviour in children. Between 1986 and 2000 Mrs Yates worked for the Institute of Psychiatry at King’s College, London as a researcher and co-ordinator for a programme developed by Professor Sir Michael Rutter and Professor Patricia Howlin to diagnose and assist children with autism. She has subsequently undertaken projects with the Department of Health and the National Autistic Society. In 2000 she became a member of the advisory panel to North Hill House specialist school (now owned by the Priory Group) and became an independent consultant in autism and Asperger’s syndrome. As we understand it, Mrs Yates has no medical qualification but has acquired expertise and reputation in the field in which she specialises. 19. Mrs Yates assessed the appellant on 23 May 2012. She used Module 4 of the Autism Diagnostic Observation Schedule (“ADOS”). Mrs Yates agreed with Mr Keene that “the most useful way of describing” the appellant’s “profile of difficulties” was Asperger’s syndrome. His most significant impairment appeared to be in the reading of emotions expressed by others. The appellant had had lifelong difficulties in developing social relationships, especially with his peer group. His ability to organise and plan “helped to order his life sufficiently to survive, seemingly without the need for further support”. At the same time he would appear “rigid, very ordered and mechanical in social relationships and anxious to maintain the order he has imposed on his life”. His lack of emotional understanding would make him seem, at times, callous or selfish because he would be unaware of the impact of his behaviour on others. 20. It was a feature of the appellant’s personality that he did not readily make eye contact. Mr Keene described the appellant as “prompt, well presented and attentive”, but there was limited eye contact at the beginning of his interview. The appellant was a fluent and reasonably relaxed informant. Mrs Yates described the appellant’s “rather pragmatic style of answering, lack of facial expression and monotone intonation”. There was during her interview a lack of eye contact. The trial at Aylesbury Crown Court Intermediary 21. At the appellant’s trial before Aylesbury Crown Court, Judge Sheridan approved the use of an intermediary. We have, however, read a transcript of cross-examination of the appellant by Mr Price at Reading Crown Court, which was not available to the expert witnesses. We have detected no sign that the appellant laboured under any defect of thought or verbal reasoning. There are, however, indications either that the appellant was being evasive in some of his answers or that, having regard to the expert opinion subsequently obtained, he was inappropriately focused on inconsequential detail and, therefore, giving a misleading impression of evasiveness. The prosecution case 22. The indictment tried at Aylesbury concerned complaints of serious sexual offences committed against the children of one family whose father was known to the appellant through his work. It was alleged that the offences took place during the later 1990s and the year 2000 and, therefore, preceded the allegations made at the 2007 trial. The appellant was charged with offences of gross indecency and sexual assault comprising mutual masturbation, including oral masturbation, upon a child, DM, aged between 11 and 15 years. In count 9 the appellant was charged with the anal rape of DM, then aged 16 years. The appellant was charged with offences comprising masturbation of WM, then aged 10 – 16 years. On one occasion when WM was aged 17 years it was alleged that the appellant held the boy’s hand over his own penis. In count 13 the appellant was charged with attempted rape of WM. Finally, the appellant was charged with offences of sexual assault of SM, then aged 13 years, and of causing SM to sit on the appellant’s penis while both of them were in the bath, SM then being aged 13 years. The bad character evidence 23. The prosecution adduced in evidence all of the appellant’s previous convictions, including his convictions at Reading Crown Court in 2007. Mr Price QC pointed in argument to a subtle change in the appellant’s evidence between the 2007 trial and the 2012 trial. In the course of cross-examination before Reading Crown Court the appellant accepted that in 1981 he had led a boy aged 6 or 7 years to a churchyard where he encouraged the boy to masturbate him. In the 2012 trial, by which time he was aware of the late diagnosis of Asperger’s, the appellant claimed that he was masturbating in some disused toilets in the churchyard when a young boy happened to come past. He said that the boy told him that he was “doing it wrong”. The boy told him, “That’s not the way I do it with my cousin”. The appellant was explaining to the jury that he did not understand embarrassment and asked the boy if he would show him how to do it properly. The boy placed his hand on the appellant’s penis and masturbated him. The appellant claimed that he did not know at the time that what he was doing was wrong. This evidence was in contradiction of the evidence given by the appellant in 2007 and the opinion of Mr Keene that, although the appellant would have had a delayed emotional development and would not have been able to comprehend the emotions of a 6 or 7 year old boy, he would still have known that it was wrong to ask a child of 6 or 7 to masturbate him. 24. As to the conviction in 1985, during his trial in 2012 the appellant said he was not guilty. He pleaded guilty merely because his stepfather told him to do so. As to his searching of the internet, the appellant provided to the jury the same explanation that he had given in 2007. It was pointed out by this court during the course of argument that the appellant’s expressed anxiety to avoid social disapproval for staying at a hotel near sex spots in Sri Lanka seemed to contradict the expert evidence to the effect that he would not understand social disapproval. Ms Forshaw QC submitted that the appellant’s conduct should be seen as an example of his rule-bound behaviour. The appellant told both juries that a television celebrity, Matthew Kelly, had at about that time attracted media disapproval for his association with Sri Lankan resorts by reason of the availability of under-age rent boys. The appellant resolved that he should not expose himself to the same disapproval, whatever the level of his understanding of the reasons for that disapproval. In assessing the truth of this explanation the jury would have been assisted by knowledge of the appellant’s condition. 25. The defendant denied that he was guilty of the offences of which he had been convicted at Reading Crown Court in 2007. To the extent that they were relevant, section 74(3) of the Police and Criminal Evidence Act 1984 placed upon the appellant the burden of proving, on a balance of probability, that he had not committed the offences. The defence case was that the appellant’s previous convictions were of no assistance to the prosecution since he had not committed the offences. Ms Forshaw QC contended in argument that if, contrary to the defence case, the Aylesbury jury had concluded that the appellant was guilty of counts 3, 4, 11 and 12 in the 2007 indictment, they would have attached considerable weight to those convictions when assessing the strength of the prosecution case in 2012. Judge Sheridan directed the Aylesbury jury that they should consider the expert evidence that the appellant suffered from Asperger’s syndrome and reach their own conclusion. He advised the jury that in the absence of contrary evidence they should proceed on the basis that the appellant did suffer from Asperger’s syndrome, a life-long condition. If so, they should judge its effect upon their consideration of the appellant’s conduct both as alleged in the indictment and in 1981, 1985, 2003 and 2006. Ms Forshaw submits that it is more probable than not that the Aylesbury jury concluded, in the appellant’s favour, that his touching of the children during the period 2004 - 2006 was non-sexual. The defence case 26. The appellant had been a friend of the complainants’ family. He had helped to carry out building modifications to their home. The appellant admitted an innocent association with the children. The defence case presented to the Aylesbury jury was that two of the complainants were suspected of viewing child pornography on a computer in their home and that, when interviewed by the police, first one and then the other attempted to blame this appellant for introducing them to the material. The police had examined the appellant’s computer and no such material was found. The accusations became more serious. The appellant’s case was that they were entirely false. It was submitted that, despite their denial, the children were aware of the appellant’s arrest in 2006 and at least of the generality of the rumours circulating and the allegations made against him. They had used the appellant as a soft target at which to deflect blame. Some lies told by the complainants were exposed in evidence. Judge Sheridan gave to the jury a firm direction that if they considered there was evidence of conspiracy between the complainants to deflect blame from themselves to the appellant by telling lies about him, they should conclude that it would be unsafe to convict the appellant of any offence. As we have observed, the charges faced by the appellant at Aylesbury concerned, in the case of two of the complainants, explicit acts of masturbation, rape and attempted rape, and, in the case of the third, sexual assault in the context of bathing. As to the third complainant also, the defence case was that no such event occurred. There had been no occasion during the complainant’s 13 th year when he took a bath the appellant’s home. The case for the respondent 27. In this appeal the respondent did not challenge the diagnosis of Asperger’s syndrome; nor did Mr Price QC challenge the features of the syndrome which the experts attributed to the appellant. He submitted that the nature of the issue between the prosecution and the defence upon the counts in respect of which the appellant was convicted in 2007 demonstrated the reason why the jury had distinguished between those counts and the majority. The issue in count 3 was purely one of fact, namely whether the appellant had “for ages” soaped and dried SF’s private parts. The appellant volunteered in interview that SF had an erection while he was being dried. That was not something of which the boy had complained. There was an undeniable circumstantial link between the allegation made by the boy and the appellant’s admission in interview. The fact that the appellant admitted that there had been a similar, second, occasion must have drawn to the jury’s attention the obvious connection between the appellant’s activity and the boy’s erection, and the improbability of coincidence. The appellant’s denial in evidence of any second occasion betrayed his awareness of the significance of his admission. As to count 4, there was a straightforward issue whether the appellant had smacked the boy’s penis. If he had, sexual motivation was a straightforward conclusion for the jury to reach. As to count 12 the complainant ZB, when first interviewed, had mentioned only the drying activity. When interviewed on a second occasion he claimed that the appellant’s finger had been inserted into his anus and moved. Mr Price QC acknowledged that the jury may not have been prepared to construe the word “inside” as signifying that the boy was complaining of insertion of the appellant’s finger into his anus rather than movement between the boy’s buttocks. They were, however, satisfied that there had been an action of sufficient significance to demonstrate a sexual assault involving the touching of the anus. The jury’s conclusion in this respect would have assisted them upon their interpretation of the appellant’s purpose in drying ZB (count 11). 28. Mr Price QC argued that nothing in the diagnosis made by Mr Keene and Mrs Yates in 2008 and 2012 could have had any material bearing on the Reading jury’s analysis of the evidence relevant to the counts on which he had been convicted in the 2007 trial. The issue for the jury was whether the incidents, as described by the complainants, had taken place. If they took place as the boys described none of the “difficulties” under which the appellant laboured in his ordinary life could place an innocent construction upon his actions. Discussion 29. We do not accept Ms Forshaw QC’s argument that the jury’s verdicts at Aylesbury in 2012 can alone resolve the issue as to whether the verdicts returned by the jury at Reading in 2007 were unsafe. Upon Judge Sheridan’s directions to the jury there is a real prospect that the jury was not satisfied that the complainants were honest witnesses of events. If they were not, they may have acquitted upon all 17 counts because they were unsure that the complainants had not conspired to make false allegations against the appellant. If that was the jury’s conclusion, they may never have had occasion to examine the effect of the expert evidence upon the question how the appellant’s actions should be interpreted. 30. The appellant explained to the jury in 2007 that he regarded his actions as paternal, motivated solely by a need to ensure that the boys were properly cleaned and dried. We commence our analysis with an acknowledgement that the 2007 jury was not prepared to conclude that the act of washing or drying any one of the children would necessarily imply a sexual motive. The jury could not conclude so that they were sure that in the case of seven of the complainants the touching was sexually motivated. In his cross-examination of the appellant, and during his final speech to the jury, Mr Price QC, for understandable reasons, suggested that the appellant must have been aware that he was taking an extreme risk by behaving in the manner he admitted. For that reason there must have been a sexual motive for the appellant’s behaviour. The expert evidence was centrally relevant to this issue because, in the opinion of Mr Keene and Mrs Yates, the appellant would not have been aware of the social risk. However, this was a prosecution argument that Mr Price concedes and asserts the jury rejected in any event, without the need for assistance from the experts. We see the force of Mr Price’s submission but it is not a complete answer to the fresh evidence. The issue that confronts this court is whether, had they been aware that the appellant was suffering from Asperger’s syndrome, the jury may have reached a different conclusion upon both issues of fact and issues of interpretation of the appellant’s conduct relevant to counts 3, 4, 11 and 12 specifically. 31. There are three respects in which, we are satisfied, the jury may have been assisted by the evidence of Mr Keene and Ms Yates. First, in the case of SF, the complainant protested that it was unnecessary for the appellant to wash and dry him so thoroughly. A person like the appellant who was rule-bound and somewhat obsessive about personal hygiene might not be sensitive to any expression of the boy’s resistance. Furthermore, he might not, at the time , have attached any significance to the fact that the boy had an erection. As to the allegation that the appellant smacked the boy’s penis, while there was undoubtedly an issue of fact to be resolved, even if the smacking occurred it did not automatically follow that it took place as an expression of sexual excitement rather than boyish stupidity or inappropriate discipline. These, in our view, are issues to which the expert evidence could, depending upon the jury’s view, have been significant. We agree with the direction given by Judge Sheridan to the Aylesbury jury that the diagnosis of Asperger’s syndrome was relevant to the questions: (1) what the appellant did and (2) with what intention he did it. 32. Secondly, as to count 12, the fact that the appellant’s finger rubbed against ZB’s anus, which is the conclusion the jury must have reached, was not outside the range of activity of which the appellant was accused in respect of other complainants. It is not possible to determine what it was, if anything, in ZB’s or the appellant’s evidence, that may have convinced the jury that the touching in ZB’s case was sexually motivated. For this reason, we cannot exclude the possibility that, had the jury been aware of the admitted features of the appellant’s Asperger’s, they would have reached a different conclusion, either as to the nature of the act or as to its purpose. Further, there was, in our view, no marked distinction between the allegation made in count 11 and those made in respect of other boys subjected to the same treatment. We accept that the jury’s conclusion upon count 12, however reached, probably educated their view of sexual motivation relevant to count 11. 33. Thirdly, we have noted the tendency of the appellant, during his evidence before the Reading jury, to pick arguments with the prosecutor over comparatively trivial detail, while failing, unless re-directed, to confront the underlying and critical question (paragraph 21 above). In our opinion, the expert evidence would have been of value to the jury in determining whether, on the one hand, the appellant was evading the question or, on the other, that he was, as a result of his unusual traits, reluctant to be deflected from his pre-occupation with matters of detail. We have noted also (at paragraph 24) the questionable explanation given by the appellant for his internet search. Both in assessing the content of his evidence and the manner in which it was delivered, it seems to us that the expert evidence would have been informative. We have given full consideration to Mr Price’s argument that during the Aylesbury trial the appellant demonstrated himself to be a calculating witness, quite capable of trimming his evidence to suit the case then being presented to the jury. However, even if Mr Price is right, and we are not sure that he is, we cannot conclude that his criticisms of the appellant’s evidence establish that he was undoubtedly lying to the Reading jury about the lack of sexual motivation for his actions towards the complainants SF and ZB. Conclusion 34. Notwithstanding that we are un-persuaded that the acquittal of the appellant in 2012 alone renders his convictions in 2007 unsafe, we have concluded that the expert evidence upon which the appellant relied in 2012 was both relevant and of some probative importance to the issues considered by the jury in Reading in 2007. The jury in the 2007 trial was very much concerned with the issue of interpretation of the appellant’s alleged conduct, partly admitted and partly denied. It was to that issue that the expert evidence was primarily, although not exclusively, relevant. We cannot conclude that the decisions made by the jury in 2007 would undoubtedly have survived their consideration of the new evidence admitted in the appeal under section 23 of the Criminal Appeal Act 1968 . For this reason we take the view that the verdicts were unsafe and must be quashed. Mr Price QC informed the court that the respondent had given consideration to the question whether, in the event of a successful appeal, it was in the public interest for a re-trial to take place, and we were informed that no application for re-trial would be made to the court.

2014_05_02-3412.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/836/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/836

fe47c90f70efd6c877c978d6aa9c2c619ea5dd6b1f2586ff0fdd8bc1595f6766

[2006] EWCA Crim 2983

EWCA_Crim_2983

crown_court

No: 2005/3497/D3 Neutral Citation Number: [2006] EWCA Crim 2983 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 9 November 2006 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE HOLMAN MR JUSTICE HODGE - - - - - - - R E G I N A -v- PATRICK MICHAEL NOLAN - - - - - - - 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 883

No: 2005/3497/D3 Neutral Citation Number: [2006] EWCA Crim 2983 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 9 November 2006 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE HOLMAN MR JUSTICE HODGE - - - - - - - R E G I N A -v- PATRICK MICHAEL NOLAN - - - - - - - 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 JOYCE QC appeared on behalf of the APPELLANT MR B HOULDER QC and MR G PATTERSON appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE TUCKEY: On 27th May 1982 in the Nottingham Crown Court before Lawson J and a jury, after a seven day trial, the appellant, Patrick Michael Nolan, now aged 44, was convicted of murder and sentenced to life imprisonment. On 23rd March 1984 his appeal against conviction was dismissed by this court, presided over by Lord Lane CJ. He now appeals against conviction upon a Reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 on the grounds that in the light of current standards there are reasons to question the admissibility of the appellant's confession and that new expert evidence casts doubt on the reliability of that confession. The Reference also refers to two cases which it says raise doubts about the interviewing practices of officers from the Nottinghamshire Police at the time. 2. On 23rd December 1980, the 64-year-old victim was found dead in his bed in the house where he lived alone in Nottingham. At post mortem the pathologist found that he had sustained seven to ten blows of moderate force to the side of his head with a weapon which caused his skull to cave in. He had probably been hit whilst he was asleep some time between the 18th and the early hours of 22nd December. There were no signs of a struggle. The weapon used could have been a hammer or a spanner. The house was full of objects of various kinds, but there were no signs of disturbance. The curtains of the house had been drawn and so the intruder must have had some source of illumination to get about in the house without disturbing anything. Entry had probably been gained through a broken kitchen window at the back of the house. The deceased's bedroom was upstairs. There was evidence that he had been alive at lunchtime on 21st December, so it was likely that he was murdered that evening or in the early hours of the following morning. 3. The appellant admitted the murder in a written statement and to the police in a series of interviews in September 1981 when he was 19. This was the only evidence against him. At trial his counsel sought to exclude this evidence on the grounds that it was unreliable and inadmissible. It was argued that there had been breaches of the judge's rules, the appellant had been denied access to his solicitor, the admissions and statement had not been made voluntarily because the appellant had been harassed and oppressed by the police and his statements were at times contradictory and did not fit the known facts. After hearing the police officers on a voir dire, the judge ruled that the confessions were admissible. 4. The history of the interviews is set out at great length in the papers with which we have been provided. It is not necessary to refer to them at length but we will summarise their salient features. 5. In March 1981 the appellant had been one of 6,000 people questioned by police about this offence. By September 1981 he was in borstal for offences of burglary and theft. Acting on information received, the police interviewed him there about the offence and other matters on 16th September 1981. There were three interviews that day during which he denied the murder, although he said something about remembering the "old man at Christmas time". The following day, the appellant saw his solicitor at the borstal when he was advised not to answer questions without a solicitor being present. The solicitor telephoned one of the officers later that day and said that the appellant would decline to be interviewed without a solicitor. 6. On 18th September the appellant was arrested at the borstal on suspicion of murder and taken to the Canning Circus Police Station in Nottingham where he was interviewed four times over a period of just over three hours during the course of the day. His solicitor was in the police station that day but was not informed of the appellant's arrest or that he was being interviewed there. 7. The appellant started the interviews on the 18th with denials, but in the second interview he said that he did remember things but it was "all cloudy" and "comes back in bits and pieces". 8. During the third interview he made his first admission, saying: "Okay, I did do it. I killed him. It's like a dream, but I don't remember anything else." During the final interview that day he started by saying he had not done it, but then went on to say that he knew that he had done something horrible. He had seen blood on his jumper and jeans, and then: "... it was dark and I was pissed. He came from nowhere and shouted 'What the fuck are you doing in here?' He reared up at me and got hold of me." 9. The following day he was interviewed four times over a period of three hours and 40 minutes. In his first interview he started by saying: "I want to tell you something. I didn't do it. I never killed him. I was making it up." He did not know why he had admitted the offence the previous day, but he had been tired, and "I only said what I thought you wanted to hear." He had made up details to make his admission sound sense. At the beginning of the second interview he started by saying that he knew he had not done it, but after further questioning he began to disclose the details which were recorded later that day in the written statement under caution which he signed. The statement was as follows: "On the Sunday before last Christmas I had my dinner at the girlfriend's house and later on that evening I went home. I can't remember if my mam and dad were in but we'd got some drink in house ready for Christmas. I don't drink much usually but I decided to have some whisky and I got stoned drunk. About 1 o'clock I woke up still drunk, and decided to try and walk it off. I went out and walked and walked round Lenton and I remember nosing round a couple of cars and looking at houses but I can't remember which way I walked because I was so drunk. Then I wanted to relieve myself so I went in an alley and when I'd finished I went down the alley to some back yards. It was pretty dark from what I vividly remember. I had a look to see if there was a washing line for clothes, but there wasn't. Then I saw the kitchen window was open and one of the panes of glass was out. I decided to go for curiosity, so I opened the window further and wedged it. I did have a pair of gloves on because it was cold. I clambered in and stood on the sink. There was a lot of stuff about and I think I knocked something over which I think I put back. There was some plates or something in the sink and on the draining board. It was an old fashioned pot sink. I went into the living room and started looking around. There was a table with stuff on it and a cupboard. I went in the top right-hand drawer of the cupboard and found some paper money, all folded up at the back of the drawer. I didn't count it, I just put it in my pocket. Then I decided to have a look upstairs, but I picked up a spanner that was leaning against the wall in the corner of the fireplace. It was open-ended at one end and a ring spanner at the other. It was about 10 inches long and I only picked it up just in case there was anybody upstairs. I carried it in my right hand holding the ring spanner end. When I got upstairs I went into the front room and it was very dark. I started feeling my way around, still drunk, and all of a sudden a man reared up at me. I hadn't seen him till then and he said something like 'What the fuck are you doing?' and he tried to grab hold of me. I just lashed out with the spanner and I remember smacking him three times on his head. There may have been more but I remember three for definite. Then I got scared and ran. I thought he might be coming after me and I fell down some of the stairs in the house and ran out of the back door. I kept on running and fell twice more in the street. I went straight home and threw the spanner in the back yard and went to bed. When I woke up the next morning I thought I'd been dreaming but it was too vivid and I knew I'd done something awful. I looked at my jumper and saw there was blood on it. I put the jumper, and my shirt and trousers and plimsoles in a plastic bag and had to wear some of my brother's clothes. I'd got other clothes of my own anyway because I'd stolen two shirts and a pair of jeans from a washing line... Besides that I had no other clothes. I counted the money out and there was between £40 and £50 in ones, fives and tens. Later on I took the clothes I'd been wearing on the night up to Lynn's and burnt them in the dustbin and left them there. A couple of days later I found the spanner and I decided to get rid of it. I threw it, with the plimsoles into the canal leading onto the Trent. I can show you where. While I was in the house I knocked over a mirror on a dressing table downstairs. Lynn asked me on Christmas Eve whether I'd killed the man and that was the first time I realised I had. I thought it was a bad dream at first but it was too vivid and I'd give my life for his if only he could come back." When he was seen again after making this statement, the appellant said that he felt a lot better now that he had got this off his mind. When asked if the statement was true he said: "Yes, sir, but I'm sorry I can't remember everything. I was drunk you know and it's not a thing you like to remember". The appellant then went with the police to the canal and pointed out where he said he had thrown the spanner. The canal was later searched but nothing was found. 10. The next day, Sunday 20th September, the appellant was again interviewed three times over a period of two-and-a-half hours. At the beginning of the first interview he was asked whether he could remember any more about the incident and he said: "It wasn't me. I didn't do it. They won't find anything in the river. I never did it. Please let it not be me ... I don't want it to be me." However, he went on to say: "I know it was me, but I don't want it to be." Later in this and the following interview he repeated some of the things he had said in the statement. 11. So those were the interviews. The police evidence was that at no time during any of them did the appellant ask for a solicitor and they did not offer him one. He was charged with the offence on 17th November 1981 in the presence of his solicitor, and replied, "I didn't do it." He has maintained his innocence from then to this day. 12. The appellant gave evidence at trial. He accepted that he had made a number of the oral admissions and of course the statement but said that they were all lies. He had been abused and hit by one of the officers and his requests to be allowed a solicitor had been refused or ignored, although he knew of his right to have one and to make no comment in interview. He had felt oppressed and was pressurised into making admissions which he did only to get the police to leave him alone. The police had suggested to him that he should say he was drunk to explain why he could not give details of exactly what happened in the house. The police supplied many of the details which appear in the statement, including the fact that the kitchen window was broken, the presence of an old-fashioned sink and that the deceased's bedroom was upstairs. He had made up details of his own about taking the money from the cupboard because he was a burglar and had a similar cupboard at home. The police had told him that the deceased had been hit with a hammer and this gave him the idea of mentioning a spanner. 13. The interviews were not tape-recorded. There was an issue at trial about whether the officers' notes of the interviews were contemporaneous and complete. It seems to have been largely accepted that they were accurate as far as they went but incomplete in the sense that they did not include much of the questioning which the appellant claimed made him feel oppressed and pressurised him into making admissions. It was his evidence that he had not seen any contemporaneous notes being taken. 14. We do not think any valid criticism can be made of the judge's summing-up at the time. He reminded the jury of details of the admissions which did not fit the known facts. These included the appellant's account of stealing money from a cupboard which, for a number of reasons, seemed very unlikely, and the appellant's account of the deceased shouting at and struggling with him, which was entirely inconsistent with the pathologist's evidence. The judge also warned the jury that in high profile cases of this kind people do make confessions, sometimes detailed confessions, which are subsequently shown to be untrue and so they should approach the confession evidence with the greatest possible care. He directed them that unless they were satisfied that what the appellant had said to the police had been fully and accurately recorded, they should acquit. If they were satisfied of this, they should go on to consider whether the admissions were true or had only been made because the appellant was a victim of oppression. 15. The jury convicted the appellant unanimously after a four hour retirement and, as we have said, this court subsequently dismissed his appeal against conviction. 16. So why should there be any cause to doubt the safety of the appellant's conviction now? Put shortly, the case advanced on the appellant's behalf by Mr Joyce QC is that much has changed since 1983. Modern procedures are much better designed to minimise the risk of false confessions leading to convictions. Here there was real cause for concern because this young man was interviewed over several days without a solicitor, the notes of the interviews were not complete and the appellant was not asked to sign them as representing an accurate record of what was said. The Police and Criminal Evidence Act 1984 and the Code of Practice for the detention, treatment and questioning of persons by police officers made under that Act where designed to avoid such problems. Furthermore, since 1982 much research and learning had been devoted to the psychology of interrogation and the phenomenon of false confessions. Leading experts in this field, Professor Gudjonsson and Dr Craig McNulty, have considered this case and their reports, which we have admitted as new evidence, cast considerable doubt on the reliability of the appellant's confession. So, Mr Joyce argues, there must now be a real doubt about the reliability of the appellant's confession and so his conviction is unsafe and we should quash it. 17. Professor Gudjonsson is a forensic psychologist. He was asked by the Criminal Cases Review Commission to carry out a psychological evaluation of the appellant in order to assess the reliability of his confession. His relevant conclusions were as follows: "5... at the time of his arrest in 1981, Mr Nolan was functionally illiterate, having a reading age of seven years and nine months... And he appears to have seriously lacked confidence in his intellectual abilities (ie he viewed himself as 'thick'). In these respects Mr Nolan was psychologically vulnerable when interviewed by the police in 1981, and if currently interviewed under the Police and Criminal Evidence Act, a person with clear evidence of illiteracy would be entitled to the services of an Appropriate Adult, especially if having to sign a statement that he could not have satisfactorily read and understood. The presence of an Appropriate Adult and a solicitor do influence the dynamics of the police interview... 9. ... at the time of his interrogation Mr Nolan (a) was suffering from emotional problems, even if they did not amount to a mental illness, which also appear to be reflected in the content of the police statements where he seems highly emotional, impulsive and erratic; (b) could be easily manipulated by others (ie being gullible and naive); (c) did not cope well in stressful situations or with pressure; and (d) was of a compliant temperament. 13. Of concern is the fact that Mr Nolan was interviewed extensively over a period of three days without the presence of a solicitor. There is no reference in the police statements that he was advised of his right to a solicitor in accordance with the Judge's Rules. I am in no doubt that at the time Mr Nolan was very much in need of legal advice, contrary to the assertions of [prosecuting counsel] during his cross-examination of Mr Nolan. 14. The retractions on the mornings of the 19th and 20th September 1981 are important, because they show how Mr Nolan was trying hard each morning after confessing, not very effectively though, to reassert his claims of innocence. The most likely explanation is that he was confessing as a consequence of not being able to cope with the interrogative pressure and when feeling slightly stronger (eg after a night's rest) he immediately retracted the confession previously made. 15. I am concerned about the way in which the confession to the murder of Mr Carver emerged and was described (ie like a dream and 'vision'). This combined with the length of detention, the number of interviews conducted, the absence of independent salient special knowledge about the murder, some wrong and bizarre details, Mr Nolan's probable psychological vulnerabilities at the time, and absence of a solicitor, raise serious concerns about the reliability of the confession he made to the police between 18th and 20th September 1981." 18. Dr McNulty, who is a consultant psychologist, was also asked to carry out an assessment of the appellant and to comment on Professor Gudjonsson's findings for the Crown Prosecution Service. In his report he noted that 25 per cent of the total interview time was unaccounted for in the officers' handwritten notes which made it impossible to verify what was said or done during those times. He also noted that at least two other people had confessed to the murder. He concluded that the appellant's overall profile was consistent with that described by Professor Gudjonsson and consistent with that of a person who may be susceptible to making false confession when placed under interrogative pressure. He ended his report by saying: "14.8. My overall opinion on the evidence that I have seen in relation to this case is that there is a strong possibility that Mr Nolan, as a 19 year old man, may have succumbed to pressure in interview and made a false confession to the police. 14.9 When considering Mr Nolan's response to the police interview techniques it may be important to take into account that up until the age of approximately 15 years Mr Nolan had been regularly beaten by his father. His experience of domestic violence may have introduced an abnormally high level of fear and anxiety about physical threat or harm. It is possible that this may have contributed to his perception of the police during interview, possibly causing an additional source of psychological stress and further incentive to escape from the interview situation by making a false confession." 19. We do not think we need refer to the two cases which involved the Nottinghamshire Police. They are referred to in the Reference but Mr Joyce helpfully said this morning that he did not rely on them for the purposes of his argument. For the record, however, they are Cleary (unreported)) 3rd May 1994 and Richardson [2004] EWCA Crim. 1784. They are decisions on their own different facts and do not, we think, help to decide this appeal. With one exception, they did not involve the same officers as those involved in our case. No assumption can or should be made that all officers in a particular force behave in the same way - see R v Edwards (1991) 93 Cr.App.R 48. 20. Our only task is to consider whether this conviction, 24 years ago, is safe judged against modern standards of fairness and the new evidence which we have admitted - see R v Blackburn [2005] EWCA Crim. 1349. 21. The prosecution, now represented by Mr Bruce Houlder QC and Mr Patterson, have taken a most helpful and responsible position in responding to the appeal. In a very full and fair skeleton argument they have set out all the relevant facts and made every point which can be made in support of upholding the conviction. They conclude their written submissions by saying: "... the Respondent recognises that the Court is likely to consider that the evidence of Professor Gudjonsson raises real questions as to the safety of this conviction. The Respondent has been unable to find any substantial evidence which detracts from the opinion of Dr Gudjonsson but will assist the court in any way either in cross-examination, or in argument, in relation to those aspects of the evidence which might have compelled the view the jury clearly took and which the Court may wish to examine further." 22. We were grateful for this offer of assistance. It did not seem to us that cross-examination of Dr Gudjonsson would assist, for the simple reason that there is no issue about what he says. As we have said, all points which can be made are set out in the skeleton argument. We have considered them and did not feel it necessary to call on Mr Houlder to elaborate them further for us today. 23. As has been said in other cases of this kind, the courts are more aware today than they were 20 or 30 years ago of the risk of false confession. The procedural requirements introduced by the Police and Criminal Evidence Act were necessary to protect the vulnerable. Expert evidence is often needed to identify those who are vulnerable and assess the reliability of any confession which they make. 24. But even judged by 1982 standards this was a worrying case. Proof of murder depended entirely upon the confession of the 19-year-old illiterate appellant, made in the course of 9 hours of interviews over three days, without a solicitor being present. These interviews were not fully recorded and in them the appellant made, and then more than once retracted, admissions which included things which were obviously untrue. 25. However, judged by modern standards and in the light of the new evidence, we have no hesitation in saying that this conviction is unsafe. By modern standards the interviews were unfair. The Police and Criminal Evidence Act Codes of Practice require that a detained person is advised of his right to consult with a solicitor on arrival at a police station and his right to free legal advice immediately before any interview. Any interview must now be fully recorded. In 1982 the officers' notes of the interviews should have been offered to the appellant for signature. 26. But even without these safeguards, if the jury had heard expert evidence of the kind we have admitted, it would have been bound to affect their consideration of the reliability of the appellant's confession. At the very least, applying the Pendleton test we cannot be sure that they would have convicted if they had heard such evidence. Although the judge gave what we think was, at the time, a perfectly adequate warning about the dangers of false confessions, if expert evidence had been called his warning would inevitably have been stronger, based as it then would have been on cogent expert medical opinion. 27. For these reasons we think the appellant's conviction must be quashed.

2006_11_09-962.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2983/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2983

8b2c5935d16a30ba123af641fa195e51a6e639a8fd413209cef372e7c2e76a5b

[2010] EWCA Crim 1781

EWCA_Crim_1781

martial_court

Neutral Citation Number: [2010] EWCA Crim 1781 Case No: 201002596 D5 IN THE COURTS MARTIAL APPEAL COURT Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 29th June 2010 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE MADDISON MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - R E G I N A v MAGNUS TOINTON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet

Neutral Citation Number: [2010] EWCA Crim 1781 Case No: 201002596 D5 IN THE COURTS MARTIAL APPEAL COURT Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 29th June 2010 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE MADDISON MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - R E G I N A v MAGNUS TOINTON - - - - - - - - - - - - - - - - - - - - - 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 B Walker-Nolan appeared on behalf of the Appellant Brigadier P D McEvoy appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: This is an application for leave to appeal against sentences imposed on the applicant at a Court Martial hearing. On 14th April 2010 at the Military Court Centre in Colchester before Judge Hunter, Vice Judge Advocate General, the applicant pleaded guilty to desertion, count 1, and being absent without leave, count 2. He was sentenced to dismissal and a total of 15 months' imprisonment; the individual sentences being 15 months' imprisonment and dismissal on count 1 and two months' imprisonment concurrent on count 2. 2. The applicant is now aged 21. He was born on 14th December 1988. He enlisted with the army on 7th September 2008. On 16th April 2009 he was deployed to Afghanistan. On 10th September 2009, i.e. after approximately five months' service on that tour, he qualified for rest and recuperation. He received verbal and written instructions to return to Afghanistan on a flight due to leave Brize Norton on 23rd September 2009. He failed to turn up for the flight. He was arrested on 10th October 2009 by the civilian police for an unconnected matter. His period of absence therefore was 18 days. Because his intention was to avoid operational duty overseas, his behaviour constituted desertion and formed the subject of count 1. 3. He was returned to his unit at barracks in Northern Ireland, where he was informed that he was going to work with LOOB (left out of battle soldiers). On 16th October 2009 he went home for the weekend but failed to attend the early morning muster parade on 20th October. He then remained absent without leave until he was again apprehended by civilian police. On this occasion he was absent without leave from his unit for 100 days. This constituted going absent without leave rather than desertion because he had not been redeployed to operational duties. This conduct formed the subject of count 2. 4. The grounds of appeal are that the sentence of 15 months' imprisonment was manifestly excessive in three respects. First, insufficient consideration was given to his plea of guilty, his youth and inexperience. Secondly, the court failed to have proper regard to the sentencing guidelines which applied at the relevant time. Thirdly, the court purported to pass a deterrent sentence due to the prevalence of the offence, although no statistics or other evidence as to prevalence had been adduced before the court. In argument Mr Walker-Nolan made an additional point, that in what he submitted was an entirely comparable case of desertion by a private in the same battalion on the same tour of duty, the sentence initially imposed was two years' imprisonment but that was reduced on review to 12 months' imprisonment. This, he submitted, demonstrated what was the appropriate sentencing level, and he prayed that case in aid in support of his submissions that the sentence passed on the applicant was excessive. 5. We have been referred in the respondent's helpful skeleton argument to a line of authorities in which the court has considered important general factors to have in mind on an appeal of this kind. The cases to which we have been referred are Love (unreported) 11th November 1997; Pattinson (unreported) 25th January 2009; McKendry [2001] EWCA Crim 578 ; Martin [2007] EWCA Crim 3377 ; and Glenton [2010] EWCA Crim 930 . 6. Desertion is a military offence with no civilian equivalent. The sentencing considerations involve factors peculiar to the armed services. A Court Martial is a specialist tribunal. Sentencing is undertaken by the Judge Advocate sitting with non-legal service members of the court. The lay members bring their service background and knowledge of disciplinary issues to bear on the subject. The Judge Advocate will be experienced in sentencing practice in civilian courts. He will have attended Judicial Studies Board training seminars for judges and recorders of the Crown Court. The Judge Advocate will therefore be knowledgeable in general principles of sentencing, as well as general sentencing practices and policies of the armed services. The sentencing panel therefore has a far greater expertise in assessing the gravity and significance of an offence of desertion than this court, and it will have a feel for the case which this court cannot claim to have. These are factors which this court must bear in mind when reviewing any sentence of a Court Martial. This principle must not be taken to the point of emasculating this court's jurisdiction. This court has a responsibility, if it considers a sentence to be wrong, for correcting it, but in determining whether a sentence is wrong it must give proper weight to the factors to which we have referred. 7. In the present case the Judge Advocate indicated in the course of the applicant's plea in mitigation that he accepted that the relevant sentencing guidelines to be applied by the tribunal were those in place at the time of the commission of the offences, rather than later guidelines which had been introduced between the date of the offences and the date of the Court Martial. He added that there was, however, a distinction to be drawn between guidelines set out by the Sentencing Guidelines Council, to which the court has a statutory duty to pay proper regard and from which it ought therefore not to depart without stating its reasons, and service guidelines, which are issued by the Judge Advocate General but do not have any statutory force. 8. The reference to the guidelines in force at the time of the offence was relevant in the present case for this reason. At the time of the offending the relevant document entitled "Sentencing in Courts Martial: A Short Guide" provided these guidelines: " Desertion entry points. Dismissal + 12 months imprisonment. Where desertion includes the element of absence to avoid active service overseas, there is a public interest as well as a Service interest, because the public are entitled to expect their Service personnel to undertake operations for which they are trained and which support the Government's foreign policy. 12 months detention - without dismissal where there is no element of avoiding active service..." 9. From 31st October 2009 those guidelines were replaced by guidelines which suggest a far stiffer penalty for desertion. The new guidelines emphasise as follows at paragraph 6.6.7: "Desertion is a very serious offence, particularly during periods of active service where the offender's conduct could lead to a unit being short of essential manpower, and ultimately unnecessary loss of life. The maximum sentence for desertion with intent to avoid active service is imprisonment for life and all sentences for this offence should reflect the abhorrence felt by those let down by the deserter. There is also a public interest as well as a Service interest, because the public are entitled to expect the Services to undertake operations for which they are trained and which support Government policy." Thus far the guidelines were stating nothing other than that which would have been well understood by Courts Martial but had the benefit of being set out in clear English so that all might appreciate the seriousness of such offending. The new guidelines suggest an entry point for desertion including the element of absence to avoid active service of three years' imprisonment, with a range of one year to four years' imprisonment, plus dismissal. 10. In passing sentence, the Judge Advocate stated that desertion of this type is a very serious offence for two reasons. The principal reason is that when a soldier deserts from an operational tour it places a greater burden and a greater danger on his comrades. The second reason is that it lessens the operational effectiveness of his unit. For those reasons the matter is so serious that it can only be marked with imprisonment and dismissal. He said that in calculating the period of imprisonment the tribunal took into account both aggravating and mitigating factors. Among the latter they took into account the applicant's plea of guilty; although in the circumstances of the evidence against him he really had no choice but to plead guilty, nevertheless they took it into account. They also took account of the fact that he was a recently joined soldier and appeared to be unsuited to military service. They suspected, and took into account in his favour, that he was probably subjected to family influence to join the army. The tribunal took into account the possibility that his unit might have done more to assist him. The tribunal also took into account the fact that he had completed five months of an operational tour and they were content to accept that he did not know that his conduct amounted to the serious offence of desertion. The Judge Advocate also observed: "This is an offence of increasing prevalence and it is our duty to deter others from committing this offence." 11. In reviewing the sentence we must have regard to the overall picture. As to the particular complaints made by the applicant, it is plain that the tribunal did have regard to the personal mitigation relied upon. It is also, in our judgment, plain that the tribunal did have regard to the sentencing guidelines at the time of the offending. The Judge Advocate said that they did and we see no reason to suppose otherwise. Had the tribunal been applying the later guidelines, the sentence would have been expected to be considerably higher. The fact that the total sentence passed for the two offences amounted to 15 months' imprisonment cannot, in our judgment, be said to afford ground for supposing that the tribunal disregarded the sentencing guidelines which proposed an entry point for an offence of desertion of 12 months' imprisonment. 12. As to the deterrent element, it was submitted that a tribunal ought not to depart from general guidelines on grounds of a need for deterrence based on some general reference to prevalence; it must have more specific and detailed evidence for doing so. If guidelines are too low they should be changed generally rather than departed from in an individual case. If guidelines are to be departed from in an individual case, it should be because the circumstances of that particular case make it right to do so. 13. We do not think that it is right to compare what the tribunal did in the present case with, for example, the case of an individual judge or recorder in a civilian court stating that he or she intended to impose a sentence materially above sentencing guidelines because of a general conclusion that the offence had become too prevalent in the relevant locality. If an individual court has in mind to take such a course, there needs to be a much clearer evidential basis for doing so. However, in this case we are concerned with a sentence passed by a specialist tribunal which can properly be assumed to be well familiar with the stresses and strains caused operationally in the relevant theatre by offences of this kind. Moreover, as we have already said, we do not detect in this case a departure from the sentencing guidelines. The tribunal had to take into account a variety of matters and reached an overall sentence for the two offences of 15 months' imprisonment. 14. Those observations serve also to distinguish the other case on which the applicant relied of a soldier who deserted from the same battalion on the same tour of duty. That soldier appeared before the court on a single charge. 15. In our judgment, it is impossible to say that the total sentence passed by this tribunal was wrong in principle or manifestly excessive. Accordingly, this application for leave to appeal against sentence is refused.

2010_06_29-2431.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1781/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1781

ed86b0227c8f9300efa21c9a02ca29651335ccea05f71eb4572c5b3c44c2c634

[2015] EWCA Crim 714

EWCA_Crim_714

crown_court

Neutral Citation Number: [2015] EWCA Crim 714 Case No: 201205532 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM KINGSTON-UPON-THAMES CROWN COURT Mr Justice Calvert-Smith T20070664 Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/04/2015 Before : LORD HUGHES MR JUSTICE WILKIE and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : MANFO KWAKO ASIEDU Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2015] EWCA Crim 714 Case No: 201205532 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM KINGSTON-UPON-THAMES CROWN COURT Mr Justice Calvert-Smith T20070664 Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/04/2015 Before : LORD HUGHES MR JUSTICE WILKIE and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : MANFO KWAKO ASIEDU Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Stephen Kamlish QC, Ali Naseem Bajwa QC, Di Middleton and Catherine Oborne (instructed by Irvine Thanvi Natas Solicitors ) for the Appellant Max Hill QC and Alison Morgan (instructed by The Crown Prosecution Service ) for the Respondent Hearing dates: 9th and 10th February 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Hughes: 1. The applicant renews his application for leave to appeal against his conviction for conspiracy to cause explosions likely to endanger life or to cause serious injury to property, after refusal by the single judge. He had pleaded guilty to this offence at his re-trial in November 2007. He had previously been tried together with others on an indictment charging both conspiracy to murder and this offence, arising from the same alleged conduct. At the end of a long trial in July 2007, the jury had convicted others, but had been unable to agree about this applicant. Upon his plea of guilty to this offence at the outset of the re-trial, the Crown did not ask for a re-trial of the graver alternative count, nor of count four which charged possession of an explosive substance with intent. His contention that his conviction is unsafe is grounded upon complaints of lack of proper disclosure by the Crown of material relating to scientific evidence, and associated criticism of the evidence of one of the scientists called by the Crown at the effective (first) trial. 2. The charges against this applicant and his five co-accused arose out of the taking of home-made bombs onto the London Transport system on 21 July 2005. That was two weeks after terrorist suicide bombers had exploded bombs on underground trains and a bus on 7 th July, causing some fifty-two deaths. The case against the applicant and his co-accused was that they had similarly taken home-made bombs onto underground trains and buses. The bombs were contained in rucksacks, and were triggered by battery-driven electric devices which fired home-made detonators when an electric circuit was completed by the wearer. On 21 July there were five such bombs, taken separately by five of the six defendants from a common starting point in west London onto either trains or buses. Four of those devices were activated by four of the applicant’s co-accused, called Omar, Osman, Mohammed and Ibrahim. Omar activated his on a Victoria Line train in the tunnel approaching Warren Street Station. Osman activated his on a train near to Shepherd’s Bush station. Mohammed activated his device on a northern line train between Stockwell and the Oval. Ibrahim activated his on a number 26 bus in Hackney. In each of these cases, the electric circuit when completed successfully fired the home-made detonator, but the detonator did not set off the bulk charge. There was a bang, and some resultant confusion, but no major explosion. The fifth device was carried by Asiedu. He abandoned it in some parkland in Little Wormwood Scrubs. 3. The Crown case was that this was a plot to explode bombs which would kill. The devices, which were recovered, were all of the same construction. The bulk charge (which failed to explode) was made of domestic ingredients, flour and hydrogen peroxide. The detonators were all the same, comprising high explosive primers made from household materials publicly available. The electric firing devices were again the same and similarly home-made. Packed around the bulk charges was shrapnel, in the form of bolts, screws, washers or tacks, such as would increase the injuries in the event of explosion. Because in the event the bulk charges did not explode, the carriers were able initially to escape in the confusion, but some could be seen, undisguised, on CCTV and one had left clear evidence of his identity in his rucksack. They were arrested one by one in Birmingham, London and Rome. The police rapidly identified two London flats as having been used by them, one at Curtis House in north London and one in the west at Dalgarno Gardens near Ladbroke Grove. 4. Asiedu when arrested gave long police interviews. What he said was very largely untruthful; he lied about who he was and about knowing the other defendants; he said he knew nothing at all about the bombs; he denied having anything to do with buying the hydrogen peroxide. As to the day when the bombs were set off, he asserted a false alibi. A police officer had to go to Ghana to establish the truth about his identity. 5. In the weeks and months after the arrests, the police were able to assemble clear evidence that Asiedu had been instrumental in the purchase of some 442 litres of hydrogen peroxide from several different suppliers, lying to the sellers about the purpose for which it was required. He was shown to have asked for 70% concentration if available, but ordinarily the product is sold only at 18%, and that is what he had been able to get. There was then evidence from Curtis House that the peroxide had been cooked in the kitchen, and concentrated from this 18% solution. There were rotas for this cooking duty, and notes of the specific gravity achieved, which indicated a strength in the region of 70%. There was much other evidence uncovered connected with the construction of the bombs by the defendants. 6. Sometime towards the end of 2006, over a year after the event and when the trial was imminent, the first four defendants (but not Asiedu) served amended defence case statements. In them, they asserted for the first time that they had indeed made the bombs, but that they had always intended that they should not explode; rather they were hoaxes intended to frighten or to make a political statement about UK actions in Iraq. The trial had to be delayed for this hoax assertion to be investigated. Much later, during the trial, the other defendants, through Ibrahim, advanced a further assertion not previously contained in their defence statements, namely that they had concentrated the hydrogen peroxide to about 70%, but having done so, watered it down by adding an equal volume of water, thus reducing the strength to around 35%. It was their positive case that the bombs were constructed of a mixture of flour and hydrogen peroxide, in proportions of roughly 1:2. 7. At a late stage in the trial Asiedu went to some lengths to distance himself from the other defendants. Inconsistently with his previous stance, and with a letter which he had written to Ibrahim’s sister whilst awaiting trial saying that all the defendants were totally innocent, his case underwent a sea change after the Crown case was closed and Ibrahim had given evidence in chief. His case as put to Ibrahim in cross examination was that Ibrahim had, personally and via his solicitors, put pressure on him in prison to change his solicitor and to adopt the hoax defence. Consistently with his instructions, leading counsel roundly attacked the hoax assertion as absurd. By contrast, his defence, which he supported by evidence on oath, was that there had been a plan to make real bombs, but that he had learned of it only the night before they were deployed, and he was never a party to it. He had earlier bought the hydrogen peroxide innocently, believing that the others were using it for painting and decorating, or, later, that they were making cosmetics. Later Ibrahim had told him that the others were making “firecrackers”, but he was never party to such a plan. On the night before the bombs were detonated he was with the others in Dalgarno Gardens and realised for the first time that they were talking about a suicide bombing mission and expected him to take part. He was afraid to voice his disagreement because the others were now seen to be terrorists who would kill him, so he bided his time, and when once separated from them, abandoned his device in the park in Little Wormwood Scrubs. 8. After the jury disagreed in his case, but had convicted the first four defendants, Asiedu was re-tried some four months later. At the outset of his re-trial, having sought in open court information from the judge as to the range of likely sentence in such event, he pleaded guilty to the lesser alternative count of conspiracy to cause explosions likely to endanger life or to cause serious damage to property. The tendering of this plea of guilty followed detailed discussions between his lawyers and those acting for the Crown. He asserts that the Crown initiated them, but it does not matter who did so; he was represented then, as now, by tenacious leading and junior counsel plus solicitors. Prior to tendering his plea, a detailed statement of the factual basis for it was prepared on his behalf, discussed with the Crown, and submitted to the judge so that a sentence indication might be given. It ran to three pages. In it he said (amongst other things) that: i) he had agreed in March 2005 to take part in making bombs by buying the hydrogen peroxide; he was reluctant but did as asked; he appreciated that any explosion of the bombs would be likely to endanger life and that he thus committed the offence charged in count 2 from March 2005; ii) at this time he was living at Curtis House with Omar, as he was for the majority, but not all, of the period from March to the deployment of the bombs in July; he had been aware of the cooking of the hydrogen peroxide in the kitchen; he had not personally taken part in this activity, but continued to buy the peroxide for the process; and iii) at Dalgarno Gardens overnight on 20/21 July he had learned of a planned suicide mission the next day; he had refused to be one of the suicide bombers but had helped to mix the materials to make one of the five bombs. 9. On 20 November 2007 Asiedu was sentenced to 33 years imprisonment for the offence to which he had pleaded guilty. An application to this court for leave to appeal that sentence was refused on 10 July 2008 (Sir Igor Judge P, Rafferty and Grigson JJ). Scientific evidence and disclosure 10. The deployment of these bombs took place just a fortnight after the fatal suicide attacks on the London transport system of 7th July had killed and injured a very large number of people. The use of home-made starch/peroxide bombs was new at the time, and expertise in such material was scarce. The Forensic Explosives Laboratory (“FEL”) could undertake some of the necessary reporting work, but it seems that it was not in a position to deal with analysis of the content of the devices. In consequence, Dr Black, who was an academic expert in isotopic analysis without experience of trial (forensic) work was instructed to undertake this analysis. The present application for leave to appeal is built entirely around the evidence of this expert. In due course his was by no means the only scientific evidence at the trial. Very important evidence was given by FEL scientists as to the potential of flour/peroxide mixtures of various recipes to explode and as to the manufacture and potency of the detonators. But Dr Black’s evidence was relied on by the Crown and was in parts challenged by the defendants other than Asiedu. In particular, his evidence refuted the re-dilution assertion when it appeared during the trial. 11. The particular issues which Dr Black was initially asked to address were these: i) the composition of the starch/peroxide residues recovered from the bombs; ii) the origin of the starch; iii) whether the bombs were made from a single mix or from a number of mixes made independently; iv) whether there was or was not scientific evidence that the bombs were prepared at Curtis House and/or Dalgarno Gardens; v) whether there was or was not scientific evidence of concentration of peroxide at either address. 12. Dr Black produced a first report in June 2006. He had proceeded by way of (1) isotopic analysis, (2) chemical analysis of trace elements, (3) microscopic examination, (4) Xray diffraction, and (5) Xray fluorescence. At the end of a substantial report, his stated summary of conclusions read, omitting inessential detail, as follows: “7.1 Isotopic analysis of the scene residues found on 21 July 2005 show them to be flour-hydrogen peroxide mixtures. 7.2 Isotopic analysis of all the scene residues and commercially available flour types shows the flour used in the devices was similar to control sample GL12, labelled chapatti flour, and the control FUDCO chapatti flour GDA 353. 7.3 X ray diffraction analysis of the scene residues also supports the isotopic analysis and shows the incorporation of inorganic components to the residues which are consistent with stabilisers from the hydrogen peroxide. 7.4 Lead isotopic analysis of all the scene residues show them to be identical to one another [and]…. to residues recovered from the bins at Curtis House and from Curtis House. 7.5 Trace element analysis of the scene residues shows clear links to cooking pans at Curtis House….. 7.6 Physical shapes and structures of …residue found [at] Curtis House show them [sic] to be identical to those from scene residues originating from Warren Street, No 26 bus, Shepherd’s Bush, the bins at Curtis House, The Oval and 58 Curtis House. 7.7 There is thus scientific evidence to suggest that the devices were prepared at Curtis House. 7.8 There is no scientific evidence to suggest that the devices were prepared at …Dalgarno Gardens. … 7.10 Analysis of the isotopic data for the hydrogen peroxide, scene residues and control flour materials suggests a mixture of between approximately 68-74% hydrogen peroxide was used at a strength between approximately 3 and 4 times the initial concentration (between 54-72%).” 13. This report was seen by forensic scientists working at the FEL who, whether or not directly concerned in the case, were concerned that some conclusions appeared to them to be unjustified. Within the service there was a system for such concerns to be made known to the Head of the Laboratory, and if appropriate via him to others, in order to avert any risk of a potential miscarriage of justice. The procedure set out in the laboratory quality manual (section 9 paragraph 3) shows that this is a system rightly taken seriously. Where anything emerges which might indicate that a past miscarriage of justice has occurred, its stated aim is to enable the information to reach, by one route or another, the Criminal Cases Review Commission. Where something emerges which might have the potential to cause a future miscarriage of justice, then its stated aim is to ensure that it is corrected and the correction provided to anyone outside the laboratory to whom uncorrected material has been given. Defence teams who have been given information which needs correction are, rightly, identified in the manual as examples of those in the latter situation. 14. It is now known that particular officers of the FEL prepared, first, a document beginning “Is Dr Black’s report fit for purpose?” (“the fit for purpose document”) and, second, draft comments on his report (“the draft comments document”) . The second was certainly sent in electronic copy to the principal forensic scientist dealing with this case, Mr Todd. It is also now clear that the gist of the concerns expressed in these documents was communicated orally (i) to Dr Black at a meeting with other scientists (including Mr Todd) on 13 November 2006, attended by two police officers and (ii) to counsel at a visit they made to the FEL and subsequently at a case conference, both on 22 November. As part of that conference there was a telephone conversation between Mr Hill QC (then first junior counsel for the Crown) and Dr Black, at which some queries arising from the expressed concerns were discussed. 15. The outcome of this was that Dr Black wrote two additional witness statements in December 2006, both duly served on all parties and forming to a large part the basis of his evidence in due course at the trial. The first was entitled an “amendment” to his original statement. It began by saying that “a number of errors occurred in the original report”, and offered his apology. It went on to re-work some paragraphs of his original report in a way which to an extent altered their import, including subparagraphs 7.2 and 7.10 of the conclusions which we have set out at paragraph 12 above. The second was a substantial addendum statement, setting out a good deal of further work and the conclusions which he drew from it. Thereafter the defendants instructed a scientific expert, Professor Michels, who met Dr Black on one or more occasions and discussed his conclusions with him and who in due course gave evidence at the trial, differing in some respects from him. Both addressed the late-appearing re-dilution assertion. 16. Although Dr Black thus corrected his first report, and added to it, what did not happen was the disclosure to the defence of either the Fit for Purpose document or the Draft Comments document. Both were, we are satisfied, clearly disclosable. We consider below, to the extent appropriate without re-hearing scientific evidence, what impact in the end any of the concerns might have had at the trial of the six defendants who included Asiedu. But whatever hindsight may now tell us about that question, those two documents plainly had at least the potential to be of assistance to the defence as possibly undermining a part of the Crown case, namely some, though by no means all, of Dr Black’s conclusions. As such, they fell to be disclosed to the defence. It is true of course that Dr Black’s amendment statement clearly stated that he acknowledged errors and was correcting them, so that the defence was not only on notice that he had made errors but also could see which conclusions he agreed involved error. But this did not obviate the disclosability of the two documents. It would be for the defence to examine, on its own terms, whether the corrections adequately met the criticisms, whether the final conclusions ought to be challenged or not, and whether or not Dr Black’s general standing as an expert witness ought to be challenged. Moreover, the amendment statement, whilst it corrected the first, said nothing about the errors having been drawn to Dr Black’s attention by others and to that extent did not provide the defence with the same potential ammunition that ought to have been available to them. And since Dr Black adhered to some conclusions about which the FEL critics had expressed doubt, there was in those cases no correction and therefore also neither acknowledgement nor disclosure of peer criticism. 17. The factual position which we have been able to set out above has, even now, emerged only piece by piece. In January 2013, in response to the present application for leave to appeal and to grounds which raised the issue of the FEL concerns, the Crown properly traced and disclosed the key documents, namely the Fit for Purpose document and the Draft Comments document (the two principal documents) together with the notes of the meeting on 13 November 2006. The case conference of 22 November, however, emerged only at the two day hearing before us some two years later in February 2015. That led leading counsel for the applicant understandably to seek further assurance that full disclosure had now been made, and indeed he went on to raise a query as to the good faith of those representing the Crown. He asked us to order an independent enquiry into the disclosure history by fresh counsel. We concluded that that was not called for, but in response to his concerns we ordered, after the hearing before us was otherwise completed, a further disclosure investigation and specifically required to know whether either of the two principal documents had been seen by counsel, solicitors, or the police officers present at the case conference. We have been told that the necessary records have been exhumed from storage and inspected by their authors. There is no sign that any of those persons saw either of the two documents and none has any recollection of doing so. There is no reason to doubt this information, nor the good faith of those who have provided it. The case conference was not only, or even principally, about Dr Black. The notes of it do not suggest that the relevant discussion was conducted over a document, rather than being initiated by an oral report of topics of concern. Its outcome was that further work was to be done, and that two further statements would be made, one a correction and the other an update or addendum. 18. That does not alter the facts that (a) the two principal documents were not identified as apt for disclosure pre-trial, as plainly they should have been, and (b) the discussion at the case conference of part of material which derived from them was produced only at the hearing before us, eight years or so after the trial, and only after specific request for its disclosure. We are satisfied that the first was a clear failure of the duty of disclosure. If disclosure of the two principal documents and of the gist of the 13 November discussion had been made, as it should have been, there would probably have been no occasion for disclosure of the telephone conversation at the case conference. As it is, the late emergence of the latter has lent some limited colour to the applicant’s assertion that there has been a deliberate cover-up. Having considered detailed additional written submissions made after the hearing on behalf of the applicant, we see no evidence of this. We are, however, on an application for leave to appeal against conviction, concerned solely with the safety of the conviction. We therefore need in any event to consider the relevance of non-disclosure, of whatever kind, to that issue. That involves considering (i) the applicant’s plea of guilty and (ii) the significance of the undisclosed material. We have heard argument about both matters. The plea of guilty 19. A defendant who pleads guilty is making a formal admission in open court that he is guilty of the offence. He may of course by a written basis of plea limit his admissions to only some of the facts alleged by the Crown, so long as he is admitting facts which constitute the offence, and Asiedu did so here. But ordinarily, once he has admitted such facts by an unambiguous and deliberately intended plea of guilty, there cannot then be an appeal against his conviction, for the simple reason that there is nothing unsafe about a conviction based on the defendant’s own voluntary confession in open court. A defendant will not normally be permitted in this court to say that he has changed his mind and now wishes to deny what he has previously thus admitted in the Crown Court. 20. It does not follow that a plea of guilty is always a bar to the quashing by this court of a conviction. Leaving aside equivocal or unintended pleas (which do not concern us here), there are two principal cases in which it is not. The first is where the plea of guilty was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put before the jury. So, if the judge rules as a matter of law that on the defendant’s own case, that is on agreed or assumed facts, the offence has been committed, there is no arguable defence which the defendant can put before the jury. In that situation he can plead guilty and challenge the adverse ruling by appeal to this court. If the ruling is adjudged to have been wrong, the conviction is likely to be quashed. Contrast the situation where an adverse ruling at the trial (for example as to the admissibility of evidence) renders the defence being advanced more difficult, perhaps dramatically so. There, the ruling does not leave the defendant no case to advance to the jury. He remains able, despite the evidence against him, to advance his defence and, if convicted, to challenge the judicial ruling as to admissibility by way of appeal. If he chooses to plead guilty, he will be admitting the facts which constitute the offence and it will be too late to mount an appeal to this court. For this important distinction see R v Chalkley & Jeffries [1997] EWCA Crim 3416; [1998] 2 Cr App R 79, which on this point is clear law. That was a case in which the defendants had failed to persuade the trial judge to exclude evidence pursuant to section 78 of the Police and Criminal Evidence Act 1984, and, faced with evidence which they judged to be difficult to overcome, had pleaded guilty, indeed in explicit terms which made it clear that they now admitted the conspiracy to rob which was charged. Giving the court’s judgment, Auld LJ said this at 94D: “Thus, a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstance would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged.” 21. The second situation in which a plea of guilty will not prevent an appeal is where even if on the admitted or assumed facts the defendant was guilty, there was a legal obstacle to his being tried for the offence. That will be true in those cases, rare as they are, where his prosecution would be stayed on the grounds that it is offensive to justice to bring him to trial. Such cases are generally described, conveniently if not entirely accurately, as cases of ‘abuse of process’. The classical example of such is R v Horseferry Road Magistrates’ Court ex p Bennett [1994] AC 42 and later [1995] 1 Cr App R 147, where the defendant had been charged in England after being illegally routed here from a foreign country with which there was no extradition treaty. His committal for trial was quashed and the prosecution was stayed. In the subsequent similar case of Mullen [1999] 2 Cr App R 143, where the prosecution had proceeded to conviction after trial, that conviction was quashed. As this court there said, “. . . for a conviction to be safe, it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe.” By parity of reasoning, if the trial process should never have taken place because it is offensive to justice, a conviction upon a plea of guilty is as unsafe as one following trial. 22. Chalkley was not such a case, and the court there went too far in offering, obiter, the opinion that a plea of guilty would prevent an appeal even in such circumstances. That dictum was inconsistent with the reasoning in the later case of Mullen (although there had been no plea of guilty there) and it was corrected in Togher [2000] EWCA Crim 111; [2001] 1 Cr App R 457 . There this court referred to the ratio of Chalkley as set out above at paragraph 20 and said: “We would not wish to question this passage in the judgment of Auld LJ. However, it cannot be applied to the situation which exists here, where the defendants were unaware of the material matters alleged to amount to an abuse of process. If they could establish an abuse, then this Court would give very serious consideration to whether justice required the conviction to be set aside. We would, however, emphasise that the circumstances where it can be said that the proceedings constitute an abuse of process are closely confined. The reason for this is that the majority of improprieties in connection with bringing proceedings can be satisfactorily dealt with by the court exercising its power of control over the proceedings. It has to be a situation where it would be inconsistent with the due administration of justice to allow the pleas of guilty to stand.” And the court had earlier made clear that: “Certainly, if it would be right to stop a prosecution on the basis that it was an abuse of process, this Court would be most unlikely to conclude that if there was a conviction despite this fact, the conviction should not be set aside.” 23. That position was further endorsed by this court in the later case of Early [2002] EWCA Crim 1904 ; [2003] 1 Cr App R 19 . The case arose from the notorious London City Bond investigations into evasion of duty upon bonded goods. The appellants had all pleaded guilty, in several cases after applications for a stay on grounds of abuse of process had failed. Those applications had been made on the basis of entrapment which is, of course, no defence but may be grounds for a stay: see R v Latif [1996] UKHL 16 ; [1996] 1 WLR 104 . Subsequently it transpired that a key manager at the bonded warehouse, who was a Crown witness, had been a participating informer, that he had lied on oath about this and other matters to the knowledge of the investigators who had not revealed the lie, that the judge had been given false information about his status, and that that the investigators had facilitated offences, in other words that there had indeed been entrapment. 24. This court approached the appeals in accordance with Mullen and Togher . Rose LJ first made some general remarks as to the gravity of perjury in PII or abuse of process hearings. He said this: “Judges can only make decisions and counsel can only act and advise on the basis of the information with which they are provided. The integrity of our system of criminal trial depends on judges being able to rely on what they are told by counsel and on counsel being able to rely on what they are told by each other. This is particularly crucial in relation to disclosure and Pll hearings. Accordingly, Mr Gompertz QC, rightly, accepted that when defence counsel advised Rahul, Nilam Patel and Pearcy as to plea, they were entitled to assume that full and proper disclosure had already been made. He also rightly accepted that a defendant who pleaded guilty at an early stage should not, if adequate disclosure had not by then been made, be in a worse position than a defendant who, as the consequence of an argument to stay proceedings as an abuse, benefited from further orders for disclosure culminating in the abandonment of proceedings against him. Furthermore, in our judgment, if, in the course of a PII hearing or an abuse argument, whether on the voir dire or otherwise, prosecution witnesses lie in evidence to the judge, it is to be expected that, if the judge knows of this, or this court subsequently learns of it, an extremely serious view will be taken. It is likely that the prosecution case will be regarded as tainted beyond redemption, however strong the evidence against the defendant may otherwise be. Such an approach is consistent with the view expressed by this court, in Edwards [1996] 2 CAR 345 @ 350F where, in a different context, Beldam LJ referred to the suspicion of perjury starting to infect the evidence and permeate other similar cases in which the witnesses are involved.” The ratio of the case appears from what follows immediately: “We approach the question of safety of these convictions, following pleas of guilty, in accordance with Mullen [1999] 2 Cr App R 143 as approved in Togher & others [2001] 1 Cr App R 457 , namely a conviction is generally unsafe if a defendant has been denied a fair trial. We bear in mind, in particular, three observations by Lord Woolf CJ in Togher. First, at paragraph 30, “if it would be right to stop a prosecution on the basis that it was an abuse of process, this court would be most unlikely to conclude that, if there was a conviction despite this fact, the conviction should not be set aside”. Secondly, at paragraph 33, “The circumstances where it can be said that the proceedings constitute an abuse of process are closely confined. It has to be a situation where it would be inconsistent with the due administration of justice to allow the pleas of guilty to stand”. Thirdly, at paragraph 59, freely entered pleas of guilty will not be interfered with by this court unless the prosecution’s misconduct is of a category which justifies this. A plea of guilty is binding unless the defendant was ignorant of evidence going to innocence or guilt. Ignorance of material which goes merely to credibility of a prosecution witness does not justify reopening a plea of guilty.” 25. It is clear from the sentences which directly follow the reference to a defendant being denied a fair trial that Rose LJ was, consistently with principle, in this context referring to the case of abuse of process such as renders it unfair to try the defendant at all. Entrapment, if made out, can be an example of such unfairness. The court was clearly satisfied that the defendants who had pleaded guilty had been deprived of a stay on such grounds. 26. In the present case, the submission of Mr Kamlish QC for the applicant is that: i) the non-disclosure of the FEL documents was an abuse of process, moreover one committed in bad faith; ii) Dr Black committed perjury at least at one point in his evidence when asked to explain something which had been in his original report and was removed by the amendment in December; iii) had the non-disclosure been exposed before or during the trial the proceedings would have ended by order of the court (it seems by way of stay) and there would never have been a second trial or occasion for the applicant to plead guilty; iv) alternatively but for the non-disclosure the applicant might have been acquitted at the trial; v) the non-disclosure led to the applicant being misled by the Crown and to pleading guilty to a false case; vi) the applicant was deprived of any real choice but to plead guilty, and his plea was accordingly a nullity; and vii) in the circumstances, the plea was not a true confession to the offence. 27. Carefully presented as they are, these submissions are unarguable. Non-disclosure is not by itself an abuse of the process of the court. It is a failure of duty on the part of the prosecution as a whole. It may in some cases be serious. A conviction after trial may be unsafe if material was left undisclosed, especially (but not only) if it provided a defence; R v Barkshire [2011] EWCA Crim 1885 and R v Bard [2014] EWCA Crim 463 , cited to us, were examples. But non-disclosure does not by itself amount to a circumstance making it unfair to put the defendant on trial at all and it does not afford grounds for a stay. The remedy for non-disclosure will ordinarily be orders for the defendant to be provided with the necessary material, and such order as will ensure that he is not unfairly damaged by its late delivery. Usually the trial can proceed fairly. Sometimes, if the material emerges late, a re-trial may be necessary if the defendant seeks it; in others he may judge that he will be better served by continuing the trial and making a point of the Crown’s failures. But there is nothing akin to the kind of misbehaviour which characterises either the ex p Bennett type of case, or others of gross executive misconduct of a kind which makes it offensive to justice to put the defendant on trial at all. 28. This is well illustrated by Togher . After the defendants had entered pleas of guilty, it had emerged at a linked re-trial that there had been concealment by the investigators of breaches of internal guidance for surveillance and that false assurances had been given by counsel to the trial judge to the effect that authority for the surveillance had been obtained. In the context of a defence which asserted plant and the dishonest framing of the defendants by the investigators, this was plainly of great importance. The non-disclosure was characterised by deliberate failure on the part of the investigators. The case reached the Court of Appeal after the trial judge at the re-trial had stayed the proceedings for abuse of process, and thus it was that this court had to resolve the law as to when an appeal may be mounted notwithstanding a plea of guilty. But, having done so, this court went on to hold that the re-trial ought not to have been stayed at all; the remedy for the non-disclosure was a fair re-trial with all exposed. For this reason, the appeals against conviction were dismissed. It was otherwise in Early because there the non-disclosure concealed entrapment, which is a ground for a stay. 29. As will be seen, we are not satisfied that Dr Black’s evidence at the trial justifies the description of perjury. But even if at the single point of explaining one of the changes from original to amendment statement it did so, that is not a ground for staying the proceedings. The references in Early to the significance of perjury were to false evidence given in PII or voire dire proceedings when the issue of entrapment fell to be decided by the judge; there the perjury concealed grounds for a stay. 30. Accordingly, we do not agree that if the FEL documents had been exposed at or before trial the proceedings would have been brought to an end against this applicant, or, for that matter, against any of the others; indeed it is clear that they would not. Whether this applicant would have been acquitted is a matter of complete speculation. Despite his abandonment of his own device, he had no doubt a formidable case to meet, but no one can say. Similarly, he might or might not have been acquitted at the re-trial had he fought it, but he did not. These speculations have nothing to do with whether his plea of guilty amounted to an unambiguous and voluntary confession. 31. It is entirely clear that it did. Of course a defendant who is confronted by a powerful case may have difficult decisions to make whether to admit the offence or not. He will of course be advised that if he does plead guilty that fact will be reflected in sentence, but that general proposition of sentencing law does not alter his freedom of choice in the absence of an improper direct inducement from the judge, such as there was in R v Inns (1974) 60 Cr App R 231. He will always have it made clear to him that a plea of guilty, should he choose to tender it, amounts to a confession. Only he knows the true facts, which usually govern whether he is guilty or not and did so here. If he is guilty, the fact that the choice between admitting the truth and nevertheless denying it may be a difficult one does not alter the effect of choosing to admit it. We do not begin to agree that Asiedu had no real choice but to plead guilty. He had a completely free choice. Nor do we agree with the further submission made on his behalf that the conviction of the others in some way altered the climate against him. That would be irrelevant to his freedom of choice, but as a matter of fact the disagreement of the first jury in his case, when he had distanced himself from the hoax defence advanced by those whom it convicted, might if anything have been taken as some encouragement. 32. Because it is of cardinal importance that a defendant makes up his own mind whether to confess by way of plea of guilty or not, and because only he knows the true facts, it is not open to him to assert that he was led to plead guilty by mistaken overstatement of the evidence against him. As Sir Igor Judge P observed in R v Hakala [2002] EWCA Crim 730 at paragraph [81], the trial process is not a tactical game. A defendant knows the true facts; he ought not to admit to facts which are not true, whatever the evidence against him, and this will always be the advice he is given. If he does admit them, the evidence that they are true then comes from himself, whatever may be the other evidence advanced by the Crown. 33. In the present case, moreover, it is in any event impossible to see that the admissions which this applicant made can to any material extent have been influenced by the evidence of Dr Black at all, still less by those parts of it which had received adverse comment within the FEL. By the time of the trial it was common ground that the devices were made of flour and hydrogen peroxide. It was the positive assertion of those who admitted that they had made them that those ingredients were mixed in proportions of about 1 to 2. It was common ground amongst all the defendants that the hydrogen peroxide had been cooked at Curtis House to a concentration of about 70%. The only remaining issue to which the scientific evidence of Dr Black had any relevance was whether it might be true that, after first being concentrated to 70%, the hydrogen peroxide had been watered down to about 35%, so as to make the devices into hoaxes. 34. But this was not Asiedu’s case. His positive case at trial was that he had been led to believe, at least on the night before the devices were deployed, that they were real and intended to be used in suicide attacks. He ridiculed the hoax defence, joining with the prosecution in doing so. The issue in his case was whether he had ever taken part in making the devices with the intention to endanger life. As counsel’s very full skeleton argument on his behalf rightly asserts, the central issue in his case was his own state of mind – his intention. In due course, the admissions which he made upon his plea of guilty, carefully reduced to writing, owed nothing whatever to the evidence of Dr Black. The evidence that he had been the procurer of the hydrogen peroxide, in enormous quantities, owed nothing to Dr Black. The evidence that he had lied to the suppliers to obtain it likewise had nothing to do with Dr Black. Dr Black’s evidence could offer no assistance on the intention with which Asiedu did those things. He alone knew the truth of that, and what he admitted was that he had himself had the intention to make real bombs from March. That was contrary to the positive case which he had sworn at the trial was true, namely that he had bought the hydrogen peroxide in all innocence, believing it to be for decorating or for cosmetic manufacture. It was thus, and very clearly, an unambiguous admission. 35. It follows that Asiedu’s plea of guilty unequivocally establishes his guilt. There is nothing arguably unsafe about his conviction, whatever may be the true analysis of Dr Black’s evidence. The failure of disclosure has for these reasons no impact on the safety of his conviction. The impact of the failure of disclosure on the scientific evidence and the trial 36. That is sufficient to dispose of this application, which must be refused. Since, however, we have been addressed at some length on the impact both of Dr Black’s evidence and the failure to disclose the FEL documents criticising some parts of it, we ought to deal with those two matters so far as the material permits us properly to do so. In doing so, we emphasise that we have not embarked upon any determination of any scientific dispute. We were provided with further reports or statements both supporting Dr Black and differing from him, but have not examined them in any detail and have not heard evidence from any of the scientists. Given the plea of guilty, that was unnecessary and inappropriate when dealing with this application for leave. What can, however, be done, and is appropriate, is to identify the extent to which there was, by the time of the trial, any remaining scientific issue, and how far any issue which remained might be affected by the non-disclosure of the FEL criticisms of Dr Black’s initial statement. 37. The concerns expressed by the FEL authors of the two principal documents were these. i) Conclusion 7.1 was overstated and unjustified because isotopic analysis, being of the atoms of elements (here oxygen and carbon) can tell one the elements but does not identify the compounds in which they are present. ii) Conclusion 7.2 (and an earlier statement at 6.2.6 that the scene residues were mixtures of hydrogen peroxide and chapatti flour) were overstated because all wheat flours, including FUDCO chapatti flour, had broadly similar isotopic values for carbon and the isotopic readings were not specific to chapatti flour. iii) A statement at 6.1.10 that oxygen isotopic readings in the scene residues indicated that additional components “rich in oxygen (e.g. hydrogen peroxide)” had been added to the flour was overstated because other additions could have supplied the oxygen – including water. iv) Paragraph 6.2.7 stated “The difference in the oxygen isotope ratios between the starting flour and the scene residues is related to the proportion of hydrogen peroxide added to the material during the preparation of the mixture. This can be quantified through use of a weighed isotope mixing curve …figure A7.2… This shows the proportions of unevaporated hydrogen peroxide in the mixture is between 82-87%, however note results in section 6.4 (evidence of evaporation of hydrogen peroxide).” Firstly, this was said to contain the assumption without proof, also reported at 7.1, as to what the two components in the mixture were (for which see (i) above). Secondly, the quantification was said to be wrongly derived from the mixing curve, which showed, it was said, inadvertent transposition of the flour and peroxide percentages . v) Paragraph 6.4.1 stated: “The carbon and oxygen isotope data from….the scene residues shows that the hydrogen peroxide was concentrated in order to make the samples. The isotopic composition of the samples can only be achieved by concentrating the hydrogen peroxide…” Readings from Dr Black’s own experimental cooking of peroxide were then given in 6.4.2, from which a peroxide concentration in the samples of approximately 54-72% was deduced. Firstly, this was said to be unsupported by evidence of concentration in the scene residues, which might have achieved their isotopic profiles by other means, including the mixing of water with the flour. Secondly, there was said to be an inconsistency between the second sentence and 6.2.7 above. Thirdly, there was said to have been no consideration given to the possible decomposition of the peroxide during cooking, which could alter the isotopic ratios (“fractionation”). Generally, it was said that isotopic ratio measurements do not show conclusive evidence of the concentration of the peroxide. vi) Paragraph 6.5.2 recorded that the scene residues recovered shared the same isotopic profiles, save that those which were moist when recovered differed slightly (but not enough to suggest different origins) as a result of fractionation. This conclusion was said to be “incongruous”, it seems because dry and moist samples could not both contain 68-74% peroxide. Point (i): conclusion 7.1 38. It is easy to see the force of this criticism, which is in fact apparent from the description of isotopic study provided by Dr Black himself in the same report at Appendix A1 and A1.1. Some elements, including carbon and oxygen, have a mixture of atoms, most of them with the usual number of neutrons and a few with a slightly larger number, giving a raised atomic weight. Isotopic analysis involves measuring the ratio of the heavier atoms to the normal ones. Thus it seems clearly correct that by itself this process detects the characteristics of this particular manifestation of the element concerned, in whatever compound it is contained, but it does not follow without more that this necessarily identifies the compound. Whether if there were sufficient control samples of different compounds this would or would not be possible is not discussed in the materials we have seen. Conclusion 7.1, insofar as it gave the impression that isotopic analysis by itself had identified, or could identify, the compounds as flour and peroxide, was at least potentially misleading. At first sight, and without hearing scientific evidence, we provisionally conclude that it ought not to have been written in that form. Nor was this paragraph amended in Dr Black’s Amendment Report. 39. 7.1, however, is only the summary conclusion. The rest of the report shows the full position. At 6.1.1 it shows that flour was identified not by isotope analysis but by X ray diffraction. At 6.1.4 it shows that X ray diffraction also detected the presence of sodium stannate, which is used as a stabiliser in one of the two brands of hydrogen peroxide bought by Asiedu and of which empty bottles were found at Curtis House. 40. More importantly, however, there was at the trial no issue at all about the two components of the devices. They were admitted by those who made them to be flour and hydrogen peroxide. Although Asiedu’s defence differed from that of the others when it came to the suggested watering down of the peroxide and the construction of hoax devices, there was no possible reason to doubt the two components. To the extent that there was an overstatement in conclusion 7.1 it was irrelevant to the case. Its only possible materiality might have been if it were thought to bear on the scientific credentials of Dr Black (as distinct from his familiarity with the way to frame reports for forensic purposes). It must have been apparent to any scientist reading his report. The point was not even touched upon in cross-examination. Point (ii): conclusion 7.2 & para 6.2.6 41. The point made in the FEL documents was that all wheat flours, of which FUDCO chapatti flour was one, were examples of flour made from C3 plants, for which the average ratio for carbon 13 atoms is -27 per mill. That, it was said, called into question the “uniqueness” of FUDCO flour. 42. The average ratio figure of -27 was derived from Dr Black’s own report, where it appears at Appendix A3 and was fully explained. He had at no point used any expression such as “uniqueness”, which was the critics’ word. Rather he had said that his analysis showed that all wheat flours clustered together with broadly similar ratios, but that there were sufficient differences between FUDCO and ordinary wheat flour to differentiate them. It is not obvious what was suspect about that. 43. By way of defence statement in advance of the trial, one or more of the other defendants advanced the positive case that the devices had been made with Sainsbury’s flour rather than with FUDCO flour. When Dr Black came to make his amendment statement in December 2006, he also made an addendum statement detailing further work, part of which addressed this assertion. The addendum statement set out trace element analysis which distinguished clearly between FUDCO flour and Sainsbury’s flour. A table at A6.1 clearly showed marked differences between the two in strontium, sodium, calcium, iron and copper and table A6.2 and slide 32 supported the stated conclusion (at 6.2.1) that trace element and isotopic analysis both showed that the two flours were “different to a degree well outside analytical uncertainty”. Meanwhile, the amendment statement, which said that it was devoted to correcting errors, drew attention to the original conclusion 7.2 and corrected it to: “7.2 Isotopic and trace element analysis of all the scene residues and commercially available flour types shows the flour used in the devices was similar to control sample GL/12 labelled chapatti flour and the control FUDCO chapatti flour GDA 353” (emphasis added) 44. It is very difficult to see how it made any difference to the issue of hoax construction which flour it was. The suggestion made in argument before us was that the type of flour went, first, to Dr Black’s scientific credibility as an expert and, second, to the credibility of Asiedu’s narrative account that an experimental mix had been made at Curtis House but the main mixing had been done at Dalgarno Gardens. As to the first, the point might go to Dr Black’s occasionally casual writing of reports, but if the addendum material was accurate his scientific credibility would scarcely be affected. The second suggestion is far-fetched. True it is that Asiedu gave a circumstantial account of events at Dalgarno Gardens on the morning of the day when the devices were deployed, and true it is that he narrated the mixing of the components. But the identity of the flour variety did not point to either Curtis House or to Dalgarno Gardens. Wherever the mixing was done, it could have been either type of flour. 45. The reality is that it simply did not matter which type of flour it was. Indeed, whilst counsel for Mohammed dutifully put to Dr Black that it might have been Sainsbury’s flour, suggesting that the difference between dry and moist scene residue samples might muddy the picture, he shied away from the trace element analysis and understandably made little of the cross examination. Point (iii): paragraph 6.1.10 46. This point appears to add little. Dr Black’s original paragraph 6.1.10 said no more than that the scene residues contained something more than just flour, which was unarguably correct, that the extra something contained a lot of oxygen, which no one doubted, and that it could be hydrogen peroxide – “e.g. hydrogen peroxide”. In this instance there does not seem to be any overstatement of the conclusion. Point (iv): paragraph 6.2.7 47. When Dr Black met other scientists including his critics on 13 November 2006, a note was made after the discussion. There is no sign that it was sent to him for approval, and in places it is not easy to be sure to whom comments ought to be attributed. But at least on its face it suggests that Dr Black was asked about the figures of 82-87% for the proportion of unevaporated peroxide in the mix and agreed that the figures for peroxide and flour had been inadvertently transposed. It also suggests that he went away to think about it. The next event was the telephone conversation with counsel on 22 November, when, apparently without the original FEL documents before them, they asked if any mistake went to the mix proportion, or to the concentration figure for the hydrogen peroxide, or to both. Dr Black told them that the mix proportion might be “slightly different” and that he wanted to run more tests. He also told them that there were “more ingredients” which were better at showing mix and concentration; that was clearly a reference to trace element work. It was left that he would write two further statements, one of correction and one dealing with additional work. 48. The amendment statement, when made a little later, drew attention to paragraph 6.2.7. as a place where a mistake had been made, and removed from it the last sentence containing the figures of 82-87%. It also substituted the word “illustrated” for “quantified”. A fresh diagram of the mixing curve referred to was provided. This differed, however, only marginally from the first one. There were some modifications to the labelling. It left out percentage figures which had previously appeared along the curve, and which may or may not have been the source of inadvertent transposition if it had occurred. But the plotted positions were the same, for flour and peroxide samples, and for scene residues, and also for different mixture proportions. What the amendment statement did not, however, say, was that there had been any previous inadvertent transposition of the two components, flour and peroxide. Nor did it say that the error had been drawn to the author’s attention, together with other criticisms, by reputable scientists in the field. 49. This correction in the report being apparent, Dr Black was cross-examined about the disappearance of the figures of 82-87% flour as the mix. Perhaps understandably, the questions assumed a connection between these figures and the fact that he had conducted a second set of peroxide cooking/concentration experiments. It is by no means clear that the two had any connection; the concentration experiments no doubt yielded plots on the mixing curve, but any inadvertent transposition/misreading of the end points of that curve seems to have been independent of them. What Dr Black told the court was (i) a second concentration experiment was his own idea because the speed of heating had been very rapid the first time, it seems in part because of the apparatus used, and (ii) the substituted mixing curve in his addendum report used concentrated peroxide at the relevant end rather than unevaporated peroxide as the first (from which he said he had derived these figures) had done. What he did not say was that there had been any transposition of figures. We take the view, at least in the absence of any further explanation, that he ought to have done. It does not, however, follow that Mr Kamlish’s characterisation of this evidence as perjured is justified. Rather, it would appear to be a failure to appreciate the extent of an expert witness’ duty to the court. Given the likely suggestion that the chemical qualities and isotopic characteristics of the peroxide might be altered in the course of cooking (“fractionation”), it is understandable enough why the experiment was repeated at a much slower speed. The speed of cooking and possible effect on composition had been discussed at the meeting of 13 November; once again we make the assumption in the applicant’s favour that Dr Black can properly be criticised for not referring to this in his addendum report, and any failure is similarly of the expert’s duty of frankness. Fractionation was very fully explored before and at trial. It was addressed by Professor Michels for the defence and was the principal point of challenge to Dr Black’s evidence. Thus the failure to disclose the initial references to it in the FEL documents does not appear to have occasioned damage to any defendant on this point (and see point (v) below). The evidence that the first mixing curve had relied on unevaporated peroxide as one terminus seems consistent with what paragraph 6.2.7 said, although why it was ever thought that unevaporated material was the best marker point is less than clear. 50. Whatever may be the correct analysis of paragraph 6.2.7, the mixing curves and any inadvertent transposition, the 82-87% figures went to the mix of ingredients not to the level of concentration of peroxide, which was the only significant live issue in the trial to which Dr Black’s evidence was relevant. These figures were removed by him from his report well before the trial and attention was drawn to their removal. The mix was not significantly in doubt at the trial, for those who made the devices made a positive case that it was peroxide to flour at 2:1. Dr Black’s evidence on this point was in no sense critical to the Crown case. Point (v): concentration of hydrogen peroxide 51. The concentration of peroxide, as mixed with the flour, was an issue central to the hoax defence of the defendants other than Asiedu. The issue was not, however, whether the peroxide had been cooked to 70%. That was clearly established by documents and bottle labels left behind at Curtis House, and was expressly common ground at the trial. The issue was whether there had subsequently been a re-dilution by adding to the concentrated peroxide the same volume of tap water, thus reducing the concentration from 70% to 35%, or thereabouts. The case of the other defendants, given in evidence by Ibrahim, was that only 12 of the bottles of 70% concentrate had been used, leaving lots more of it unused and thrown away after the event. Dr Black’s evidence went to this contention directly and in two ways. First his original and addendum reports derived a concentration in the devices of about 54-72%, from isotopic and to an extent from trace element work. Secondly, when the re-dilution assertion was raised, late, in the course of the trial, it was he who was asked to consider it. His evidence was that the trace element and isotopic evidence was not consistent with such re-dilution with London tap water, for which he had used published chemical data. The scale of the difference between what was found and what would have been involved if tap water had been used as alleged by the defendants was very large. 52. The matters raised by the FEL documents (point (v) above) necessarily went to the first of these two areas of evidence, since re-dilution had not then been raised by the defendants. Moreover, they, or the other points discussed above, might be relevant to Dr Black’s scientific standing and thus to the reliability of his later conclusions about re-dilution. However, his conclusions that re-dilution had not occurred appear to have been fully supported by the trace element analysis, never mind any isotopic analysis. Chiefly, this established that tin, which originated from one of the two brands of peroxide bought by the defendants, was present in the final mixtures in quantities which were consistent with the total peroxide bought and used and not consistent with re-dilution and the throwing away of much of the concentrate. Nor (although this was not the defence case) could all the re-diluted concentrate have been used, because there would then be too much volume for the devices. On the face of it this evidence, combined as it was with the absurdity of first taking a great deal of trouble to concentrate the peroxide only to re-dilute it, with the compellingly late appearance of any suggestion of re-dilution, and with the considerable body of other evidence that what was intended were real bombs, fully supported Asiedu’s contention at the trial that the hoax assertion was false. 53. In any event, the re-dilution and hoax assertions formed no part of Asiedu’s case either at trial or when he pleaded guilty at his re-trial. He positively disclaimed them at trial. When he pleaded guilty, it was his own intention that he was admitting, not anyone else’s. Point (vi): paragraph 6.5.2 54. This appears to add nothing of significance. So far as can be seen, there was nothing suspect about the observation that the moist and dry residue scene samples both pointed to a peroxide concentration in the region of 54-72% and that the differences between them were not significant. In due course Dr Black’s evidence in answer to cross examination was that his conclusions were based on comparing like with like, viz dry with dry. Fractionation was an issue and has been considered above. In any event, the question was not whether 54-72% was less than perfectly accurate, but whether it was double the true concentration, and that depended on whether re-dilution was a live possibility or not (see above). Conclusions relating to the scientific evidence 55. We have not, as explained, embarked on any re-hearing of the scientific evidence. But nevertheless, for the reasons given, and making the assumptions in favour of Asiedu which can properly be made, we reach the following conclusions. Whilst there may well be criticisms which can properly be made of Dr Black in the presentation of a report for forensic purposes, and in the giving of expert evidence, the matters raised in the FEL documents do not appear to undermine his conclusions on the topics on which there was an issue at the trial. In any event, the failure of disclosure had no impact on Asiedu’s case, nor can it have affected the voluntary nature of his confession by way of plea of guilty. Disposal of application 56. It follows that this application for leave to appeal must be refused.

2015_04_30-3601.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/714/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/714

3ee7c6acd7f63f3cc2d5d0e005075df38eac246074a2a76a0986ff27b45d888c

[2021] EWCA Crim 21

EWCA_Crim_21

crown_court

Neutral Citation Number: [2021] EWCA Crim 21 Case No: 202001558 B3 (AND 40 LINKED CASES) IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/01/2021 Before: LORD JUSTICE HOLROYDE MR JUSTICE PICKEN and MRS JUSTICE FARBEY DBE - - - - - - - - - - - - - - - - - - - - - IN THE MATTER OF A REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION Between: JOSEPHINE HAMILTON & OTHERS Appellants - and - POST OFFICE LIMITED Respondent - - - - - - - - - - - - - - -

Neutral Citation Number: [2021] EWCA Crim 21 Case No: 202001558 B3 (AND 40 LINKED CASES) IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/01/2021 Before: LORD JUSTICE HOLROYDE MR JUSTICE PICKEN and MRS JUSTICE FARBEY DBE - - - - - - - - - - - - - - - - - - - - - IN THE MATTER OF A REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION Between: JOSEPHINE HAMILTON & OTHERS Appellants - and - POST OFFICE LIMITED Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - T Moloney QC & Ms K O'Raghallaigh (instructed by Hudgell Solicitors ) for Josephine Hamilton & others Miss L Busch QC & Dr S Fowles (instructed by Aria Grace Law ) for Tracy Felstead, Janet Skinner & Seema Misra Mr L Orrett instructed by Edward Fail Bradshaw and Waterman for Scott Darlington, Stanley Fell, Peter Holmes & Rubina Shaheen Mr O Saxby QC instructed by Gulland Solicitors for Carl Page Mr B Smith instructed by Aliant Law for Vijay Parekh Mr B Altman QC, Ms Z Johnson QC & Mr S Baker instructed by Peters & Peters for Post Office Limited Mr L Mably QC instructed by Government Legal Service as Advocate to the Court Hearing date: 17 December 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Holroyde: 1. The Criminal Cases Review Commission (“the Commission”) has referred to this court forty-one cases in which sub-postmasters and mistresses and other Post Office employees were convicted of offences of false accounting, theft and fraud. The prosecutions were brought by the respondent, the Post Office (now Post Office Limited), and in most cases relied on records kept by the Post Office's Horizon accounting system. The reliability of Horizon has subsequently been called into question, and adverse findings were made by Fraser J in civil litigation, comprising a group action in which hundreds of former Post Office employees were the claimants. Fraser J gave a number of detailed judgments in the course of the litigation, including two which are of particular relevance to these proceedings. 2. It is convenient to begin with the statutory provisions, contained in Part II of the Criminal Appeal Act 1995 , which give the Commission the power to make a reference of this nature. For present purposes, it is sufficient to refer briefly to the following. 3. By section 9(1), where a person has been convicted of an offence on indictment in England and Wales, the Commission may at any time refer the conviction to the Court of Appeal. 4. By section 9(2), a reference of a person’s conviction shall be treated for all purposes as an appeal by the person under section 1 of the Criminal Appeal Act 1968 against the conviction. 5. Section 13, so far as material, provides: “ 13.— Conditions for making of references (1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 … unless— (a) the Commission consider that there is a real possibility that the conviction … would not be upheld were the reference to be made, (b) the Commission so consider— (i) in the case of a conviction, … because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, … and (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused. (2) Nothing in sub section (1 )(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.” 6. The effect of section 14(4A) and (4B) is that unless the Court of Appeal gives leave, the appeal may not be on any ground which is not related to any reason given by the Commission for making the reference. 7. Section 2(1) of the Criminal Appeal Act 1968 , as amended, provides: “Subject to the provisions of this Act , the Court of Appeal – a) Shall allow an appeal against conviction if they think that the conviction is unsafe; and b) shall dismiss such an appeal in any other case.” 8. The Commission gave detailed reasons for referring each of the forty-one cases to this court. Those reasons now take effect as grounds of appeal against conviction. For convenience, we shall refer to the persons whose cases have been referred as appellants, and to the Commission’s reasons as grounds of appeal. 9. The Commission’s reasons in these cases raise the two well-established categories of abuse of process: first, that a defendant could not have a fair trial (“Ground 1”); and secondly, that his or her trial was an affront to the conscience of the court (“Ground 2”). 10. Three of the forty-one appeals are opposed on both Ground 1 and Ground 2. In thirty-four of the others the respondent does not oppose the appeals on Ground 1, but does oppose them on Ground 2. There are four cases in which, for reasons which are said to be case-specific, the respondent does not oppose the appeals on either Ground 1 or Ground 2. The respondent has helpfully made clear from an early stage that no application will be made for a successful appellant to be retried. 11. At a hearing on 18 November 2020 the court gave directions and set a date in March 2021 for the hearing of the appeals. The court also directed that the cases of the thirtyfour appellants whose appeals are unopposed on Ground 1, but opposed on Ground 2, should be listed on 17 December 2020 for the hearing of submissions on two questions of principle: i) Is each appellant entitled as of right to argue Ground 2? ii) If not, on what principles should the court act in deciding whether to permit argument on Ground 2? 12. Directions were given as to the filing of skeleton arguments. We are grateful to HM Attorney General for appointing Mr Mably QC to act as advocate to the court. We are grateful to all counsel for their skeleton arguments. 13. Having heard the oral submissions on 17 December 2020, we gave a short judgment stating our decisions on the issues of principle and indicated that we would give our reasons in writing at a later date. This we now do. 14. At the start of the hearing, we emphasised that the court was concerned only with the cases of the thirty-four appellants to whom we have just referred. We therefore say nothing about the three cases in which the appeals are contested on both Ground 1 and Ground 2, or about the four cases in which the appeals are not contested on either Ground 1 or Ground 2. For convenience only, and intending no disrespect, we shall for the most part refer to the thirty-four appellants collectively, and will only refer to some of them by name. 15. We also made clear at the start of the hearing that the court was concerned only with the issues of principle identified in the two questions, and not with the strengths or weaknesses of any appellant’s case in relation to Ground 2. The merits of an appellant’s case on Ground 2, if argument on that Ground were permitted, would be a matter for the court to determine at the appeal hearing in March 2021. 16. Although the respondent does not resist the appeals on Ground 1 in these thirty-four cases, it will be for the court to determine in due course whether the convictions are unsafe on that ground. That too will be determined at the hearing in March 2021. The merits of Ground 1 are not relevant to the issues of principle which we have identified. 17. In their oral submissions in relation to the first question of principle, counsel were agreed that no appellant is entitled as of right to argue Ground 2 if his or her appeal will in any event be allowed on Ground 1. An earlier written submission to the contrary, by counsel previously acting for the appellants Tracy Felstead, Janet Skinner and Seema Misra, was not pursued. All counsel therefore focused their helpful submissions on the matters which the court should consider in deciding whether to exercise its discretion to permit argument on Ground 2. 18. As to the second question of principle, Miss Busch QC and Dr Fowles submitted on behalf of the appellants Tracy Felstead, Janet Skinner and Seema Misra that the court must act judicially. It would be wrong in principle for the court to permit the respondent effectively to preclude argument on Ground 2 by its concession that Ground 1 is not opposed. The requirement in rule 1.1(2)(e) of the Rules to deal with cases efficiently and expeditiously has to be considered in the context of the issues in the case: it should be considered as relating to expenditure of time which is disproportionate to the importance of the issue. The issue raised by Ground 2 is one of abuse of process in exceptional circumstances, and it is firmly in the interests of justice that it should be considered by the court. The appellants have suffered very severely as a consequence of their prosecutions, and a finding in their favour on Ground 1 alone would not fully vindicate them. Miss Busch invited the court to address any concerns about delay by appropriate exercise of its case management powers, and indicated that the Ground 2 submissions could be made on the basis of the material which has already been disclosed. She pointed out that there has been important disclosure since the Commission referred the cases, and submitted that the public interest required consideration of the complete picture. The respondent should not be able to sidestep the issue raised in Ground 2 by conceding the appeals on the basis of Ground 1. She referred to the decision of the Supreme Court in R v Maxwell [2011] 1 WLR 1837 , and in particular to the judgment of Lord Dyson JSC, who said at [13] that in the second category of abuse of process – “… the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will offend the court’s sense of justice and propriety .. or will undermine public confidence in the criminal justice system and bring it into disrepute … .” Miss Busch submitted that these are exceptional cases, with a very sorry history, and that denying the appellants the opportunity to make good their case on Ground 2 would create a very real risk of public confidence in the criminal justice system being undermined. 19. Mr Moloney QC and Ms O’Raghallaigh, who represent Josephine Hamilton and 31 other appellants (including some whose cases fall outside the group of thirty-four with whom this judgment is concerned), relied on the court’s duty, to further the overriding objective of the procedural code contained in the Criminal Procedure Rules (“the Rules”), which by rule 1.1(1) is – “that criminal cases be dealt with justly.” 20. Paragraph 2 of rule 1.1 states: “(2) Dealing with a criminal case justly includes— (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights; (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case; (e) dealing with the case efficiently and expeditiously; (f) ensuring that appropriate information is available to the court when bail and sentence are considered; and (g) dealing with the case in ways that take into account— (i) the gravity of the offence alleged, (ii) the complexity of what is in issue, (iii) the severity of the consequences for the defendant and others affected, and (iv) the needs of other cases.” 21. Mr Moloney submitted that the overriding objective would best be served in this case by allowing, as soon as possible, the appeals of those appellants whose convictions the court thinks unsafe. The hearing of argument on Ground 2 would lead to delay, and would involve a considerable and unnecessary use of the court’s time, notwithstanding that all parties agree that Fraser J’s judgments should be received as fresh evidence. He pointed out that of the appellants whose appeals are not opposed on Ground 1, only three (Tracy Felstead, Janet Skinner and Seema Misra) had actively sought to argue Ground 2: other appellants would be content to have their appeals allowed on Ground 1 alone. He made plain, however, that the appellants for whom he acts do contend that Ground 2 is made out in their cases. Accordingly, if the court concluded that argument should be heard on Ground 2, they would wish their submissions on Ground 2 to be fully heard. Mr Moloney questioned whether it would be practicable for such argument to take place in March 2021, given that the programme of extensive post-conviction disclosure is not scheduled to be completed until early February. He submitted that a fact-specific analysis would be needed of each appellant’s case, which would inevitably take time and may necessitate applications to adduce fresh evidence (including, he suggested, expert evidence). He acknowledged however that there would be scope for seeking the agreement of relevant facts in order to narrow any contested issues. 22. Mr Orrett indicated that the appellants Scott Darlington, Stanley Fell, Peter Holmes and Rubina Shaheen do not want further delay and therefore do not ask the court to consider Ground 2, being content if their convictions are found unsafe on Ground 1. If however the court decides that both grounds should be considered, they would wish to make submissions in support of Ground 2. He suggested that the hearing of submissions on Ground 2 would have to await the conclusion of a police investigation, recently commenced, into whether employees of Fujitsu (the company which installed and maintained the Horizon system) had committed perjury in relation to the reliability of the Horizon system. 23. Mr Saxby QC indicated that the appellant Carl Page did not seek to argue Ground 2, even if the court permitted argument by other appellants. 24. Mr Smith on behalf of the appellant Vijay Parekh also submitted that if Ground 2 was to be argued, it would have to be dealt with fully, as the public interest would not be served by an incomplete consideration of an important issue. He too submitted that considerable delay might result. 25. For the respondent, Mr Altman QC and Ms Johnson QC submitted that in referring these cases to the Court of Appeal, the Commission gave as its reason – “… a real possibility that the Court of Appeal will conclude that it was an abuse of process to prosecute these cases, and will conclude that the associated convictions are thereby unsafe.” They submitted that the reason for the referrals was a single ground of abuse of process, and that in each of the thirty-four cases the respondent has conceded that there was an abuse of the process and the convictions are accordingly unsafe on Ground 1. They submitted that at present the ambit of Ground 2 is uncertain, and it is therefore uncertain whether it will be possible to hear submissions on that Ground in March 2021. Each appellant’s case would require fact-specific consideration, and it would be necessary to look at the actions of employees of Fujitsu as well as of the respondent. Argument as to Ground 2 may therefore involve applications to receive fresh evidence, which may or may not succeed, and will take considerable time. Whilst disavowing any intention to mount an argument in terrorem , counsel pointed out that the present, extensive disclosure process is limited to a period which ends in 2013, when the respondent ceased to commence any further prosecutions in reliance on the Horizon system. If argument on Ground 2 were to be permitted, and if any appellant sought to rely on matters occurring after that period, there might have to be a further disclosure process and consequent delay. 26. Mr Mably QC submitted that in deciding whether the court should permit argument on Ground 2, and on the premise that the court will allow the appeals on Ground 1, the overarching principle is that the court should act in the interests of justice. Factors to be considered relate to the efficient and expeditious administration of justice and the interests of an appellant in being vindicated on as wide a basis as possible. The legitimate interests of an appellant, and the wider public interest, may militate in favour of deciding an additional ground. Reputational interests of the appellants may be important. Issues of alleged abuse of the process are serious, and it may be undesirable for them to be side-stepped because the appeals will succeed on another ground. It is for the court to decide, weighing all relevant factors, whether it is in the interests of justice that Ground 2 be determined even if appeals will be allowed on Ground 1. 27. Our conclusions are as follows. 28. We approach the first question of principle on the basis required by section 9(2) of the 1995 Act , that each of these appellants, having had his or her case referred to this court by the Commission, must be treated as if he or she were bringing an appeal against conviction under the 1968 Act . The effect of the statutory provisions to which we have referred is, therefore, that each appellant is to be treated as having been granted leave to appeal against conviction on Grounds 1 and 2: we are not here concerned with the position of an applicant seeking to renew a ground of appeal in respect of which leave has been refused, or to vary grounds to add a further point. At the hearing of the appeals, it will be the duty of the court, pursuant to section 2 of the 1968 Act , to consider whether the conviction of an appellant is unsafe, to allow the appeal if the court thinks that it is unsafe, and otherwise to dismiss the appeal. 29. It is clear that the court could not properly dismiss an appeal against conviction without first considering all the grounds of appeal. As to whether the court may properly allow an appeal against conviction without considering all the grounds of appeal, we were referred to case law including the following. 30. In R v Berry (no 3) (1994) 99 Cr App R 88 Lord Taylor CJ at p96 considered how lengthy protraction of proceedings, such as had occurred in that case, could be avoided in the future. He observed: “If one of a number of grounds of appeal appears well-founded, this Court not infrequently indicates that it will allow the appeal on that ground without hearing argument on the others. This is a desirable option in the interests both of the speedy and economical disposal of the instant case and of enabling other appellants’ cases to come on.” The Lord Chief Justice went on to consider the position if some grounds of appeal had been left unresolved by the Court of Appeal, and there was then a successful appeal to the House of Lords. 31. In R v Mandair [1995] 1 AC 208 , again in the context of considering the position if one or more grounds of appeal are left unresolved by the Court of Appeal, Lord Mackay of Clashfern LC said at p217E: “It is often the case that a number of grounds of appeal are urged before the Court of Appeal but having reached a clear conclusion upon one which determines the case, the Court of Appeal do not decide the other grounds since such decision is unnecessary to the disposal of the case on the view they have taken of it. It would obviously be highly undesirable and wasteful to require the Court of Appeal in every case to decide all the grounds of appeal before disposing of an appeal before them, on the basis that if a point of law of general public importance is raised in the appeal the House of Lords may take a different view of the point from that taken by the Court of Appeal if leave to appeal to the House of Lords is granted in respect of the decision.” 32. Those two decisions suffice to confirm that there is a well-established practice that this court will sometimes allow an appeal against conviction on one ground without deciding, or hearing argument upon, another ground or grounds. The respondent helpfully brought to our attention two more recent examples of that practice: R v Mears [2011] EWCA Crim 2651 and R v Sadeer [2018] EWCA Crim 3000 . No counsel has referred us to anything in the Criminal Appeal Act 1968 or in the Rules or the Criminal Practice Direction which casts doubt on that practice. 33. We accept Mr Mably’s submission that in performing its statutory duty under section 2 of the 1968 Act , the court must resolve all matters which are necessary to determine whether the convictions are unsafe but is not required to resolve matters which are not necessary to that resolution. The need to resolve all matters which are necessary to determine whether a conviction is unsafe is consistent, in our view, with the general rule that an appellant is required to raise in his appeal all the grounds on which he wishes to rely: he cannot present his appeal on some grounds, and hope to be permitted to advance others at a later date if his appeal is unsuccessful: see, eg, R v Berry (1991) 92 Cr App R 147 , cited in R v Wallace Duncan Smith (no 2) [1999] 2 Cr App R 444 at p449E. In many cases, of course, the court will in any event wish to hear submissions on all grounds; and it will often be the case that argument on one particular ground occupies only a small proportion of the overall hearing. If however the court concludes that an appeal against conviction must be allowed on one ground, it is not required to hear argument on another ground. As we have indicated, it is for the court to determine whether a conviction is unsafe, even if the appeal against that conviction is not opposed by the respondent. It follows that it will be for the court to decide to what extent it needs to hear submissions about a particular ground of appeal before finding that a conviction is unsafe. The court has the right and duty to regulate the way in which appeals are conducted before it. In all cases, therefore, it is for the court to decide whether it needs to hear argument on all grounds and, if so, in what sequence and in what degree of detail. Those will, necessarily, be case-specific decisions. 34. We accordingly agree with counsel that in the present cases, if the court decides to allow an appellant’s appeal on Ground 1 (a decision which, we reiterate, must await the hearing of the appeal), the appellant is not entitled as of right to argue Ground 2. 35. We turn to the second question and consider the principles which should be applied by the court if it reaches the conclusion that an appellant’s appeal must be allowed on one ground, and is considering whether in the exercise of its discretion to hear argument on a further ground. 36. In such a situation, the guiding principle must be that the court must act in the interests of justice. Without attempting an exhaustive list, and subject of course to the particular circumstances of the case under consideration, it seems to us that when considering whether it is necessary or desirable in the interests of justice that a further ground should be determined, the factors which the court will usually wish to consider include (but are not limited to) the following: i) The article 6 rights of the appellant; ii) The overall importance to the parties and to the public of the further ground, bearing in mind that the appeal will in any event be successful; iii) The furtherance of the overriding objective in accordance with the Rules; iv) Whether the additional ground raises issues of particular importance in relation to the character and/or reputation of the appellant and/or of a witness or other person concerned in the proceedings; v) Whether the additional ground relates to an issue which should be resolved in order to maintain public confidence in the criminal justice system; vi) Whether the additional ground raises a legal issue which may be important in other cases; vii) The desirability of an appellant, even though his or her appeal will in any event succeed, being able to seek appropriate vindication; viii) The time and expense which will be involved in determining the additional ground, and the extent to which the court’s resources will be taken up, bearing in mind the interests of appellants in other, unrelated cases who wish their appeals to be heard; ix) Whether determination of the additional ground would give rise to undesirable delay to the instant appeal, or to other cases which are in some way linked to it or affected by it; x) Whether determination of the additional ground is necessary in order to establish the proper basis on which a retrial of an appellant would be conducted; xi) Whether any party may have a collateral reason for wishing to argue, or to avoid having to argue, the additional ground, and if so, the legitimacy (or otherwise) of that reason. 37. The court will need in each case to balance the above factors and any others which are relevant to the particular case. It is impossible to lay down any general rule. In some cases the court may conclude that no useful purpose would be served by hearing submissions about the additional ground, for example because it would add nothing of significance to the conclusion already reached but would give rise to significant delay in concluding the proceedings. In others the court may conclude that it would clearly be in the interests of justice that the further ground be considered, notwithstanding the consequent lengthening of the proceedings, for example because resolution of it would provide guidance as to the proper interpretation of a statute or would clarify conflicting previous decisions on a point of law. 38. In these appeals, the following factors are, in our view, of particular importance. 39. First, issues of abuse of the process of the court are important matters of concern to the appellants and the respondent, and are also matters of public interest. The appellants contend that their prosecution was an abuse of the process involving prosecutorial misconduct. In our view, it is in the public interest that that matter should be considered at a public hearing. That public interest is reflected in the decision of the Commission that there were exceptional reasons which justified the making of referrals in these cases notwithstanding that the appellants had not previously applied for leave to appeal. 40. Secondly, whilst Ground 1 raises the issue of whether it was possible for an appellant to have a fair trial, Ground 2 raises the issue of whether he or she should have been prosecuted at all. Unlike Ground 2, therefore, Ground 1 presupposes that it was appropriate that there should be a prosecution. Ground 1 involves issues as to whether the respondent made appropriate and/or timely disclosure of information and material relating to the reliability or otherwise of the Horizon system. Ground 2 may substantially turn on whether the relevance of that information and material was appreciated at the time by anyone concerned in the commencing of the prosecutions against the appellants. Although both Grounds raise aspects of the court’s jurisdiction to stay proceedings as an abuse of the process, both the appellants concerned and the public may legitimately feel that there is a material difference between them, and that a finding in the appellant’s favour on Ground 2 adds materially to a finding in his or her favour on Ground 1. If in fact an appellant should never have been prosecuted at all, it is in our view right that the court should make that determination. To allow an appeal in such circumstances solely on the basis that the manner of that appellant’s trial was unfair would not sufficiently vindicate the appellant concerned. 41. The combination of the legitimate interests of the appellants, and the public interest, make this in our view a very strong case for the court to exercise its discretion in favour of hearing argument on Ground 2. 42. Thirdly, we recognise that this court does not act as a tribunal of inquiry when considering an appeal against conviction. We are however satisfied that appropriate case management can avoid any risk of these appeals becoming an open-ended exercise in finding facts. 43. Fourthly, we do not accept the submissions that consideration of Ground 2 will cause undue delay in the determination of these appeals, or will contravene the requirement of the Rules to deal with these cases efficiently and expeditiously. The third and sixth judgments of Fraser J in the civil proceedings dealt comprehensively with many evidential and technical issues which are relevant to these appeals. The court has previously directed that those judgments may be referred to at the appeal hearing, when it will be for the court to decide whether to receive the judgments as fresh evidence, pursuant to section 23 of the Criminal Appeal Act 1968 . A further analysis of the evidence is to be found in the detailed reasons for referral given by the Commission. All that material was available to the parties when the Commission referred these cases to the court. In addition, the respondent, as we have said, is undertaking a very substantial process of disclosure, much of which has already been completed. We find it difficult to see why an appellant would not be able to argue Ground 2 on the basis of that existing material and such further material as may be disclosed in the remaining weeks of the disclosure process. Any appellant who wishes to pursue a fresh line of enquiry would have to make, and justify, an application for specific disclosure. Any party who contends that the cases could not be ready for hearing on the scheduled date in March 2021 would have to satisfy the court that an adjournment really was necessary. In those circumstances, and bearing in mind that the court will in any event need to consider whether the convictions are unsafe on the basis of Ground 1, we are not persuaded that the additional time which will be necessary to hear submissions on Ground 2 will add disproportionately to the length of the appeal hearing. 44. It was for those reasons that we concluded, and ordered – i) That no appellant is entitled as of right to argue Ground 2 if his or her appeal will in any event succeed on Ground 1. ii) That in the exercise of its discretion, the court will however permit argument on Ground 2 by any appellant who wishes to advance it. No appellant is required to do so: all are free to limit themselves to argument on Ground 1 if they so wish. 45. The court went on to give directions, which need not be repeated here. They were intended, consistently with the overriding objective, to avoid any risk of delay to the determination of these appeals.

2021_01_15-5065.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/21/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/21

1b65ca168a54184852cbf3e0011042f434223bcb6019169ba2ffadb16019c525

[2007] EWCA Crim 1239

EWCA_Crim_1239

supreme_court

Neutral Citation Number: [2007] EWCA Crim 1239 Case No: 2006/00338D3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CANTERBURY CROWN COURT HIS HONOUR JUDGE VAN DER BIJL T20050041 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24 May 2007 Before : LORD JUSTICE THOMAS MR JUSTICE PENRY-DAVEY and MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Cornel Tirnaveanu Appellant - - - - - - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 1239 Case No: 2006/00338D3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CANTERBURY CROWN COURT HIS HONOUR JUDGE VAN DER BIJL T20050041 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24 May 2007 Before : LORD JUSTICE THOMAS MR JUSTICE PENRY-DAVEY and MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Cornel Tirnaveanu Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Nick Wrack and Dean George for the Appellant Anthony Prosser and A Walker for the Respondent Hearing date: 8 March 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas : 1. After a two month trial, the appellant and his wife were convicted at the Crown Court at Canterbury before HH Van Der Bijl and a jury of various offences (including obtaining property by deception, forgery and facilitating illegal entry) relating to the illegal entry into the United Kingdom of Romanian immigrants. Sentences of varying duration, some of them consecutive, amounting in total to seven years were passed on the appellant. 2. His application for leave to appeal against conviction, as originally formulated, contained a very significant number of grounds. That application was referred to the Full Court on the understanding that, if leave to appeal was granted, a full hearing would follow; we granted leave to appeal. The grounds of appeal were significantly revised and can be grouped under three headings i) The admissibility of misconduct on other occasions and the directions given in the summing up in the light of the bad character provisions of the Criminal Justice Act 2003 (CJA 2003). ii) The need for a direction on unanimity on the forgery counts. iii) The validity of count 12 - the charge of facilitating illegal entry. The most important of these, both to the appellant and generally, was the first. 3. As can be appreciated from the length of the trial, the circumstances in which the offences were committed and the evidence adduced by the prosecution were complex. The factual background and evidence 4. However for the purposes of the appeal we consider the background circumstances can be summarised briefly. i) The appellant was a Romanian national. He came to the United Kingdom in August 1993; after marriage to a British national, he was granted indefinite leave to remain in this country. That marriage was dissolved. On 13 June 2002 he married his co-defendant; prior to the marriage, using the name of Denise Dupont, she had lived with him in the United Kingdom at 9a Chancelot Road, Abbey Wood, London from November 2000 until June 2003. From June 2003 the appellant and his co-defendant lived at 85 Chandlers Drive, Erith and then at 33 Wallhouse Road, Erith. ii) In September 2002 the appellant obtained from a bureau in London, by payment of £440, what purported to be a degree of Bachelor of Laws with Honours in Criminal Law granted by Trinity College, Delaware, USA. He was granted British citizenship in May 2003. iii) It was the prosecution case that he had become involved by December 2002 in illegal immigration and was posing as a solicitor. On his arrest there was found in his possession business cards with the inscription of the appellant’s name, and “LLb(Hons), solicitor, of Tiko Solicitors, 24 Hr. Criminal Emergency Services” with an address in Dartford. There were no such solicitors. 5. He was not charged with conspiracy, but with a number of specific counts in the indictment. The essence of the main allegations can again be summarised briefly. i) In count 1 of the indictment, he was charged, with his second wife, of making, or procuring the making, of a false French identification card in the name of Denise Dupont. The evidence relied on for this was the discovery by the police when searching the premises at 85 Chandlers Drive of a document purporting to be a French identify card in the name of Denise Dupont; when it was forensically examined, it was found to be counterfeit. The prosecution case was that Denise Dupont was the appellant’s wife and that the appellant made or procured the making of the false identity card. There was no issue that it was counterfeit; the issue was whether there was a Denise Dupont or whether the person for whom the card was to be used was the appellant’s wife and who procured or made the false identity card. ii) In counts 8-12 of the indictment the appellant was charged with a number of offences in relation to Monica Halarescu; a) Obtaining two sums of £3,500 from her by deception. b) Making or procuring the making of a false British passport in the name of Monica Halarescu; c) Making or procuring the making of a forged certificate of British naturalisation in the name of Monica Halarescu (Counts 10 and 11); d) Facilitating the illegal entry of Monica Halarescu (Count 12). It was the prosecution case that he had falsely represented to her that he was a qualified solicitor, worked for the Home Office, was authorised to facilitate her application for a certificate of British nationality and a British passport, could supply such documents and was acting in good faith. The prosecution called Monica Halarescu and Nicolae Bilbie as their principal witnesses. Monica Halarescu’s evidence was she had met through Nicolae Bilbie a man who had said he was “Cornel Tirnaveanu” and that he was a lawyer working at the Home Office. It was the prosecution case that this individual was the appellant. Various representations were made to her as a result of which she handed over a total of £7,000 to that man and received from that man a UK passport and UK certificate of naturalisation. She went to Romania using the documents. On arrival the fact that the documents were forged was discovered; the fact that they were forged was not in issue. Bilbie’s evidence was he had given Monica Halarescu photographs of himself and personal details. When the police searched the appellant’s address, photographs of Bilbie were found at his house. Bilbie never met the lawyer who was to obtain a British passport for him. iii) In counts 13 to 18 of the indictment, the appellant was charged with obtaining £5,000 from Stefan Iamandi, Irina Iamandi and Ion Iordache by making representations similar to those made to Maria Halarescu and attempting to obtain a further £5,000 from each of them. All three were Romanians who had entered the UK illegally in 1998. Their evidence was that they had been told of a lawyer with connections with the Home Office who could help obtain a British passport and certificate of naturalisation. In June or July 2003 they were introduced to a person they understood to be Cornel Tirnaveanu. The prosecution contended that this man was the appellant. The three had expected to meet an English lawyer but were surprised that he was a Romanian. He made various representations to them about his ability to obtain a passport and each handed to him £5,000 together with their passport photographs and details. They then learnt that a friend who had introduced them to Cornel Tirnaveanu and who had obtained a passport from him had been arrested for being in possession of a forged passport. When they were telephoned by Cornel Tirnaveanu with news that the passport was ready, they met him at a coffee shop but did not bring any money to the meeting. They were shown documents but on discovering that they had not brought the money Cornel Tirnaveanu refused to hand over the documents. When the police searched 85 Chandlers Drive they found details of these three together with photographs of Iordache. The police thereafter contacted them. iv) There were four further counts of facilitating illegal entry (counts 19, 20 and 21) and of forgery of a photocard driving licence (count 22). It is not necessary at this stage to refer to the details of those further matters. 6. In his interviews with the police and in his defence case statement, the appellant denied each and every allegation. He put the prosecution to proof. He also claimed he was not involved. An elaborate conspiracy had been set up to “frame him” as the person who was acting as the lawyer. If he had been involved, then there was no dishonesty as those who paid him for documents, must have realised that it was all a “scam”. In the event, neither the appellant nor his wife gave evidence at trial. 7. In addition to the evidence to which we have referred, a substantial number of other witnesses were called. It is in relation to that evidence that the first group of grounds of appeal arose. (1) Admission of evidence of misconduct on other occasions and the directions to the jury (a) The nature of the evidence 8. In order to meet the appellant’s case that it was not him, but some other person, who was involved in the provision of forged passports or false documents or in the illegal assistance of immigrants, the prosecution primarily relied upon the evidence of those witnesses directly relating to the counts which we have set out above. However during a search of the appellant’s properties, the police discovered a significant amount of paperwork relating to other Romanians whom the prosecution contended were illegal immigrants. We have already referred to the paperwork in connection with Bilbie at paragraph 5 (ii) above and that in relation to Iamandi and Iordache at paragraph 5 (iii) above. No objection was taken to the admissibility of that evidence. 9. However, the prosecution wished to go further and to adduce: i) Evidence in relation to other documents found at the appellant’s houses which contained details referable to illegal immigrants. The prosecution wanted to call, in connection with those documents, evidence from the immigrants and evidence from immigration officers in relation to such immigrants. ii) Evidence of others to show that the appellant was acting as a lawyer and dealing with illegal immigrants. This second category of evidence can be illustrated by the evidence of Colin Martin, a British national now living in Romania. He was involved, on his own admission, in assisting Romanians to enter the UK illegally. At the end of November 2002 8 out of a group of 10 illegal immigrants who were being brought into the UK by Martin were caught at Dover; a telephone call was placed to a lawyer called Cornel Tirnaveanu who subsequently met with Martin at Dover and gave him a document advertising a 24 hour non stop helpline which had on it the appellant’s telephone number and a business card with the appellant’s name on it to which we have referred at paragraph iii). It was Martin’s evidence that the person who met him admitted to Martin that he was involved in assisting the illegal entry of immigrants into the UK, including the provision of passports. The description given by Martin of the person he met did not coincide with the appellant; nor did Martin pick out the appellant at an identification parade. The prosecution sought, however, to prove that the person who met Martin was indeed the appellant by showing that the appellant’s mobile telephone (subsequently found at his address) was in Dover on the day when Martin met the lawyer at Dover. They also sought to prove that the appellant was the lawyer who, when visiting the Oakington Immigration Reception Centre, had assisted another illegal immigrant, Mocanu, whom Martin had brought into the country. 10. The prosecution sought through this further evidence (examples of which we have set out) to prove that it was in fact the appellant who was engaged as a lawyer in assisting illegal Romanian immigrants and that it was not another person purporting to be the appellant as the appellant claimed. (b) The appellant’s contentions 11. Submissions were made on behalf of the appellant that this further evidence should not be admitted. Although the judge ruled that some of the evidence was inadmissible, a substantial amount of the evidence was ruled to be admissible. That evidence was duly heard in the course of the trial and directions given in respect of it by the judge in his summing up. 12. It was contended on behalf of the appellant that the judge was wrong to admit the evidence and, having admitted it, had failed to give proper directions to the jury. The ruling made by the learned judge was on 5 October 2005 and the summing up delivered on 13 December 2005. Although by that time the bad character provisions of the Criminal Justice Act 2003 had come into force, there was little authority to guide the judge. Moreover, it is apparent, as was observed in Chopra [2006] EWCA Crim 2133 , that the sea change in the law effected by the CJA 2003 had not been fully appreciated. Since that time this court has given guidance on these provisions and we are grateful to counsel for their marshalling of the authorities. (c) The approach in the light of the CJA and the authorities 13. It may be helpful therefore if we set out the way in which we consider the issue of admissibility and the summing up should have been approached in the light of those authorities and examine the effect of the judge’s ruling and the summing up on that basis. We do not think it necessary to consider the way in which the judge approached admissibility in detail; the issues can, we think, be addressed by 6 questions which we considered during the course of argument on the hearing of the appeal. (i) Was the evidence relevant? 14. In approaching the evidential issues in this case, it was necessary first of all to establish that the evidence was relevant. It is usually essential, when seeking to establish relevance, to consider the specific issue in the case to which the evidence is relevant. 15. In the present case it is clear that, as we have set out, the evidence in relation to the other immigrants was highly relevant to proving that it was the appellant who had committed the offences charged and not some other person posing as the appellant, as the appellant claimed. 16. It was contended by counsel for the appellant before us that the prosecution did not need this evidence as it had the evidence of those who had been the victims of the specific conduct complained of. However as long as the appellant was putting forward the defence that it was some other person and not him, the evidence was plainly relevant and the prosecution were entitled to call other evidence to strengthen their case, provided it was admissible. (i) Was the evidence of “bad character”? 17. Once it was established that the evidence was relevant, it was next necessary to consider whether the evidence was evidence of “bad character” as defined by Chapter I of Part 11 of the CJA 2003, because, if it was, that statutory regime governed all further issues of admissibility and abolished the common law rules. “Bad character” has a very far reaching definition. 18. S. 98 of the CJA 2003 provides: ““Bad character” References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which – a) has to do with the alleged facts of the offence with which the defendant is charged, or b) is evidence of misconduct in connection with the investigation or prosecution of that offence. S. 112 (1) defines misconduct as “the commission of an offence or other reprehensible behaviour”. 19. There may initially have been some doubt as to whether an allegation of misconduct untested by a judicial finding was within the provisions. But as is clear from decisions of this court in R v Edwards; R v Fysh [2005] EWCA Crim 1813 ( [2006] 1 Cr.App.R.3 ) at paragraphs 71 to 77, R v Weir [2005] EWCA Crim 2866 ( [2006] 1 Cr.App.R.19 ) at paragraph 94, R v Edwards and Rowlands [2006] EWCA Crim 3244 ([2006] 2 Cr App 4 at paragraphs 77-81 and R v Leslie B. [2006] EWCA Crim 2150 at paragraph 51, evidence that alleges the commission of an offence or other reprehensible behaviour is within the scope of the definition of misconduct. 20. It was not in issue on this appeal that the evidence the prosecution sought to adduce was evidence of misconduct within the statutory definition. (i) Was the evidence “to do with the alleged facts of the offence”? 21. S. 98 of the CJA 2003 excludes from the definition of bad character, misconduct on the part of a defendant which has “to do with the alleged facts of the offence with which the defendant is charged”. The contention of the prosecution was that the evidence was “to do” with the offences with which the appellant was charged. The consequence of that argument was that if the evidence was within the exclusion, then it was not for the purposes of the statutory provisions evidence of bad character and, as this court said in R v Edwards and Rowlands (at paragraph 1(i)) (as qualified in Watson [2006] EWCA Crim 2308 at paragraph 19), the evidence “may be admissible without more ado”. 22. There is very little authority on the extent of this exclusion. In R v Machado [2006] EWCA Crim 1804 , the defendant charged with robbing a victim wished to use evidence that the victim had taken an ecstasy tablet shortly before the attack and immediately before the attack had offered to supply him drugs. This court held that the matters were in effect contemporaneous and so closely connected with the alleged facts of the offence and so were “to do” with the facts of the offence. In Edwards and Rowlands , this court observed at paragraph 23 that the term was widely drawn and wide enough to cover the finding of a pistol cartridge at the home of one of the defendants when it was searched in connection with the drugs offences with which the defendants were charged. In McIntosh [2006] EWCA Crim 193 , this court held that a matter immediately following the commission of the offence was “to do with the offence”. In Watson , an assault committed was held to do with the charge of rape committed upon the same person later in the day. Professor J R Spencer, QC in his useful monograph, Evidence of Bad Character at paragraph 2.23 suggested that it clearly covered acts which the defendant committed at the same time and place as the main offence and presumably covered acts by way of preparation for the main offence and an earlier criminal act which was the reason for the main crime. 23. The basis on which it was contended before us by the prosecution that the evidence which they sought to adduce was “to do” with the facts of the alleged offence was that it was evidence which was central to the case in that it related to proving that the appellant was the person who had committed the offences charged in the various counts. We do not accede to that submission. As counsel for the prosecution accepted, if his submission was right, then in any case, where the identity of the defendant was in issue (including, by way of example, cases of sexual misconduct), the prosecution would be able to rely on this exclusion to adduce evidence of misconduct on other occasions which helped to prove identity. It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce. In the commentary in the Criminal Law Review to R v T [2007] Crim LR 165, it was argued that the court in Machado and McIntosh had taken too narrow a view of s.98 thereby permitting prejudicial evidence to be admitted on the threshold test of relevance alone with no gateway having to be satisfied. We do not agree – the application of s.98 is a fact specific exercise involving the interpretation of ordinary words. 24. We respectfully agree with Professor J R Spencer, QC Evidence of Bad Character at paragraph 2.23 where he suggests that there is a potential overlap between evidence that has to do with the alleged facts of the offence and evidence that might be admitted through one of the gateways in section 101(1) . As he observes in relation to the example he took of prior misconduct being the reason for the commission of the offence, such evidence could be admitted either as “to do” with the offence or as important explanatory evidence under s.101(1)(c): “In practice nothing of any legal significance depends on which of these two routes it is by which the evidence comes in”. (i) Was the evidence admissible under one of the gateways in s. 101(1)? 25. As the evidence was not “to do” with the alleged facts of the offence, then the next issue to consider was whether the evidence was admissible through one of the gateways in s. 101(1). 26. It was not seriously disputed that the further evidence in this case was admissible under s. 101(1)(d), as it was relevant to an important matter in issue between the defendant and the prosecution – whether it was the appellant who had committed the offences and not some other person. (a) Would the evidence have such an adverse effect on the fairness of the proceedings that it ought not to be admitted? 27. There are two relevant statutory provisions: i) S. 101(3) of the CJA 2003 “The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” ii) 78(1) of the Police and Criminal Evidence Act 1984 ( PACE ): “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 the court ought not to admit it.” As was made clear in Highton and Weir (at paragraph 44) , where the CJA 2003 does not permit s. 101(3) to be relied on, s.78 of PACE should be considered. In this instance the relevant provision is s. 101(3). 28. The difference in the wording of the statutory provisions appears to relate solely to the question of whether the court has a discretion; s 101(3) of the CJA 2003 provides that the court must exclude the evidence if the condition is satisfied whilst s.78(1) of PACE appears to give the court a discretion. However, as is clear from the decision of this court in R v Chalkley & Jeffries [1998] 2 Cr.App.R.79, this is a distinction without a difference as the court under s. 78(1) of PACE has no discretion once the condition is in its view satisfied: the court said at page: “We have put the words “exercise of discretion” in this context in quotation marks because, as the court said in Middlebrook and Caygill (unreported), February 18, 1992, the task of determining (in)admissibility under section 78 does not strictly involve an exercise of discretion. It is to determine whether the admission of the evidence: “having regard to all the circumstances, including the circumstances in which the evidence was obtained, … would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” If the court is of that view, it cannot logically “exercise a discretion” to admit the evidence, despite the use of the permissive formula in the opening words of the provision that it “may refuse” to admit the evidence in that event.” 29. In Weir at paragraphs 38 and 46 the court gave guidance on how the issue under s. 101(3) is to be approached by a balancing exercise; in Edwards and Rowlands at paragraph 82, the importance of the broad nature of the judge’s function was emphasised and the undesirability of descending into satellite litigation. However, for the reasons we have given we consider, unlike the court in Weir (whose attention was not drawn to Chalkley & Jeffries ), that there is no difference between that section and s.78(1) of PACE and the guidance should be the same. 30. We have carefully considered the potential effect of the evidence on the fairness of the proceedings and the undesirability of the jury having too many other matters to consider as against the powerful evidence in relation to the issue as to who committed the acts charged in the various counts. We consider the judge was right to decide to admit the evidence and that he correctly performed the balancing act. It was powerful and important evidence which in our judgment did not in any way affect the fairness of the proceedings. (vi) Did the jury need help in the summing up as to how to use this evidence? 31. As this court observed in R v Hanson [2005] EWCA Crim 824 ( [2005] 2 Cr. App. R. 21 ) and in subsequent decisions, particularly R v Edwards; R v Fysh at paragraphs 3 and 77, Highton [2005] EWCA Crim 1985 ( [2006] 1 Cr App R 7 ) at paragraphs 11 and 38-43, R v Edwards and Rowlands at paragraphs 1(ii) and 1(iv) and MM [2006] EWCA Crim 2317 at paragraph 14, it was important to consider, when evidence was admitted under the bad character provisions, what help by way of any directions needed to be given to the jury. The bad character provisions are most commonly used to admit evidence of previous convictions and, following the decision in Hanson, the Judicial Studies Board have provided guidance in relation to the directions to be given in such a case. Those directions primarily deal with the evidence which is relevant to propensity. 32. But as the decisions of this court indicate, the important question that a court must consider, when deciding what help may be need to be given to the jury in the summing up, is the relevance of the evidence which was admitted. If the evidence has been admitted for a particular purpose, the jury may, depending on the circumstances, need to be told how they should use that evidence and the issue to which it goes. 33. Furthermore, as is clear from the decision of this court in Highton at paragraphs 9 and 10, evidence admitted through one gateway can be used, once admitted, as relevant evidence on other issues. Moreover, as this court emphasised in Chopra [2006] EWCA Crim 2133 at paragraph 14, the provisions of the Act also have to be brought into account when considering directions on cross-admissibility of evidence on one count in relation to other counts. In short, when a court is dealing with evidence admitted under the “bad character” provisions, the relevance and purpose for which the evidence is being used by the end of the trial should be clear and, where appropriate, a direction in simple and clear terms given as to its relevance and the use the jury may make of it. 34. In the present case, the prosecution did not rely upon the cross-admissibility of evidence between one count and the other. A direction was given by the judge to treat each count separately. No criticism was made of the judge in this respect. Nor did the purpose for which the evidence was admitted change; it remained evidence that went to the issue of whether it was the appellant or some other person who had committed the offences charged. 35. The judge considered, prior to summing up, the nature of the direction to be given and it was raised with counsel. It is clear from the summing up that the judge considered that the appropriate direction he should give was one in relation to circumstantial evidence. Before referring to the further evidence in his summing up, he referred to it as “background and circumstantial evidence produced by the prosecution.” Much earlier in his summing up he had given a direction in relation to circumstantial evidence in terms based upon the guidance given by the Judicial Studies Board. He said, “This simply means that the prosecution is relying upon evidence of various circumstances relating to the charges and to the defendant that you are dealing with, which the Crown say, when taken together, will lead to the sure conclusion that it was that defendant who committed the offence. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case.” 36. It was submitted to us on behalf of the appellant that the judge should have told the jury that the evidence in question was evidence which the prosecution sought to rely upon to prove that it was the appellant who had committed the offences in question and not some other person; that the jury should first consider in respect of each piece of that evidence whether they were sure that it was the appellant who had been involved and it was only if they were sure that they should use that material in considering whether it was the appellant who had committed each of the offences with which he was charged. 37. In our judgment the learned judge should have set out in clear and simple terms the relevance of the evidence of other conduct and the way in which the jury should have approached it; this could have been done in a simple sentence or two. However, in our view, there can be little doubt that at the end of a trial extending over two months the jury had at the forefront of their minds the relevance of the other evidence and the use they could make of it – namely to show that it was the appellant who was engaged in the offences charged and that it was not some other person purporting to be him. That that was the issue was also clear from the general directions given in the summing up; the judge told the jury that they had to be sure of the reliability of that other evidence before they could use it in determining the appellant’s guilt of the offences charged. 38. It was also submitted to us on behalf of the appellant that the judge should have given a specific direction that the jury were not to use the evidence of the other conduct as evidence of propensity. It was submitted that a jury might feel that if they heard evidence of misconduct in relation to other matters they might consider that this showed the appellant was someone who is engaged in criminal activity and convict him on that basis. 39. We do not consider that a direction in such terms was either appropriate or necessary. There was no doubt that the person who was in fact engaged in the conduct specifically charged in the differing counts in the indictment was guilty of the offences; the issue in the case was one of identity, not propensity. Moreover, the judge did in fact give a good character direction, as the appellant had no previous convictions. 40. We therefore consider, approaching the issues on the basis of the six questions, that the judge was clearly correct in admitting the evidence. Although the judge should have given a simple and brief direction on the use the jury could make of the further evidence, in our view, it must have been very clear to the jury the issue to which that evidence went and that therefore the failure of the judge to give a specific direction did not make the conviction unsafe. This ground of appeal therefore fails (2) Was a Brown direction on unanimity necessary in relation to the forgery counts? 41. In counts 1, 10 and 11 the indictment charged the appellant under section 1 of the Forgery and Counterfeiting Act 1981 of making or procuring the making of a false instrument; in count 1 it was the identity card, in count 10 a passport and in count 11 a certificate of British naturalisation. The particulars to each of the counts were in the same form; taking Count 10 as an example, the particulars stated: “Cornel Tirnaveanu, on a day between 1 st day of January 2003 and the 27 th day of November 2003 made or procured the making of a false instrument, namely a document purporting to be a British passport, in the name of Monica Halarescu, with the intention that she or another should use it to induce somebody to accept it as genuine and by reason of so accepting it to do some act, or not to do some act, to their own or another person’s prejudice.” 42. We were told that the prosecution framed the particulars in that way, as it was unclear to them whether the appellant had been the principal offender by making the false instrument or a secondary party by procuring the making of it. It was submitted by them that the different ways of committing the offence were properly joined in the indictment on the basis of the decision in Gaughan [1990] 155 JP 235 . 43. It was not disputed by the appellant that it was possible to join in the same count the allegation that the appellant had acted either as the principal in making the false passport or as a secondary party in procuring it, but contended, however, that this was a case when a direction should have been given of the kind set out in R v Brown (K) (1984) 79 Cr App R 115 as to the necessity of the jury being unanimous as to whether he was a principal or secondary party. The prosecution contended that such a direction was not necessary. 44. In Brown , the court made clear it was a fundamental principle that in arriving at their verdict, the jury, even if they were not agreed as to part of the evidence, had to be unanimous that each ingredient necessary to constitute the offence had been established. The position was summarised by Eveleigh LJ at page 119: “Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to majority direction). 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.” 45. It was submitted that, as it was an essential ingredient of the offence that the appellant had either made the false instrument or had procured the making of the instrument, the jury had therefore to be agreed as to which it was. 46. We do not accede to that submission. Where a person is indicted both as a principal and as a secondary party and the prosecution cannot say which, then the jury is entitled to convict if they are satisfied that he committed the offence as a principal or, if he did not, he was a secondary party (who procured or encouraged the commission of the offence). They can do so only if there is no relevant or material difference in relation to the issues between these alternatives. A Brown direction is in such circumstances not necessary. This it seems to us follows from the decision in R v Giannetto [1997] 1 Cr App R 1, where a defendant was charged with killing or procuring the killing of his wife. After an extensive review of the authorities, Kennedy LJ giving the judgment of the court concluded at page 8: “Having considered the authorities with some care we are satisfied that in the circumstances of this case the trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that if he was not the killer he at least encouraged the killing, and accordingly this ground of appeal fails. There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea , by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet. Of course, if (as will very often be so) the Crown nail their colours to a particular mast, their case will, generally, have to be established in the terms in which it is put. Our judgment should give no encouragement to prosecutors casting around for alternative possibilities where the essential evidence does not show a clear case against the defendant. But the facts of the present appeal are by no means an instance of that. 47. In reaching its decision, the court referred, with approval, to a comment in the Criminal Law Review by the late Professor Sir John Smith QC at [1990] Crim.L.R. 881 on Gaughan , the case to which we referred at paragraph 42: “It is fundamental that the defendant should be told as precisely as possible what he is alleged to have done and that he should not be charged with doing one thing and convicted of doing something else. There will be occasions, however, when it is impossible to specify the mode of participation before the trial and where the case may have to be left to the jury on the basis that the defendant was either a principal or an accessory. It has long been established that this is permissible: Swindall v. Osborne (1846) 2 C. & K. 230.” 48. However, as is illustrated by the two cases to which we were referred by the appellant, a Brown direction may be necessary where there are two or more clear alternatives open to the jury where there is a relevant or material difference as to the issues and therefore the basis on which the jury might convict: i) In R v Carr [2000] Cr App R 149 , it was the prosecution case that the defendant had either karate kicked the deceased or struck him with his fist. On the facts of the case, if the crucial blow was the punch, then the issue for the jury was whether it was a punch but if it was the karate kick, the issue was one of identification. The Court concluded that in the circumstances the judge should have told the jury that they must reach a unanimous verdict on the deliberate act which they found proved and the unlawfulness of the act: “There was in our judgment a real risk that some jurors might have found the defendant to have kicked the deceased and others found him to have delivered a punch, feeling themselves entitled to convict because the judge had told them that the defendant could be convicted on either basis. Had that happened there would have been six jurors not satisfied that the defendant had delivered the fatal kick and six jurors not satisfied that the deceased had been felled by a punch by the appellant. The absence of such a direction on the facts of this case was in our judgment a fatal flaw and we consider that that real risk existed. We wish to make it plain that we are not seeking to lay down any general rule. There will often be minor differences between the facts alleged and the evidence given by various witnesses, and there is no need for agreement between all jurors on fine factual differences. Here, however, the difference between the two forms of assault did not depend on fine factual differences, but on a stark difference in the evidence of witnesses describing the two events, those two forms of assault giving rise to very different defences.” ii) In R v D [2001] 1 Cr App R 13 , a defendant was charged with indecent assault on various occasions. The counts particularised the different occasions, but not the four different ways in which the indecent assaults were said to have happened on some or all of the occasions. No Brown direction was given. As the court pointed out, the failure opened up the possibility of a conviction on one or more counts when not only might juror A and juror B have differed in their view as to what had happened on the particular occasion represented by the count, but the view of juror A as to what occurred might relate to a time or occasion different from that on which the view of juror B was based. 49. In our view this was a case where there was no difference in the issues or the defence to the charges under counts 1, 10 and 11; the issue was who made or procured the making of the instrument and in addition, in relation to Count 1 whether there was a person called Denise Dupont. This was not a case where there were fine factual differences or other relevant difference between the alternatives where the jury could disagree as to the basis on which they might convict. As between the two alternatives of principal and secondary party, the position was that, if it was not the first alternative – making the false instrument- then it must be the second - procuring the making. There was no relevant difference in these alternatives. In such circumstances therefore there was no need for unanimity as to which of these alternatives it was; a Brown direction was not necessary. In our view this was a case which fell within the principles set out in Giannetto. The difference in the basis for conviction was immaterial for the reasons fully explained by the late Professor Sir John Smith QC in an article in the Criminal Law Review , Satisfying the Jury [1988] Crim LR 335, referred to recently by this court in R v Morton [2003] EWCA Crim 1501 . He took the facts of Stapylton v O’Callaghan [1973] 2 All ER 782 as an illustration of the applicable principle: “But the hypothetical case was put, suppose half of a jury were satisfied that the defendant was the original thief and half satisfied that he was the subsequent receiver.” It is now quite impossible to say that the jury is satisfied that he was the thief on occasion (a); and equally impossible to say that it is satisfied that he stole on occasion (b). Indeed, it follows by necessary implication that six jurors are satisfied that he was not the thief on occasion (a); and six are satisfied that he did not steal on occasion (b). The case is, however, distinguishable from that which arose in Brown . The jurors are all presumably satisfied that the property was stolen by someone on occasion (a) and that the defendant was soon afterwards found in possession of it. They are all satisfied as to the same primary facts. The whole jury has dismissed any innocent explanation of the incriminating circumstances the defendant may have offered and is satisfied that he acted dishonestly in the matter. It seems to follow that the jurors who are satisfied beyond reasonable doubt that he stole on occasion (a) are also satisfied that, if they are wrong about that, he stole on occasion (b); and vice versa. The whole jury is satisfied that he stole the property in question either on occasion (a) or on occasion (b). The situation is significantly different from Brown . The jurors there could not say, "But if deception (a) was not proved, then deception (b) was." It is true that the prosecution have failed to satisfy the jury as to which of two possible occasions was the occasion of the theft but it seems not unreasonable to regard that matter as immaterial. This, indeed, is the situation in Stapylton v. O'Callaghan itself. Professor Sir John Smith QC concluded: “It is submitted that the principle stated in Brown is right and of general application. It should not, however be stretched to situations like that in Stapylton v. O'Callaghan where, as demonstrated above, it does not properly apply. It does apply, however, when the prosecution allege more than one factual basis for the crime charged and it is not possible to say, "If it was not the one, then it must have been the other." When Brown applies then, it is submitted, the jury should always be directed that they must all be satisfied as to the one basis or all satisfied as to the other, or both. In More ( [1988]1 WLR 1578 ), having stated the requirement of unanimity, Lord Ackner added: "It is equally essential that a jury should be directed in a manner that is easily comprehensible and devoid of unnecessary complications." No one could quarrel with that but the question remains, what is an unnecessary complication? Any complexity which is necessary to enable the jury to understand that they must be unanimous on any issue on which the law requires unanimity is a necessary complication.” 50. For these reasons therefore the second ground of appeal also fails. (3) The validity of count 12 - the charge of facilitating illegal entry 51. Until 10 February 2003, s. 25(1) of the Immigration Act 1971 provided: “Any person knowingly concerned in making or carrying out arrangements for securing or facilitating – (a) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an illegal entrant; (b) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an asylum claimant; or (c) the obtaining by anyone of leave to remain in the United Kingdom by means which he knows or has reasonable cause for believing to include deception, shall be guilty of an offence, punishable on summary conviction with a fine of not more than the prescribed sum or with imprisonment for not more than six months, or with both, or on conviction on indictment with a fine or with imprisonment for not more than ten years, or with both.” 52. With effect from 10 February 2003, s. 143 of the Nationality Immigration Asylum Act 2002 substituted a new s. 25 replaced s.25(1) and provided by the new (1) and (2): “(1) A person commits an offence if he – (a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union, (b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and (c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union. (2) In subsection (1) “immigration law” means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to – (a) enter the State, (b) transit across the State, or (c) be in the State.” 53. The penalty under the original s. 25 was 10 years; under the section 25 substituted from 10 February 2003, the penalty was 14 years. 54. Count 12 on the indictment charged the defendant with facilitating illegal entry into the United Kingdom contrary to s. 25 of the Immigration Act 1971 . It gave the following particulars of the offence: “Cornel Tirnaveanu between the 1 st day of January 2003 and 27 th day of November 2003 was knowingly concerned in making or carrying out arrangements for facilitating the obtaining of leave to remain in the United Kingdom by Monica Halarescu by means which he knew to include deception, namely by supplying her with a false British passport and a false certificate of British naturalisation.” 55. As can be seen from the wording of the indictment the particulars of the offence related to the way s. 25 was framed prior to 10 February 2003, but the appellant was charged with an offence between 1 January and 27 November 2003. After 10 February 2003 the offence charged was different and therefore the particulars should therefore necessarily have been different. 56. If Parliament had, instead of substituting provisions of s. 25, created a different numbered section, there should have been no confusion. One count would have charged the activity under the old provision and another count would have charged the activity under the new provision. The confusion that seems to have arisen in this case is because the section number remained the same but the offence was changed. That makes no difference to the principle involved. The alleged activity prior to 10 February 2003 should have been charged in one count and the activity after 10 February 2003 should have been charged in a different count, as it would constitute a different offence. A count spanning the period and charging in one count two quite different offences was impermissible. 57. In Pritchett & Langston [2007] EWCA Crim 586 , an indictment charged the defendant with keeping a brothel contrary to s.33A of the Sexual Offences Act 1956 between 5 October 1998 and 30 September 2005; s.33A of the Sexual Offences Act 1956 was added to that Act by s.53 of the Sexual Offences Act 2003 and only came into effect on 1 May 2004. The indictment therefore charged the two defendants over part of a period where the offence with which they were charged was not an offence at law. The court held that, although the indictment gave rise to an irregularity, the indictment was not a nullity as, if the prosecution could prove the commission of the offence between 1 May 2004 and 30 September 2005, the defendants could be convicted under the indictment. The court considered that there was sufficient evidence which had enabled the prosecution to do this. In our view the present case is very different in the way in which the indictment was framed for the reasons we have set out. Furthermore the prosecution did not suggest that they could in the present case prove that an offence had been committed on the basis set out in Pritchett and Langston. 58. We will allow the appeal on count 12 on this ground and quash the conviction on that count. We should add that other grounds were advanced in relation to this count, including the failure to give a direction on the meaning of the words “leave to remain”. No such direction was given. If count 12 had not suffered from the deficiency to which we have referred, there would have been a serious issue for our consideration as to whether the failure to give such a direction made the conviction unsafe, but it is not in the circumstances necessary for us to determine the point. Conclusion 59. We have considered the overall safety of the convictions and in particular the approach the jury may have followed which resulted in the acquittal on Count 7. We consider that the convictions are safe, except that on Count 12 where the indictment charged the appellant in an impermissible manner; on the other counts on which he was convicted there was compelling evidence which underpins the jury’s verdict. In the result, therefore, we consider that the conviction on count 12 must be quashed, but the appeal on the other counts is dismissed. As the sentence on count 12 was concurrent, this makes no difference to the overall term of imprisonment which the appellant must serve.

2007_05_24-1123.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1239/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1239

abccdeac7410eb8f4a4875926da1825bfc9847c6ff87f76d886017cc85bb8678

[2022] EWCA Crim 1794

EWCA_Crim_1794

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 1794 No. 202200437 A4 Royal Courts of Justice Tuesday, 13 September 2022 Before: LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE HENSHAW REX V BABAJIDE ORIYOMI OSHOSANYA __________ 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 _________ DR P FIELDS appeared on behalf of the Appellant. MS S QUINTON-CARTER appeared on behalf of the Respondent. ________ JUDGMENT MR JUSTICE HENSHAW: 1 This is an appeal from the imposition of a restraining order following acquittal pursuant to s.5 A of the Protection from Harassment Act 1997 . 2 The appellant, who is 38 years old, was acquitted on 14 January 2022 in the Crown Court at St Albans of one count of stalking involving fear of violence or serious alarm or distress, contrary s.4 A of the Act , the prosecution having on the fourth day of the trial decided to offer no evidence. 3 After hearing submissions, the judge imposed a five-year restraining order prohibiting the appellant from contacting his wife, the complainant, directly or indirectly, save via solicitors or social services for the purposes of child contact; going to any location where he believed or suspected her to be; contacting directly or indirectly the complainant's sister or her husband; and going to the sister's address in Letchworth. 4 The complainant's evidence was that she and the appellant had been in a relationship for ten years and had been married for five of those. They had two children together, now aged six and two. On 8 December 2019 she fled the family home with their children because she had experienced aggressive behaviour and violence from the appellant. The complainant said that on one occasion the appellant had threatened to kill her, on another he threatened to murder her family in front of her, and on another occasion he told her that if she called the police they would let him go and he would come after her. 5 The week before she left, the complainant and the appellant had had an argument, during which she said he hit her on the head while she was carrying their young baby. During the same week the appellant got angry during an argument, when the complainant slammed the bathroom door in frustration. He threatened, she said, to break her neck if she broke anything in the house, and said he would kill all of her family, repeatedly banging on the door trying to get into the room where she had locked herself and her young son. 6 The complainant said that on 7 December 2019 the appellant became angry when the complainant told him he was not welcome to spend Christmas with her family, because of things he had said. The complainant then took their son and went downstairs into the kitchen, and the complainant called the police. The appellant returned and took the complainant's phone from her, at this point carrying a knife or meat cleaver in his hand, although that evidence was contested. The appellant prevented the complainant from calling the police and told her to leave the house. When she refused to leave, the appellant pushed her on the head with an open palm and blocked her from entering the living room where the children were. The complainant drove to the police station. She was able to return home, but the police advised her to leave for her safety. The complainant followed this advice, moving to live with her sister in Hertfordshire. 7 There was evidence from the complainant's nephew that two or three weeks later the appellant went to his mother-in-law's address looking for the complainant and their children. He was said to have been not violent or threatening but persistent and determined to find where his wife and children were. 8 On 13 December 2019 the complainant received an email from an email address with no identifying name, but evidently from the appellant, although he was at the time on police bail, one condition of which was not to contact her. 9 In April 2020, now living in a woman's refuge, the complainant received a call from a private number, which turned out to be from the appellant, asking after her and the children. She told the appellant not to call her again. Thereafter, the complainant received daily calls from a private number. She was anxious because she did not want to answer calls from private numbers, but knew her support workers called every day to check her welfare. On the occasions when she answered these calls, it was the appellant speaking about how the children needed both their parents. 10 The complainant said she changed her phone number, but then received a series of six emails from the appellant between 5 May and 20 June 2020. She was distressed by receiving the emails and their religious tone, which she felt to be manipulative. It appears that the police bail condition had fallen away by this point. 11 On 23 June 2020 the appellant visited the complainant's sister's home, saying he wanted to see his children. The sister eventually persuaded the appellant to leave. She accepted that he had been calm on this occasion. 12 On 3 July 2020 the appellant approached the complainant while she was with her non-verbal autistic daughter, visiting a specialist school in Stevenage that was being considered for the daughter. The appellant picked the daughter up and gave the children presents. (The appellant's case is that this visit occurred at the school's invitation.) 13 On 5 August 2020 the complainant's sister was at home when the appellant suddenly banged on the window at the side of their house and beckoned her and her husband to come out. Her evidence was that they also heard him banging hard on the door, almost as if he were trying to break it down. The husband eventually did go outside and a heated argument seems to have occurred, of which the sister took a video recording. 14 In September 2020 the complainant received documentation from the Family Court about child arrangements, which we understand remain pending. 15 The trial began on Tuesday, 11 January 2022. There was discussion between the parties on the first day about the possibility of resolving the case by means of a restraining order, which at that stage the defence indicated they would not contest. During the course of the evidence, the judge expressed concerns in the absence of the jury about whether the prosecution case of stalking could be made out. Thereafter, on Thursday, 13 January, the Crown put the court on notice that a restraining order would be sought if the Crown decided to offer no evidence, and the defence indicated that that would be contested. 16 On Friday, 14 January 2022, shortly before the lunch break, the Crown indicated that it would offer no evidence, having put the defence during the morning on notice of that proposed course and of the intention to seek a restraining order. The judge proceeded to hear argument and to make the restraining order. It is common ground that the defence did not request an adjournment or time to take further instructions, nor apply for the court to hear evidence from the appellant. 17 In deciding to impose the order, the judge referred to the complainant's evidence about events that had occurred before their marriage ended and led her to leave the appellant and the family home; the appellant's visit to his mother-in-law's address; his emails to the complainant and attempts to contact her by phone and the distress that this caused her; and his two visits to the home of the complainant's sister and her husband. The judge noted that whatever the appellant's thoughts might be, he was clearly a volatile character, matching the complainant's statement that he could change and become aggressive. The judge considered that the appellant's actions amounted to harassment, and the evidence as a whole satisfied him that it was necessary to protect the complainant, her sister and her brother-in-law. The restraining order would be for a period of five years, although if no problems occurred then the appellant would be able to apply to vary the order or have it lifted. 18 The appellant appeals, by leave of the single judge, on the grounds that: (i) There was no course of conduct, involving at least two events, amounting to harassment of the complainant's sister or brother-in-law (see Caurti v DPP [2001] EWHC (Admin) 867); no evidence of aggression directed at the sister, as opposed to her husband; and no evidence that either of them feared that a future event would occur. (ii) There was no evidence that the complainant feared that an event would definitely occur: a restraining order could not be made to protect a person from an event they only feared might happen. (iii) In order to ensure equality of arms and a fair trial, the judge should have allowed the appellant to give oral evidence pursuant to s.5 A(2A) of the Act before considering making a  restraining order. Sufficient notice of any such order needed to be given to the defendant: see R v K [2011] EWCA Crim 1843 para.14 and R v Trott, Peter [2011] EWCA Crim 2395 para.11. For example, Dr Fields noted in oral submissions today that the appellant might have given evidence that he was now in a relationship with someone else, thus, he submitted, making it less likely that he would seek in future to make contact with the complainant. (iv) The sentence imposed was manifestly excessive in that the scope and duration of the order did not bear any relation to the circumstances of the original alleged offence. 19 We have heard oral submissions from counsel, Dr Peter Fields for the appellant and Sophie Quinton-Carter for the Crown, both of whom appeared below, for which submissions we are most grateful. 20 We consider the first two grounds of appeal together. Under s.1(1) of the Act read with s.7(3) , the substantive offence of harassment requires a course of conduct amounting to harassment on at least two occasions in relation to the relevant person. However, a restraining order under s.5 A(1) of the Act does not require proof that the substantive offence has occurred. It requires only that the court considers it necessary to make an order "to protect a person from harassment by the defendant". 21 The appellant cites R v Qosja, Robert [2016] EWCA Crim 1543 para.35 where it was held that an offence of stalking under s.4 A(1)(b) (i) of the Act requires proof of conduct that causes a person to fear on at least two occasions that violence "will" not "might" be used against them. The appellant submits that the same must apply when considering whether there fear of alarm and distress has been caused, that being pursuant to s.7(2) a form of harassment, such as to justify a restraining order. 22 In our view, however, the question under s.5 A does not directly concern the nature of the subjective fears of the person or persons whom the proposed restraining order is to protect, or require proof of actual fear of harassment on their part. Rather, it requires the court on the evidence to consider the restraining order necessary for their protection. 23 The relevant question is thus, simply, whether the evidence establishes a risk of future harassment, making it necessary to impose a restraining order. That is the question the judge addressed, and in doing so he made, in our judgment, no error of principle. 24 For completeness, we note that in the present case the evidence of the complainant, her sister and her brother-in-law in any event made clear that the appellant's conduct had in fact led them to fear harassment. The complainant, for example, said in her oral evidence that she felt scared to go anywhere in case she bumped into the appellant, whom she regarded as unpredictable, and that she had fled from him because he was violent towards her. Her evidence also included the points that she had concerns about the appellant knowing where she was living, and, of course, that she had ultimately ended up going to a women's refuge. Similarly, the oral evidence given by the complainant's sister made clear her own concerns about the appellant's aggression, that being reflected also in her and her husband's written statements, albeit those were not adduced at trial. 25 As to the third ground, s.5 A(2A) of the Act provides that in proceedings under that section, both the prosecution and the defence may use as further evidence any evidence that would be admissible in pursuit of an injunction under s.3, i.e. an injunction to prevent a defendant from pursuing any conduct that amounts to harassment. The course of events at trial in the present case, which we outlined earlier, indicates that the defence had the opportunity to take instructions and to lead evidence from the appellant, but did not apply to adduce any such evidence. As the Crown points out, the judge nonetheless had the benefit of knowing the appellant's position from his careful cross-examination of the three witnesses who gave evidence, his three full comment police interviews and a full defence statement, albeit those matters were not evidence as such. In all the circumstances, we do not consider that the judge erred in any way by making a restraining order without having oral evidence from the appellant. 26 Finally, as to the length of the restraining order, on the evidence before the judge we feel unable say that the five-year duration was manifestly excessive or involved any error of principle. The question of child contact will no doubt be resolved in the Family Court proceedings; and the appellant will have the opportunity to apply to vary or discharge the restraining order should events make that appropriate. 27 For these reasons, we do not consider any of the grounds advanced to have merit, and therefore we will dismiss the appeal. __________

2022_09_13-5432.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1794/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1794

031295b3b4439a5cb49117f6340a9ad197d6b5682c9cc6a55ee492f07a6d6439

[2011] EWCA Crim 727

EWCA_Crim_727

crown_court

Neutral Citation Number: [2011] EWCA Crim 727 Case No: 201003745 D3, 201003192 D3, 201000475 D3, 201003956 D3, 201000460 D3, 201000461 D3, 201000463 D3, 201000478 D3, 201001256 D3, 201003196 D3, 201003370 D3, 201004717 D3, 201000465 D3 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Liverpool Crown Court on 18th May 2010 before HHJ Brown Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/03/2011 Before : LORD JUSTICE PITCHFORD MR JUSTICE TREACY and HHJ KRAMER QC - - - - - - - - - - - -

Neutral Citation Number: [2011] EWCA Crim 727 Case No: 201003745 D3, 201003192 D3, 201000475 D3, 201003956 D3, 201000460 D3, 201000461 D3, 201000463 D3, 201000478 D3, 201001256 D3, 201003196 D3, 201003370 D3, 201004717 D3, 201000465 D3 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Liverpool Crown Court on 18th May 2010 before HHJ Brown Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/03/2011 Before : LORD JUSTICE PITCHFORD MR JUSTICE TREACY and HHJ KRAMER QC - - - - - - - - - - - - - - - - - - - - - Between : LITWINSKI & ORS Appellants - and - CPS Respondent - - - - - - - - - - - - - - - - - - - - - Appellants: Roderick Johnson QC and Jimmy Vakil (instructed by Messrs Golden, Solicitors) for Michael Hailwood Tayab Khan (instructed by Middleweeks, Solicitors) for Karol Siedja James Lake (instructed by Tates, Solicitors) for Delroy Powell Mark Stephenson (instructed by Pearson Fielding, Solicitors) for James Boyle Christopher Harding (instructed by TNT Kelly, Solicitors) for Krysztof Kownacki Mark Stuart (instructed by Messrs Furley , Solicitors) for Natalie Nicholls Jason Smith (instructed by Burton Copeland, Solicitors) for Karen Forshaw Tom Mitchell and Sarah Holt (instructed by Forbes, Solicitors) for Nyome Hue Richard Gray (instructed by The Registrar ) for Majeed Shah Gordon Ross (instructed by Blackfords, Solicitors) for Jason Bowley (appeared pro-bono) Andrew Smith and Stephen McNally (instructed by Morgan, Brown & Cahill, Solicitors) for Lucasz Litwinski Tomasz Wisniewski and Mohammed Bawla – were unrepresented Respondent: Brian Cummings QC and Mark Ainsworth ( instructed by CPS ) Hearing date : 9 March 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. On 9 March 2011 the court had before it the appeals against sentence with leave of the single judge of the following appellants: Lucasz Litwinski, Karol Siejda, James Boyle, Krzysztof Kownacki, Majeed Shah, and Nyome Hue. The court considered the renewal of applications for leave to appeal against sentence following refusal by the single judge from the following applicants: Tomasz Wisniewski, Delroy Powell, Mohammed Anwer Bawla, Natalie Nicholls, Karen Louise Forshaw, Jason Michael Bowley and Michael Hailwood. The issues in the appeal 2. The court will arrange its judgment as follows. We shall describe in general terms the criminal enterprises which give rise to these appeals and applications. We shall identify previous decisions of the court to which we have been referred and assess their effect upon the issues which arise in the present cases. Finally, we shall consider each appeal and each application in more detail by category of participant. These appeals and applications raise four essential issues. First: what was the appropriate starting point for those at or near the top of the criminal organisation? Second: where within the organisation should each appellant or applicant be placed? Third: what was the appropriate starting point for each appellant or applicant? Fourth: what was the appropriate discount for pleas of guilty? The criminal enterprises proved 3. At the heart of the criminal activity were four conspiracies charged in counts 1-4 of an indictment settled at Liverpool Crown Court: Count 1: Conspiracy between 1 September 2006 and 19 October 2008 to supply controlled drugs of class A namely cocaine and/or MDMA contrary to section 4(1) (b) Misuse of Drugs Act 1971 . Count 2: Conspiracy between 1 September 2006 and 19 October 2008 to supply controlled drugs of class C namely cannabis contrary to section 4(1) (b) Misuse of Drugs Act 1971 . Count 3: Conspiracy between 1 September 2006 and 7 August 2007 to transfer prohibited weapons in contravention of section 5 Firearms Act 1968 . Count 4: Conspiracy between 1 September 2006 and 7 August 2008 to transfer prohibited ammunition in contravention of section 5 Firearms Act 1968 . Substantive offences were charged in counts 5 - 9 of the indictment to some of which we shall need to refer later in this judgment. Tiers of involvement 4. The hub of the conspiracies was Amsterdam. Between the autumn of 2006 and the autumn of 2008 huge quantities of drugs were sourced for transfer from South America, usually to Amsterdam, for onward importation to the UK, but sometimes by direct importation to the UK. Importations to the UK took place by two methods, first by the use of specially adapted vehicles using cross-channel ferries and, second, by the use of human couriers or “mules” who were required to ingest quantities of 10g bullet-shaped pellets of cocaine for travel by air or road and ferry. 5. Three men were by common consent in charge of the operation in Amsterdam during their periods of involvement and represent the top tier of the organisation: Dion Lee from Lancaster, Michael (or Marcus) Williams from Croydon and Michael Hailwood from Liverpool. Hailwood is an applicant. Lee is at large. Williams is serving a sentence of imprisonment in Holland. They spent most of their time in Amsterdam. They were the key players in sourcing the drugs and arranging their onward transmission from South America to Croydon in London, to Preston and Lancaster in Lancashire, to Leeds and Bradford in Yorkshire, and to Arbroath in Scotland. 6. The second tier of involvement concerned those who organised for their Amsterdam principals the movement of drugs from South America to Amsterdam or from Amsterdam to the UK. Those involved at this level included Jason Bowley, Tomasz Wisniewski and Roman Bloch. 7. The third tier of involvement was located in the UK centres of distribution. It was necessary for cash to be moved to Amsterdam to pay for the drugs and for the wholesalers in the UK to arrange collection. Ivan Hue was the principal organiser of the Lancashire connection based in Preston although in Lancaster the principal players were Mohammed Bawla and Majeed Shah. Ivan Hue’s network in Preston included his sister, Stella Taylor. In her turn Stella Taylor recruited her sister Nyome Hue, her close friend Natalie Nicholls and Karen Forshaw. 8. Head of the Yorkshire connection was Delroy Powell. 9. In Arbroath the chief organiser was Edward McIntosh. He managed a group comprising Leslie and Martin Graham, James Boyle, Lucasz Litwinski and Karol Siejda. 10. While there were separate destinations for the drugs in the UK there were frequent communications between the regions. They met with each other and in Amsterdam. 11. Tomasz Wisniewski recruited others to act as couriers including Wioletta Sadowska and Krzysztof Kownacki. Some of those recruited as couriers gained in status in the organisation. 12. Some of the important participants sentenced in respect of these matters who have either not sought leave to appeal or who have abandoned applications previously made are: Roman Bloch pleaded guilty on re-arraignment to count 1 and was convicted on counts 3 and 4. He was sentenced to a total term of 24 years imprisonment. Ivan Hue pleaded guilty on counts 1 and 2 and was sentenced to 24 years imprisonment. Stella Taylor was convicted on count 1 having pleaded guilty to count 2 and was sentenced to a total of 21 years imprisonment. Edward McIntosh pleaded guilty on re-arraignment to counts 1 and 2 and was sentenced to a total of 16 years imprisonment. Leslie Graham pleaded guilty on re-arraignment to count 1 and was sentenced to 14 years 8 months imprisonment. Martin Graham pleaded guilty to counts 1 and 2 and was sentenced to 11 years imprisonment. Scale of importations 13. Those selected to act as “mules” were nationals of East European countries. At least 70 inward journeys were made to the United Kingdom each one of which imported about ½ kilo of cocaine at 100% purity. The organisers were therefore responsible by this means for importing not less than 35 kilos of cocaine at 100% purity. There was a team of no fewer than 30 mules routinely employed for this purpose. 14. The second method of importation was by vehicle from Amsterdam, via sea crossings to the UK. It has not been possible to calculate with any precision the quantities of class A and class C drugs imported in this manner but the judge found that there were not fewer than 5 such journeys and probably 7. The quantities capable of transport by this means were substantially greater than by individual journeys made by the mules. 15. We shall describe the development of vehicle importation. The acquisition and movement of the vehicles demonstrates the closeness of the UK participants to the importations and to the co-operation between some of the UK distributors. Fiat Multipla ST51 CHH was purchased in Arbroath by McIntosh and Litwinski. It was registered to and insured in the name of Stella Taylor. Wisniewski flew to Manchester from Amsterdam and consulted Bawla and Shah who were also in contact with Ivan Hue and Dion Lee. Wisniewski drove the car to Holland where it was converted to a drugs carrier. Stella Taylor, Natalie Nicholls and Karen Forshaw flew to Amsterdam with cash. On 15 December 2006 they brought the vehicle back to the UK with a consignment of drugs on board. The vehicle was returned with cash to Holland in January by the same 3 women. On 11 January 2007 they returned with another consignment of drugs in a further Fiat Multipla, Y708 SSL. 16. On 6 August 2007 Wioletta Sadowska, recruited by Wisniewski from his village in Poland, and Krzysztof Kownacki were arrested on their arrival in the UK with ST51 CHH. A concealed compartment contained 7.35 kilos of cannabis and 5,100 tablets of MDMA. Relevant to counts 3 and 4, also recovered were 3 self loading Glock pistols, a self-loading Beretta pistol, two Ruger revolvers, an a Taurus revolver and 1,000 rounds of live ammunition. The volume and weight of contraband discovered at this seizure demonstrates the capacity of the vehicles to achieve substantial importations. This importation had been destined for Delroy Powell in Leeds. 17. Bawla and Shah arranged the purchase of W966 JSC from a dealer in Blackpool in October 2006. The next day they arranged its ferry crossing from Hull to Holland. There was much telephone traffic between the North West of England and the organisers in Holland. The vehicle was used to make an importation to Lancashire in November 2006. It was accompanied by Lucasz Litwinski and two other men. Telephone traffic indicated the involvement of Wisniewski, Bawla, Shah, Roman Bloch, Stella Taylor, Ivan Hue and Dion Lee. Wisniewski shadowed the vehicle. It was returned to Holland by the same crew. Litwinski then flew to Edinburgh with a mule (Wachowick) where he made contact with McIntosh and Dion Lee. 18. Y708 SSL was purchased in Arbroath in December 2006 by James Boyle and taken to Holland. It returned to the UK on 10 January 2007 accompanied by Stella Taylor, Natalie Nicholls and Nyome Hue. In February 2007 it was insured in the name of Roman Bloch and returned to Holland accompanied by telephone traffic between Bloch, Shah, Ivan Hue, Stella Taylor and Dion Lee. Bloch accompanied the vehicle on the ferry. On 4 August 2008 the vehicle was recovered by the Dutch police in Amsterdam when it was being driven by Hailwood. It was found to have a secret compartment identical to that found in ST15 CHH. The P&O ticket in the name of Bloch was still in the glove compartment. Beneath the rear seat was found a single bullet-pellet containing 9.68 grams of cocaine. Its manufacture was identical to samples recovered following the arrest of 2 mules, Kargul and Sabrovas who had previously arrived at Edinburgh airport having consumed 61 and 45 such pellets respectively. 19. Fiat Multipla X129 BUJ was purchased by Stella Taylor assisted by Nyome Hue, her sister, in December 2006. The car was registered to Taylor and later insured in the name of Bloch. The car was driven to Holland by Taylor and Demsie Hamilton accompanied by Nyome Hue. En route Taylor was in repeated contact with Dion Lee. The vehicle was found by the Dutch police at a lock-up garage in Amsterdam. It was detained on 14 March 2007. It had been stripped. When Taylor was informed that the vehicle had been seized she claimed to have sold it 2 weeks earlier to an unknown man. There followed calls from Lee to Taylor and on the same day Taylor travelled with Natalie Nicholls to Amsterdam. She (but not Taylor) attended the police compound with 3 men, one of whom was Lee. On the following day Wisniewski flew from Malta to Holland and contacted Taylor by phone. The vehicle was recovered by Taylor in July 2007. Hailwood made the arrangements for its collection by a transporter. 20. Fiat Multipla X342 MGA was purchased in December 2006 and driven to Holland. In November 2007 Michael Williams was in possession of the vehicle. 21. A Citroen C5 BAU2 9FT, Polish registered, was driven to the UK by Wioletta Sadowska and Krzysztof Kownacki on 25 January 2007. Cocaine had been concealed behind its sills in tubes which could be removed if the vehicle’s front wheels were placed in full lock. The drug was destined for Lancashire. Preparatory arrangements were made by Wisniewski, Taylor, Bloch and Dion Lee. The consignment was met by Taylor in Croydon. She maintained telephone contact with Dion Lee and her brother Ivan Hue. On her return journey to the North West with the drugs she was in contact with Bawla, Shah, and Ivan Hue. Bawla and Hue were in turn in touch with Lee. 22. On 26 March 2007 the same vehicle returned to the UK this time bearing drugs for Delroy Powell in Leeds. 23. A Citroen C5 HD51 HBE also intended for traffic to the UK was stop checked by the Dutch police in January 2007 accompanied by Wisniewski and Kownacki. In the event it was never used for importation. 24. In November 2006 Stella Taylor insured a Peugeot 206. The vehicle was driven to Holland 6 days later. En route Taylor was in contact by telephone with Ivan Hue and Dion Lee. In December 2006 she returned with another Peugeot 205 T356 FGD with a consignment of drugs. On the way to Lancashire she was in contact with Natalie Nicholls, Nyome Hue, Dion Lee and Ivan Hue. Ivan Hue was in turn in conversation with Lee, Bawla and Shah. 25. The prosecution case was that there were 5 importations by vehicles at least. The importations were preceded by what the prosecution called “cash runs” which involved taking money from the UK to Holland or transfers within the UK. The return journeys from Holland might involve mule runs supervised by the conspirators. One such run took place in October 2006 when Slawomir Szematowicz flew from Amsterdam to Manchester with Kownacki. The flight was booked by Kownacki using Mohammed Bawla’s home address. 26. On 8 March 2007 an important meeting took place between several players at the Toucan Hotel in Haarlem, Amsterdam. Present were Dion Lee, Michael Williams, Stella Taylor, Nyome Hue, Lucasz Litwinski, Tomasz Wisniewski, Wioletta Sadowska and Krzysztof Kownacki. Hailwood was nearby and in contact by telephone. During the meeting Lee made 6 calls to Delroy Powell. Two months later Powell visited Amsterdam twice within a period of 6 days. Guidance from the Court of Appeal 27. We are reminded that in Aroyewumi [1995] 16 Cr App R (S) 211 Lord Taylor CJ announced a development in the guidelines originating with Aramah [1982] 4 Cr App R (S) 407 and then Bilinski [1987] 9 Cr App R (S) 360 . At page 216 Lord Taylor said: “Accordingly, in our judgment, for the guidelines laid down in Bilinski in respect of class A drug importations, there should be substituted the following: where the weight of the drugs at 100% purity is of the order of 500 grams or more, sentences of 10 years and upwards are appropriate and where the weight at 100% purity is of the order of 5 kilograms or more, sentences of 14 years and upwards are appropriate.” In Attorney General’s References Nos 117 and 118 of 2005 ( Byfield and Swaby ) [2007] 1 Cr App R (S) 22 the court expressed the view that offenders who were convicted of conspiring to import 14.45 kilograms of cocaine at 100% purity should expect a sentence of not less than 20 years. The method used was similar to that employed in the current case. There were in all 6 consignments over a period of 12 months. The offenders were in charge of the operation and employed couriers to swallow the drugs for importation. Both offenders were of good character with consequential but limited personal mitigation. 28. In Lowe [2003] EWCA Crim 3182 Rose LJ, VP, said at paragraph 31: “31. ... We have considered a number of authorities in recent years ... no useful purpose would be served by a close analysis of the differing facts and circumstances of these authorities. What they show, relevant for present purposes, is that, first, this court has contemplated the possibility following a trial, of a sentence of 30 years imprisonment for a dominating mind in relation to conspiracy to import massive quantities of class A drugs; and, secondly, even if others were involved at a higher level, 24 years is not an inappropriate starting point for one ... playing a senior national and international role in relation to massive importations of heroin.” 29. In K [2003] 1 Cr App R (S) 6 at page 22 the court confirmed that in exceptional cases a starting point of 30 years or more is appropriate. 30. Other decisions to which the court has made reference include Attorney General’s References Nos 99-102 of 2004 ( Whiteway & Others ) [2005] 2 Cr App R (S) 82 at page 505, Brookhouse & Others [2004] EWCA Crim 3471 , Attorney General’s References Nos 5-8 of 2003 ( Davis & Others ) [2003] EWCA Crim 3185 , Attorney General’s Reference No 2 2006 [2006] 2 Cr App R (S) 617 , Kennedy & Morris [2006] EWCA Crim 435 and Tourh [2009] EWCA Crim 874 . 31. Sentences for the unlawful commercial supply of firearms to criminals will attract sentences even after pleas of guilty ranging from 9 years to an indeterminate sentence depending upon the quantity, the nature of the enterprise, the intention of the individuals and the consequences of supply: see Avis & Others [1998] 2 Cr App R (S) 178 and Wilkinson [2009] EWCA Crim 1925 . 32. We turn now to deal with the cases of the individual appellants and applicants. We shall begin with those at or near the top of the organisation. Tomasz Wisniewski 33. During the two year course of the conspiracy the applicant was in regular contact with the organiser in Amsterdam, Dion Lee; also with the major players in Lancashire and Scotland, and with the couriers. He acted as a link between the governing tier, those involved in the importations and senior members of the Lancashire connection. He also journeyed to Scotland. He was involved in several importations both by mules and with vehicles. He took part in the meeting at the Toucan Hotel. He shared a flat in Amsterdam with Michael Williams and Dion Lee. He was arrested in Poland under a European arrest warrant. He pleaded guilty at Liverpool Crown Court on 5 February 2009 to counts 1 and 2. On 5 May 2009 he pleaded guilty on re-arraignment to counts 3 and 4. He was sentenced by HHJ Mark Brown on 17 December 2009 to 16 years imprisonment (count 1), 8 years imprisonment concurrent (count 2), 7 years consecutive (count 3) and 2 years concurrent (count 4). 34. The judge found that the applicant had a very important role in the conspiracies as a trusted link man. He was personally involved in loading guns and ammunition and for making arrangements for their transfer to Leeds. He had recruited Roman Bloch and Wioletta Sadowska, the latter of whom made a statement implicating others. He travelled regularly between the United Kingdom and Amsterdam. Mr Wisniewski was informed by the judge that despite the late plea to counts 3 and 4 he would receive a significant discount. He was sentenced to 23 years imprisonment in all. 35. The applicant is aged 35. He has not previously been convicted in the United Kingdom and we know nothing of his position in his native Poland. It is probable that the judge took a starting point of 24 years for sentence on count 1 and gave the applicant full one-third credit. In our view, the starting point cannot be regarded as excessive for this level of offending. The judge, exceptionally because the applicant pleaded guilty on the day of trial, allowed a discount of 25% for the plea of guilty to count 3 indicating a starting point of just under 9 years. It is argued in writing on behalf of the applicant that since the importation on 6 August 2007 took place on the same occasion as the importation of firearms it was not appropriate to order the sentences to run consecutively; alternatively, the total should have been trimmed to give full weight to the principle of totality. We do not accept these submissions. The sentences imposed were principled and correct. The application is refused. Michael Hailwood 36. Michael Hailwood, who is now aged 39, pleaded guilty on re-arraignment to count 1 in the indictment. On 18 May 2010 HH Judge Brown sentenced him to 22 years imprisonment. It had been the prosecution case that in the early stages of the conspiracy the applicant had participated while on home leave from a sentence of imprisonment in Holland. However, the applicant pleaded guilty on the basis that he was not involved until his release on 25 February 2007. He disclaimed any involvement in the vehicle importations although it will be recalled that he was involved in the transport of one of the Fiat vehicles detained by the Dutch police. Hailwood’s role was to arrange and control the organisation of mules for importing cocaine from South America for onward sale in the United Kingdom. The judge drew attention to the quantity of drugs imported to the United Kingdom in this fashion, and to the fact that the applicant had boasted of his 80 lads in Liverpool and another 80 in London prepared to become involved in this trade, although he preferred to use East Europeans. The judge found that the applicant ran a network of at least 30 couriers. His organisation involved the provision of safe houses and shadows or minders for the mules. The mules themselves were putting their lives at risk in consequence of the applicant’s exploitation of young people who were desperate for money. Although the applicant had not been involved in firearms offences he was at the very top of the organisation of cocaine importation to the UK. Indicating that he would apply a 20% discount for his plea of guilty the judge imposed a sentence of 22 years suggesting a starting point of 27½ years. 37. Mr R Johnson QC submitted that the starting point was too high. In particular, there was at least a fledgling courier organisation before Hailwood was released from prison. It was accepted, however, that Hailwood commenced work with enthusiasm and rapidly promoted himself within the organisation. He visited South America on two occasions for 2 weeks and 10 days respectively. Bowley, who was recruited by Williams, worked for Hailwood. 38. Mr Johnson submitted that the discount of 20% was inadequate. Wisniewski, who had already pleaded to counts 1 and 2 in the indictment, was told by the learned judge that if he pleaded guilty on the day of his trial to counts 3 and 4, the firearms offences, he would receive a discount of 25%. Finally, Mr Johnson submits that no allowance was made for a period of 2 months which Hailwood spent in custody awaiting extradition. 39. In his sentencing remarks, the judge considered all significant matters (not including perhaps the period spent on remand in Holland) including Mr Johnson’s submission as to the appropriate discount. There were particular reasons why the judge was prepared to give a public indication to Wisniewski of an enhanced discount which did not apply to this applicant. Wisniewski had already pleaded guilty to counts 1 and 2 and would be receiving a consecutive sentence for the firearms offences. The judge had held himself ready to be persuaded that Hailwood should receive a greater discount than 20% but was not persuaded by Mr Johnson’s argument. In our view the extreme seriousness of this applicant’s position lies in the scale of the operation for which he was responsible for much of the period of the conspiracy and the corruption of others recruited to it. We see no justifiable complaint in respect of the starting point adopted by the judge, or in the discount made from it for a guilty plea, or the lack of an explicit allowance for the period of detention in Holland. The sentence passed not manifestly excessive. The application is therefore refused. Jason Bowley 40. Jason Bowley, now aged, 36 pleaded guilty at the PCMH on 13 November 2009 to count 1 of the indictment. He was sentenced by HHJ Brown to 15 years 4 months imprisonment. Mr Bowley was sentenced on the basis that he was not involved in vehicle importation. He had been recruited by Michael Williams in August or September 2007. The judge found that he quickly became a close associate both of Michael Hailwood and Michael Williams. He was their trusted assistant in the mules operation. He was entrusted with £25,000 to take to Argentina for the purchase of cocaine. He travelled in South America to set up arrangements for the movement of drugs and money. He was by virtue of his position close to the source of the drug. He participated for a period of 5 months. He would, the judge decided, receive full credit for his plea. 41. Twelve character references were handed to the judge from those who had known the applicant for a long period, some since he was a child. He had been a good friend, was well liked and had impressed others with his caring manner. While on remand he had enjoyed an enhanced status as a race relations representative. 42. It was submitted by Mr Ross that the judge must have taken a starting point of 23 years which made an insufficient distinction between the applicant and Michael Hailwood, his superior in the conspiracy, who was also involved for a long period of time. The starting point in Hailwood’s case was 27½ years. We accept Mr Ross’s submission that Bowley was not in the same category as Hailwood. He was however a fully trusted assistant who used the autonomy granted to him in South America and headed the Amsterdam organisation close to its source in Argentina. Bowley is responsible for a similar level of corruption of others in the responsibility he accepted. In the view of this court the nature of the activity in which the applicant was personally deeply involved makes personal mitigation of extremely limited value. We are un-persuaded that there was a significant inconsistency in the judge’s approach to sentence. This application is dismissed. 43. We turn next to consider the sentences of those who brought drugs into the United Kingdom. They are Lucasz Litwinski, Karol Siejda, Krzysztof Kownacki, Nyome Dawn Hue, Natalie Nicholls and Karen Forshaw. Lucasz Litwinski 44. Lucasz Litwinski is now aged 24. He pleaded guilty on 15 June 2009 to counts 1 and 2. The judge informed him that he would receive a discount of 27% against his sentence because he did not plead guilty at the first available opportunity (which would have been at the pre-trial hearing in April 2009 when the judge informed the defendants that the clock had started to run). Litwinski was sentenced to 15 years 4 months in respect of count 1 and 7 years concurrent in respect of count 2. The judge reflected the appellant’s basis of plea in his sentencing remarks. 45. Litwinski arrived in the UK in 2006. He met Edward McIntosh while looking for work in Holland. He was offered employment and accommodation in Scotland. Within a short time he became a mule making journeys between Amsterdam and Edinburgh on a number of occasions in late 2006. However, his role became more influential as time passed. He assisted in the purchase of vehicle ST51 CHH and made travel arrangements for the human mules. On 27 November 2006 he travelled in a Fiat Multipla from Amsterdam to Preston with class A and class C drugs concealed within it. Temporarily, Litwinski returned to Poland but he was invited back to Scotland by McIntosh. He continued to act as a courier and in 2007 ferried money and documents on command. He was present at the Toucan Hotel meeting in March 2007 as the Scottish representative. By this time the appellant had become a supervisor. He travelled to and from Amsterdam on a large number of occasions. His job was to shadow mules bringing cocaine into the UK. In the course of his participation he was regularly in contact with the organisers in Amsterdam, Dion Lee and Michael Hailwood. 46. The appellant spent a considerable time (751 days) on remand in custody. During that time he made a useful contribution to the prison community. He was a foreign national prison representative and a listener. He had undertaken work on victim awareness. 47. Mr Smith submitted that a starting point of 21 years after a trial in Litwinski’s case was excessive. It was acknowledged that he was a supervisor but he was under the control of others. Mr Smith pointed out that if the starting point for Hailwood was too high then, correspondingly, so was the starting point for Litwinski. We have rejected the argument that Hailwood’s starting point was excessive. Furthermore, in Litwinski’s case the underlying argument is not made out. Litwinski was involved in a variety of activities. He rose within the organisation and became a trusted manager and supervisor of mules. We do not view a starting point of 21 years after a trial as excessive. Accordingly, his appeal is dismissed. Karol Siejda 48. Karol Siejda is now aged 21. He pleaded guilty on 5 February 2009 to counts 1 and 2 in the indictment. He was sentenced to 12 years detention in a young offender institution upon count 1 and 6 years concurrent upon count 2. 49. Siejda was recruited by Litwinski to act as a mule. He carried both drugs and money to and from Amsterdam and Edinburgh. He progressed to become a minder and shadow for the mules. The appellant’s involvement lasted from December 2007 until March 2008. He made a witness statement to the police in which he was frank about his involvement. Pleas of guilty were entered at an early stage, but when legal aid was transferred an application was made to vacate the pleas. The judge heard the application and rejected it. During the course of the hearing the judge was made aware of Siejda’s own addiction to drugs for which he had received treatment in hospital in Poland. The appellant raised the defence of duress, his mental health and the language barrier. No psychiatric evidence was produced to the judge at the hearing but Mr Khan has invited us to take into consideration a psychiatric report prepared for the appeal hearing. It provides confirmation of Mr Siejda’s treatment in Poland but does not provide any basis for an order under the Mental Health Act and Mr Khan did not suggest that it did. The judge found that the appellant’s admissions and the advice tendered in consequence of that advice had been perfectly clear, appropriate and unequivocal. In the result two days had been spent considering an unmeritorious application and the credit for a guilty plea should be limited to 20%. That was, in the judge’s view, a generous discount and included in it was an allowance for the appellant’s young age and language difficulties. The judge intended to reflect his view that the appellant was not personally wholly responsible for the application to vacate his plea. The implication was that he may have been tempted by others away from the straightforward approach he had originally espoused. 50. It seems to us as it did to the single judge that a starting point of 15 years would have been appropriate for an offender of mature years in this appellant’s position. It reflected the personal importation of 3.5 kilos of pure cocaine, delivering money and acting as a minder for others. The question for this Court is whether adequate allowance was made for the comparatively young age of the appellant and his personal circumstances at the time of his recruitment, his dependent personality and his plea of guilty. The appellant was aged 19 when he committed these offences. In our judgment this was an important factor which required separate consideration when setting the starting point, independent of any consideration of the discount for his pleas. In our view the appropriate starting point for this appellant was 12 years imprisonment. Given the judge’s view that he was not wholly responsible for his tactical change of direction we think that a discount in the region of 20% would have been appropriate. The resulting sentence will be 10 years detention in a young offenders’ institution which we will substitute for the original sentence of 12 years on count 1. The sentences will continue to run concurrently and the period spent on remand of 577 days will count towards that sentence. Krzysztof Kownacki 51. Krzysztof Kownacki and Wioletta Sadowska were arrested as they entered the UK at Dover in Fiat Multipla ST51 CHH on 6 August 2007. They were prosecuted by HM Revenue and Customs and at Canterbury Crown Court pleaded guilty to 5 offences relating to the importation made during their journey of MDMA, cannabis, firearms and ammunition. However, the prosecution accepted their bases of plea that they were unaware of the presence of the firearms and ammunition. As the recorder then observed, they were extremely fortunate. On 16 January 2008 the appellant was sentenced to a total of 5½ years imprisonment and Sedowska received the same sentence. 52. Following her arrest Sedowska made admissions which resulted in further charges of possession of cocaine within intent to supply and possession of ecstasy with intent to supply. Following her pleas of guilty in April 2008 she made a statement to the Lancashire police in which she implicated 11 other accused. She gave evidence in the trial of several of the Lancashire defendants at Liverpool. On 9 May 2009 she appeared at Preston Crown Court for sentence. The judge indicated that had it not been for her assistance he would have imposed a sentence of 6 years imprisonment. In the result the judge imposed a sentence of 2 years imprisonment for the additional matters concurrent with the sentence of 5½ years imposed at Canterbury. On 29 October 2009 the Canterbury Crown Court heard Sedowska’s application for a re-consideration of her earlier sentence under section 74 (2) (c) Serious Organised Crime and Police Act 2005 . Her sentence was reduced to 3 years concurrent which meant that Sedowska served a sentence totalling 3 years imprisonment in respect of the activity reflected in counts 1 and 2 of the indictment. 53. On 23 April 2009 Kownacki pleaded guilty at Liverpool Crown Court to count 5 in the indictment which charged him with, on 25 January 2007, unlawfully supplying cocaine to another, and to count 6, on 26 March 2007, unlawfully supplying MDMA to another. These counts reflected Kownacki’s involvement in the importation by means of the Citroen C5 BAU 29FT of cocaine to Croydon for onward distribution by Taylor to Lancashire and later of MDMA for Delroy Powell in Leeds. He was sentenced to 8 years imprisonment concurrent in each count but the judge ordered that that sentence be served consecutive to the sentence of 5½ years imposed at Canterbury. 54. Kownacki was a close friend of Tomasz Wisniewski. The judge concluded that he was a more prominent figure in the importations than was Wioletta Sadowska. It was Kownacki who told Sadowska during her first importation the nature of the drugs they were carrying. It was Kownacki who received expenses for the trip from the Dutch players and paid Sedowska from cash he received. The judge, rightly in our view, concluded that although Kownacki had pleaded guilty to 4 substantive counts it would be unrealistic to view his involvement as anything other than continuing. He did not accept the argument that the view expressed by the judge who imposed a 2 year sentence on Sedowska was in any sense binding upon him when he came to assess Kownacki’s culpability. 55. It is now argued by Mr Harding that 6 rather than 8 years imprisonment was the appropriate sentence for Kownacki and the sentences should have been ordered to run concurrently. We do not agree that Sadowska’s involvement is directly comparable with that of Kownacki for the reasons given by the judge. Furthermore there were exceptional reasons for the concurrent sentences eventually imposed in Sedowska’s case who took huge risks to give valuable evidence on behalf of the prosecution. The court has asked itself the question whether, had the applicant been sentenced at one hearing for an involvement in each of the importations which he admitted, a sentence of 13½ years after pleas of guilty would have been regarded as excessive. 56. The applicant appears to have been due full credit for his pleas of guilty since he tendered them at the first realistic opportunity on both indictments. His sentence of 13½ years therefore represents a starting point in the order of 21 years. The starting point for Wisniewski on count 1 we have estimated at 24 years. In our view this fails to make a sufficient distinction between an organiser (Wisniewski) and a courier/manager (Kownacki). We consider that a proper distinction will be reached by adopting a starting point of 18 years in Kownacki’s case producing a total sentence of 12 years. We shall achieve that result by reducing sentence on counts 5 and 6 in the Liverpool indictment to 6½ years concurrent with each other but consecutive to 5½ years imposed at Canterbury. Days spent on remand will continue to count. Nyome Dawn Hue 57. Nyome Hue is now aged 36. On 26 October 2009 she was found guilty by the jury of count 1 in the Liverpool indictment. On 17 December 2009 she was sentenced to 13 years imprisonment. The appellant is the sister of Ivan Hue and Stella Taylor who were without doubt at the centre of the business of importation into the North West of England. 58. The evidence adduced in Ms Hue’s trial concerned, among other things, her alleged involvement in the purchase of the Fiat Multipla X129 BUJ. In the event the prosecution relied only upon telephone contact between Stella Taylor and the appellant coincident with the day of purchase. They did not attempt to prove that she was physically present at the sale. Ms Hue accompanied the others on a journey to Holland with the car in January 2007. They returned in W708 SSL bringing drugs with them to Lancashire. Ms Hue also took flights to Amsterdam on 30 December 2006 and 7 March 2007 for the delivery of cash or documents. She was present at the Toucan Hotel meeting. During the journey in the Fiat and the meeting in the hotel Ms Hue was accompanied by Stella Taylor. It is a natural inference that Taylor was Ivan Hue’s principal representative. Ivan Hue was sentenced to 24 years imprisonment and Stella Taylor to 21 years. The judge heard the evidence in their trial. 59. The judge took the view that Nyome Hue acted as a liaison between her brother and sister. Stella Taylor had been in telephone contact with Nyome Hue on her return with the consignment of drugs on 4 December 2006 and again on 15 December 2006. Based upon the factors to which we have referred the judge found that Miss Hue played an important role in the Hue family drug business. 60. Miss Hue was of good character and worked as a staff nurse in a local hospital. She lived with her partner and two children. Character references indicated that the offence was out of character and probably driven by misplaced family loyalty. We are reluctant to interfere with the judge’s findings of fact, particularly as he heard the evidence at the trial of all the relevant personalities. However, we have compared the involvement of the appellant with that of several others charged in the same indictment. We do not consider that this appellant can be regarded as being in the same league as her siblings in terms either of authority or participation. Her involvement was intermittent and at a significantly lower level. In our view Ms Hue’s culpability would properly be reflected by a sentence of 11 years imprisonment which we shall substitute for the sentence of 13 years imposed upon count 1. Natalie Nicholls 61. Natalie Nicholls is now aged 32 years. She too was found guilty by the jury of involvement in the count 1 and count 2 conspiracies. She had previous convictions for theft, deception and assault. She was sentenced to 15 years imprisonment. Ms Nicholls was recruited to the conspiracy by Stella Taylor who was her close friend. Her role was similar to that of Nyome Hue but she was more deeply involved. She accompanied Stella Taylor on trips to Scotland and Amsterdam in pursuit of the drugs business. She was involved in an importation of cocaine and cannabis by car on 15 December 2006 and she made journeys with cash to Amsterdam on 9 November and 30 December 2006 and again on 19 February 2007. 62. Telephone traffic demonstrated the closeness of her association with Stella Taylor, her contacts in Scotland and communication with Dion Lee. She travelled with Ms Taylor to Amsterdam in March 2007 in an attempt to recover the impounded Fiat. She travelled again in July with Ms Taylor when the vehicle was eventually released. During the period January to July 2007 almost £4,000 in cash was credited to Ms Nicholl’s account. She made no replies in interview and did not give evidence at her trial. 63. Mr Stewart submits that 15 years imprisonment was an excessive sentence to someone who was not an organiser but a follower. She had an 11 year old son and had not before served a sentence of imprisonment. Several references referred to Miss Nicholls as a caring woman. At the time of preparation of the pre-sentence report Ms Nicholls continued to deny her guilt. The judge observed that he heard no sign of remorse. 64. The applicant was well aware that she was lending herself to a conspiracy which involved the importation of vast quantities of cocaine achieved by the use of vehicles and human mules. She did so by standing at the side of Stella Taylor who was a leading player in the conspiracy. The single judge refusing leave observed that a sentence of 15 years after a trial was within the appropriate range. We agree. The renewed application must be dismissed. Karen Louise Forshaw 65. Karen Forshaw who is now aged 36 was found guilty by the jury in the count 1 and count 2 conspiracies. She was sentenced to 10 years imprisonment upon count 1 and 6 years concurrent on count 2. Ms Forshaw was also recruited by Stella Taylor. She was directly implicated with Natalie Nicholls and others in the importation of cocaine and cannabis by car on 15 December 2006. She too made a cash run on 19 February 2007. During the journey she was in telephone contact with Dion Lee. Ms Forshaw had refused other assistance to Stella Taylor. She was not as heavily involved as Miss Nicholls and somewhat less implicated than Nyome Hue. 66. It was submitted that Ms Forshaw was at the bottom of the Lancashire tier and was being used by others. She had convictions for theft, fraud and violence but not for drugs offences. It is submitted that the judge’s starting point was excessive. We have been provided with copies of letters written to the sentencing judge which in our view do nothing to demonstrate that the applicant deserved the sympathy of the court. The issue is whether a sufficient distinction has been made between the involvement of this applicant, Ms Nicholls and Ms Hue. We think not. In our view the sentence on count 1 should be reduced to 9 years. We shall grant leave. Unless within 7 days Ms Forshaw makes written application to the contrary the sentence on count 1 will be quashed and 9 years will be substituted for it. The sentence on count 2 will continue to run concurrently and days spent on remand will continue to count. 67. We now turn to the remaining members of the Lancashire network. Mohammed Anwar Bawla and Majeed Shah. Mohammed Anwar Bawla 68. Mohammed Anwar Bawla now aged 36 pleaded guilty on re-arraignment on 30 July 2009 to counts 1 and 2 in the indictment. He was sentenced on 17 December 2009 to 15 years imprisonment. The judge found that Bawla and Shah were key figures in Lancashire. They worked closely with Ivan Hue and were visited by both Wisniewski and Bloch. The judge found that there were no fewer than four importations of cocaine and cannabis which found their way to Lancashire and some of the mule importations had the same destination. On arrival both men were involved in large scale distribution. 69. In October 2006 they were involved in the purchase of the Fiat Multipla W966 JSC which travelled to Holland. In November it was used for an importation to which Bawla and Shah were linked by telephone traffic. The importance of this evidence is the link it establishes between the applicants and the importation before distribution. In November 2006 Wisniewski visited Lancaster before travelling to Scotland to collect Fiat ST51 CHH which he then drove to Amsterdam. On 13 February 2007 the applicants were implicated by telephone traffic in the collection of Y708 SSL by Roman Bloch for onward delivery to Holland. On 4 December 2006, when Stella Taylor and others imported cocaine, they were implicated by telephone traffic. Similarly, on 25 January 2007 the applicants were in contact with the importation by Kownacki and Sadowska. Bawla and Shah were involved in the arrangements for mule importations on 11 October 2006 and 23 November 2006, and for cash runs in February 2007. 70. In writing Mr Ashmole concedes the magnitude of the conspiracy and Mr Bawla’s intimate involvement in it. He suggests that Mr Bawla should not be treated as an organiser “at the top end”. His interest was only in the Lancashire end of the conspiracy. Mr Ashmole relies on the decision of the court in Green [2009] EWCA Crim 1688 in which a starting point of 20 years was approved for an appellant who acted as lieutenant to a drug conspiracy. That was not, Mr Ashmole submits, the role of Mohammed Bawla. While he agrees that the scale of this conspiracy was huge, the involvement of Bawla, he contends, was not. 71. We cannot accept these submissions. Most of the vehicles were sourced in the United Kingdom, one of them in the North West. It was a feature of this conspiracy that the demand end in Lancashire and Scotland was intimately concerned with the supply and not just in the receipt and local distribution of the drugs. They were thus intimately connected with the importation. While there is no doubt that Ivan Hue was the dominating organiser in Lancashire as a whole, Bawla and Shah were at the top of their organisation in Lancaster. Mr Ashmole does not criticise the judge’s discount of 20% for Mr Bawla’s guilty plea. In our judgment a starting point of 19 years cannot properly be challenged. The renewed application for leave is dismissed. Majeed Shah 72. Majeed Shah is now aged 35 years. He was a close business associate of Mr Bawla and his partner in this criminal enterprise. On 23 April 2009, at the first opportunity, he pleaded guilty to counts 1 and 2. On 17 December he was sentenced upon count 1 to 15 years imprisonment and upon count 2 to 8 years imprisonment concurrent. He was already serving a sentence of 10 years imprisonment imposed on 18 February 2009 for conspiracy to supply a controlled drug class A. We have described Mr Shah’s complicity in the present matters when considering the application of Mr Bawla. 73. Mr Gray submits, first, that the starting point for count 1 was too high in Shah’s case. For the reasons that we have given we disagree. Secondly, Mr Shah pleaded guilty at the first opportunity. If both men had the same starting point Mr Shah should have received the greater credit. What distinguishes Mr Shah’s case in our view is the fact that he had convictions not just for violence and dishonesty but also on 15 January 2001 for being concerned in the supply of class B amphetamine and on 22 November 2002 for conspiracy to supply class A controlled drugs for which he was sentenced to 2 years and 8 years imprisonment respectively. The first offence was committed with Dion Lee. The appellant had a highly relevant antecedent history which in our view justified the judge treating these men in the same way. 74. While Mr Shah was on licence from his sentence of 8 years, he engaged on 15 October 2006 in a conspiracy to receive 4 kilos of heroin. In 2008 he was convicted and sentenced to 10 years imprisonment. HHJ Mark Brown ordered the sentence of 15 years he imposed on the present indictment to be served consecutively to this sentence. Mr Gray argues that the principle of totality was not therefore applied. Majeed Shah is a resourceful and determined dealer in drugs in very substantial quantities. He is not deterred by substantial sentences. The offence for which he received 10 years imprisonment has no connection with the present indictment. In our view a consecutive sentence was fully justified. However, standing back from the events of 2006 to 2008, it seems to us that a total sentence of 25 years imprisonment was excessive. In our view a sufficient penalty would have been 23 years imprisonment. We shall achieve that result by substituting for the sentence of 15 years upon count 1, a sentence of 13 years. The sentence upon count 2 will continue to run concurrently but the substituted sentence of 13 years will be served consecutively to the term of 10 years imposed in 2008. Days spent in custody on remand will continue to count. 75. We turn to the case of James Boyle a member of the Scottish limb of the conspiracy. James Boyle 76. The appellant James Boyle pleaded guilty on 13 February 2009 to counts 1 and 2. On 11 June 2010 the appellant was sentenced to 7 years imprisonment in respect of count 1 and 4 years imprisonment in respect of count 2 concurrent. The judge noted the scope of the conspiracy and described the appellant’s involvement. On 16 December 2006 Boyle purchased one of the vehicles Y708 SSL and registered it in his own name. He drove it to Holland where it was prepared for the transport of drugs. The money for the purchase was provided by Martin Graham. The appellant was supposed to return with a consignment of drugs but did not in the event do so. Instead the appellant returned to Edinburgh with McIntosh and Martin Graham. The vehicle was used subsequently for an importation by Stella Taylor and others on 11 January 2007. In May 2008 the appellant was involved in the supervision of human mules in their arrival in the UK. He collected a female courier from Newcastle and drove her to Scotland where she handed the drugs to Martin Graham. The appellant repeated the exercise shortly afterwards. 77. The judge concluded that the appellant was not a major player but he was trusted and involved at different times throughout the conspiracy. The judge sentenced the appellant on the basis that he was a foot soldier. He gave him full credit for his pleas of guilty and informed the appellant that he was entitled to credit of 50%. The judge took a starting point of 14 years which resulted in the principal sentence of 7 years imprisonment. Mr Stevenson submits that Mr Boyle’s starting point must have been the same as that of Martin Graham who recruited him. Graham was Boyle’s senior in the conspiracy. In our view this submission has merit. A distinction should be made to reflect the levels respectively at which the appellant and Graham functioned. In our view the appellant’s position would have been properly represented by a starting point of 11 years. His appeal is therefore allowed. The sentence on count 1 will be quashed and 5½ years substituted. It will be concurrent with the sentence of 4 years imprisonment on count 2 making 5½ years in all. 650 days will continue to count against that sentence. 78. Finally we turn to the sentence imposed on Delroy Powell, the Leeds recipient of vehicle importations. Delroy Powell 79. Delroy Powell is aged 31. On 23 April 2009 he pleaded guilty to count 1 of the indictment. On 22 May 2009 he was convicted by the jury of counts 3 and 4. On 17 December 2009 Mr Powell was sentenced to 13 years imprisonment in respect of count 1, 10 years imprisonment consecutive in respect of count 3, and 4 years imprisonment concurrent in respect of count 4. The total was therefore was 23 years imprisonment. 80. The judge observed that Delroy Powell was the main customer for the importation which took place on 26 March 2007 when 7,500 ecstasy tablets were imported. In August 2007 5,000 ecstasy tablets were imported for Leeds together with 7 kilos of cannabis and a variety of firearms. Mr Powell was not a mere purchaser. He travelled to Amsterdam and met with the principals. The judge described how Mr Powell managed his distribution through his outlets in the North East. He had decided to extend his activities from drugs to firearms. Mr Powell’s deep involvement was demonstrated by his presence in Amsterdam shortly before the August importation. It was submitted on Mr Powell’s behalf that a sentence of 23 years imprisonment was manifestly excessive. The MDMA tablets were not of particularly high quality. The guns and ammunition were recovered. The appellant is a father with 4 children. In prison he was a listener and a prisoner with enhanced status. 81. The applicant has been convicted in the past of robbery, supplying class A cocaine and possession of heroin with intent to supply. His convictions constituted a significant aggravating factor. We reject the submission that the applicant should not have been sentenced as a determined and major distributor of drugs in the North East of England whose activities had escalated to the purchase and supply of illicit and prohibited firearms. While we recognise that Mr Powell was not an organiser of the principal conspiracy he was head of a distribution network in a major conurbation in the North East. He was close to the importers and visited them in Holland. It was necessary that the sentence in respect of importation of firearms should be imposed consecutively in order to reflect the grave nature of such offending. A sentence of 23 years is at the top of the permissible range in our view but not arguably excessive. For this reason the application will be dismissed. 82. We shall not leave this appeal without expressing our thanks to the sentencing judge, HH Judge Mark Brown, and the single judge, Mr Justice Tugendhat for the clarity of their reasons, and to counsel who appeared in the appeal for the focus of their submissions. We have been much assisted.

2011_03_24-2679.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/727/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/727

7c66a6431564bbfc3b065090ae85f0caf7146ec59011f0ff794570d49e543354

[2006] EWCA Crim 1884

EWCA_Crim_1884

supreme_court

Neutral Citation Number: [2006] EWCA Crim 1884 Case No: 2004/04115/D3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS HIS HONOUR JUDGE MARTINEAU Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/07/2006 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE CRANE and MRS JUSTICE DOBBS - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Naveed Soroya Appellant - - - - - - - - - - - - - - - -

Neutral Citation Number: [2006] EWCA Crim 1884 Case No: 2004/04115/D3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS HIS HONOUR JUDGE MARTINEAU Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/07/2006 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE CRANE and MRS JUSTICE DOBBS - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Naveed Soroya Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Mansfield QC and Nr Joel Bennathan for the Appellant Mr Victor Temple QC and Mr P.M. Grieves-Smith for the Respondent Hearing dates : 11 th /12 th July 2006 - - - - - - - - - - - - - - - - - - - - - Judgment President of the Queen’s Bench Division: 1. On 22nd June 2004, in the Crown Court at Blackfriars before His Honour Judge Martineau and a jury, Naveed Soroya was convicted of one count of rape (count 2). He was acquitted of indecent assault, (count 1) on the same complainant, two days earlier. On 5 th July he was sentenced to six years’ imprisonment. The appropriate notification orders were made. 2. He now appeals against conviction with leave of a full court. The complainant was a young Polish girl called Anna. Then aged nineteen, she arrived in the United Kingdom from Poland on 13th April 2003. She was looking for work. She lacked a work permit. Her English was poor. She responded to an advertisement placed in a Polish language newspaper, and as a result arranged to meet the appellant. 3. The appellant has business interests in hotel management. He offered the complainant work, cleaning at a hotel. They met three times in all, first at a flat belonging to his brother, to discuss her employment, and shortly afterwards on two occasions, on 22nd April and 24th April at the same flat. 4. The prosecution case was that the appellant made unwanted sexual advances at their first meeting, while holding out offers of cleaning work. The complainant left the meeting, intending to find other work, but was unable to do so. She contacted the appellant about a week later. She agreed to meet with him at the flat so that he could provide her with details of the hotel at which she was to work. At the second meeting, the Crown alleged that the appellant indecently assaulted the complainant. Two days later, she went back to the same flat to collect £100 in wages. He raped her, and gave her £50 rather than the £100 he owed her. 5. The defence case was that the complainant made it clear from their first meeting that she was prepared to have or interested in having a sexual relationship with the appellant. There was no dispute about the sexual touching which she alleged had taken place during the second meeting, nor indeed that sexual intercourse took place during the third. The defence case was that all the sexual activity between them was consensual. The complainant was enthusiastic. Her behaviour suggested that she was not lacking in sexual sophistication. After sexual intercourse had taken place, the complainant requested more money than the appellant owed her, and when the appellant refused, she threatened to cause trouble. 6. For the purposes of the present judgment, it is unnecessary to set out a full narrative account of the evidence. We must, however, note that an important issue at trial concerned the complainant’s “conversional disorder”. This condition had been diagnosed in Poland, where the complainant was treated by Mr Naumiuk. She was an in patient in hospital for some ten days in June 2000, and then from January 2001 until June 2001, and again between February and June 2002. Her condition meant that she had extreme difficulty coping with highly charged situations. From time to time she would suffer episodes of difficulty with breathing, muscular irritation, fainting and loss of consciousness. When she was suffering what was described as “acute attack” she became incoherent, unable to hear, or speak, or react to what was happening around her, and utterly helpless. 7. Further psychiatric evidence was provided by Dr Taylor, on behalf of the Crown, and Dr Gaskin on behalf of the defence. In the result, the only psychiatric evidence before the jury was that of Dr Naumiuk, whose edited report was read to the jury by consent. 8. There was no independent evidence supporting the allegation of indecent assault. However, in the context of the rape allegation evidence of recent complaint was available. The complainant was described as “virtually hysterical” when she telephoned a friend, who met her at a tube station. She was crying and trying to catch her breath. When they met she complained that she had been raped. He suggested that they should go to the police station, which they did. 9. When the complainant was medically examined, no injuries were found. That said, the findings were neutral, although the doctor was asked questions about the result of her examination, with a view to contradicting the complainant’s own history of very limited previous sexual activity She adhered to the opinion that nothing in her findings contradicted the complainant’s account. Forensic examination of vaginal swabs provided strong support for the proposition that the complainant had had sexual intercourse with an individual wearing a silicone lubricated condom within the last thirty six hours. 10. The appellant was interviewed by the police. He denied both offences. He was adamant that all sexual activity between him and the complainant had been consensual. The interviews included significant lies. First, the appellant untruthfully asserted that he did not think penetration had occurred. Second, he lied when he said that at the second meeting at the flat, he had taken a condom from a chest of drawers. 11. When the appellant gave evidence, he repeated the case advanced in interview, that all sexual activity was consensual, and he had done nothing with or to the complainant without her consent. He explained his lie about penetration on the basis that his solicitor had told him not to admit to full sexual intercourse because the police had not at that stage alleged that penetration had occurred. So far as the condom issue was concerned, he explained that lie as a consequence of panic in interview when he was “scared” and “all over the place”. We do not propose to explain the significance of these lies, but simply note that they were directly connected with the circumstances in which sexual activity took place. 12. The appellant was a man of good character. Positive character evidence was given on his behalf. 13. This brief summary of very much more detailed evidence sufficiently explains the major themes in the evidence called before the jury. No criticism is made of the summing up. The verdicts are not said to have been, and could not be said to have been, inconsistent. 14. At the outset there were two distinct grounds of appeal. The first arose from the impact of section 41 of the Youth Justice and Criminal Evidence Act 1999 . The argument was that evidence of the complainant’s previous sexual history was wrongly introduced by the prosecution at trial in circumstances which would not have been permitted to the defence. This constituted a breach of the appellant’s right to a fair trial, and infringed the requirement that there should be “equality of arms” between prosecution and defence. Successfully sustained, this ground of appeal would involve discussion of significant issues of principle arising under section 41 . At the end of the hearing, we dismissed this ground of appeal, and now give our reasons for our decisions. 15. The second ground of appeal concerned fresh evidence. In brief, it was suggested that the complainant had made a false complaint about a sexual attack on her by a man in Poland, before she arrived in England. As the outcome of the trial depended on the jury’s view of the credibility of the complainant and the appellant, this was said to be a critical piece of evidence about which the jury was ignorant when it reached its verdicts. 16. A very late application was made to advance a third ground of appeal, said to raise further issues of direct importance to the credit worthiness of the complainant. After considering the material put before us by Mr Mansfield, we came to the conclusion that although we were not prepared to give leave on this ground, the issue merited further inquiry. Accordingly, this proposed ground of appeal was adjourned. We concluded that as the second ground raised “fresh evidence” issues relating to the credibility of the complainant, it was not practicable to treat it as a discrete point. Accordingly the second and third grounds will be reconsidered at a later hearing at which issues of fresh evidence will be addressed. 17. We must explain the evidence relevant to the first ground in a little more detail. In the complainant’s witness statement a detailed narrative account of the rape was provided. During the incident, she told the appellant that she had never had intercourse before. He said that it had to happen sometime, and that it always hurt. She was in pain and tried to move away. She claimed to be a virgin in the hope that this might lead the appellant to desist from the assault on her. The claim was untrue. The complainant explained in her statement that she had had sexual intercourse on one previous occasion, about a month before she left Poland. The complainant further explained that she had once been attacked by a man in the past, and that she had fought back. The result was that she received serious injuries, and she explained that during the incident when she was raped by the appellant, she was terrified that she might be hit, and scared that he “might get angry”. 18. In her account to Dr Gaskin, as given in her second report, the complainant explained that before moving to the United Kingdom, she had met her first serious boyfriend, who was slightly order than she was. She had sexual intercourse with him about a month before coming to the United Kingdom. This was the first occasion she had had sexual intercourse. She also explained an incident which occurred when she was about sixteen years old, at a party, when a boy two years older than she was, approached and appeared to be showing interest in her. When he tried to touch her sexually, she told him that she did not want him to, but the boy ripped her blouse open. She thought she suffered a “panic attack” during the incident, and subsequently fainted. When she woke up, she noted some physical injuries in the form of bruises. Although she was not aware of precisely what had happened to her, she had not been raped during the incident. 19. The report from Dr Taylor was disclosed to the defence. When he interviewed the complainant, she told him about the attack on her when she about sixteen years old. She said that she had resisted physically, and the attack ended with her collapsing due to a panic attack. She was hurt, but not raped. She also told Dr Taylor that she had had sexual intercourse on one previous occasion, with her boyfriend before she travelled to the United Kingdom. 20. The Crown did not lead evidence about the attack on the complainant when she was about sixteen years old. Although the issue was addressed in a number of different documents, the defence did not explore it. It was not suggested, and there was no basis for suggesting,` that the allegation against the un-named Polish boy was false. 21. Before the complainant gave evidence, there was an argument about the admissibility of the complainant’s previous sexual history. It was conceded that if the complainant said in evidence, as she had claimed in her statement, that she had only had sexual intercourse on one previous occasion, section 41 of the 1999 Act meant that the defence could not contend that they should be allowed to cross-examine her on that point. Counsel, rather boldly, asked to be able to indicate to the jury that it was not accepted by the defence that this was indeed the true position. The defence case was that she was sexually experienced. 22. In fact, the Crown did not intend to adduce evidence of the complainant’s previous sexual history. It suggested that the complainant should be allowed to give evidence of what she had actually said to the appellant during the incident when she was raped. This was part of a verbal exchange which helped to demonstrate that she was not consenting to sexual intercourse, and that the appellant knew she was not consenting to it. Although she said what she said to put the appellant off, as the truth was that she had had sexual intercourse on a previous occasion, the jury should be informed of the truth. The judge agreed, and further agreed that counsel for the appellant could add “that is not a matter I am allowed to cross-examine you about….but the Crown and His Honour know that it is not a matter that the defence accept.” 23. When she gave evidence the complainant said that she told the appellant that she had never done this (meaning that she had never had sexual intercourse) and added that she did not want to do it with him. She also described his response, that there always had to be a first time. When she was cross-examined it was suggested to her that she had never told the appellant that she was in pain. This brief exchange then followed: “Q You say that you told him that you had never had sex before? A: Yes Q: That was not true, was it? A: I did once inasmuch as I tried to with my boyfriend…yes, yes. I did have once. Q: That was not the question. The question was: what you said was not true? A: Yes” Counsel then told the court that she wished to explain to the complainant that she was “specifically not allowed to ask any questions about sexual history”. The judge pointed out to the jury that this was the consequence of an Act of Parliament, and counsel went on that it was “probably also proper at this stage to indicate that the defence do not accept that there was only a very limited sexual knowledge, but we can ask no questions about it whatsoever”. 24. The judge asked the complainant why she had made the untrue statement that she had never had sex before, and she explained that she was doing her “utmost to verbally defend myself”. She had not had sexual intercourse before because “there are men who don’t like doing it with women who haven’t had sex before”. 25. We have already recorded that material was put before the jury about the state of the complainant’s vaginal area, and the absence of any signs of a hymen. No questions on this topic were directed to the complainant herself. 26. This ground of appeal involves a broad forensic attack on the impact of section 41 of the 1999 Act , and indeed whether it is compatible with the requirements of article 6 of the European Convention on Human Rights. In essence Mr Mansfield’s argument is that in the context of what was regarded as permissible questioning of a complainant about her previous sexual history, the defence was placed at a disadvantage when compared to the prosecution. The object of the legislation is to prevent anyone, prosecution or defence, from asking questions which might cause embarrassment or difficulty to a complainant, male or female, about matters which are entirely personal, and interference with which damages the complainant’s autonomy. Mr Mansfield suggested that whether or not the Crown was seeking to rely on the absence of a history of sexual activity or not, there was a danger or risk that the jury would misuse the evidence given by the complainant about her previous sexual experience. Therefore the evidence should have been appropriately edited, so that her account of what she said during the incident would have omitted any reference to her saying this would be the first occasion she had had sexual intercourse. Mr Mansfield suggested that the jury was already provided with sufficient material from which it was open to them to conclude that the complainant had not consented. His argument, as it developed, was that the fact that the complainant was a virgin, or virtually so, had no bearing on the case. Her previous sexual history did not help to establish whether or not she consented to sexual intercourse on this particular occasion. The prohibitions in section 41 should embrace the prosecution. As they did not, the process was unbalanced, adversely to the defendant. 27. The short answer to these submissions is that the Crown did not rely, directly or indirectly, on the complainant’s previous sexual history. It was not seeking to do so, so to speak, on a whim, or as a device to reduce or avoid the protection given to victims of rape by the limitations imposed on the questions which may be asked of them, or as a forensic technique to put the defendant at a disadvantage. The issue of the complainant’s sexual experience only arose for consideration because, as an integral part of the incident, and to avoid the rape, she made what was admittedly an untruthful claim that she was a virgin. What she said to the appellant was relevant and admissible. From the Crown’s point of view, it was important evidence bearing on the issue of consent. No doubt too, it was important to the complainant to explain how she had reacted, and what she had said, to avoid the dreadful incident as it was unfolding. Nevertheless, to avoid the jury being misled by the Crown, a formula was agreed between counsel and permitted by the judge because the falsity needed to be exposed to the jury. The result of the agreed formula was its deployment in the forensic process to suggest that the confidence of the jury in the complainant’s credibility might be undermined by the certain knowledge that she had told an admitted lie. In our judgment no justified complaint can be directed at the admission of this evidence. 28. We should in any event add that, if and when the argument advanced by Mr Mansfield in this appeal is renewed in a different case, close consideration should be given to the protective effect of section 78 of the Police and Criminal Evidence Act 1984 , drawn to our attention by Mr Victor Temple QC for the Crown. This familiar statutory provision needs no recital. In our judgment, however, the provision is perfectly apt to be deployed in an appropriate case, where it is thought by the judge that the impact of section 41 of the 1999 Act on the defendant may produce an adverse effect on the fairness of the proceedings. In our judgment, however, there was no such unfairness in this case. The judge was not asked to exclude any part of the complainant’s evidence about what she said to the appellant. If such an application had been made, it would, we have no doubt, have been rejected. 29. We should add that there was no evidence at trial, and despite what we know must have been a huge investigation post trial, there is still no evidence which suggests that there was or is material available to be deployed about the complainant’s previous sexual history by the defence which was excluded by the statutory provisions. The reality is that if the jury concluded that the appellant’s account of the circumstances in which sexual intercourse took place was or may have been truthful, he would have been acquitted. If his account may have been truthful, the jury would have been left with significant reservations about the complainant’s evidence about the circumstances in which sexual intercourse occurred, as well as her account of very limited sexual experience. Plainly her evidence that the appellant raped her was accepted. 30. In our judgment, no issue of principle arose on this ground of appeal. The evidence of the complainant was rightly admitted. The appellant was not subjected to any unfairness. Accordingly this ground was rejected. The remaining grounds of appeal relate to “fresh evidence”, and as we have already indicated, our conclusion on the first ground is without prejudice to the remaining, but discrete, question of fresh evidence, which will be examined in due course.

2006_07_28-893.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1884/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1884

de60a56ba05d171ce77f2b860723fba05d53ff8dbaf6f0fa0c4a54a2e55f4eb5

[2012] EWCA Crim 791

EWCA_Crim_791

crown_court

Case No: 201106412 D4 Neutral Citation Number: [2012] EWCA Crim 791 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT TRURO HIS HONOUR JUDGE ELWEN T20100201 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/04/2012 Before : LORD JUSTICE RIX MR JUSTICE COULSON and MR JUSTICE HADDON-CAVE - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - E Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr J

Case No: 201106412 D4 Neutral Citation Number: [2012] EWCA Crim 791 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT TRURO HIS HONOUR JUDGE ELWEN T20100201 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/04/2012 Before : LORD JUSTICE RIX MR JUSTICE COULSON and MR JUSTICE HADDON-CAVE - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - E Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr J Ticehurst (instructed by Walters and Barbary Solicitors ) for the Appellant Mr J Barnes (instructed by CPS Special Crime Division ) for the Respondent Hearing dates : Monday 2 nd April 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Rix : 1. This appeal concerns a trial at which allegations of both historic and more recent abuse were made against the appellant, who is now 80. There were four complainants. The substantive ground of appeal is that the judge erred in refusing to stay the indictment, for abuse of process, on its counts 1 to 12, which concerned the first three complainants. At the hearing of this appeal, we dismissed it on this ground, reserving our reasons for doing so. This judgment contains those reasons. The persons concerned are anonymised pursuant to the Sexual Offences (Amendment) Act 1992 to protect the victims from identification. 2. There is also a more formal ground of appeal, that counts 5 and 6, which charged acts of gross indecency with a child under the age of 16, resulted in unlawful convictions because, at the relevant time between 1975 and 1979 when the child concerned was between 12 and 16 years old, the statutory requirement under section 1(1) of the Indecency with Children Act 1960 was that the child be under 14. The counts by error referred to the age of 16, which was introduced by amendment only in 2001. It is common ground that it is impossible to say with the necessary degree of assurance that the complainant concerned was under 14 at the times of the commission of these offences. Therefore it is necessary in any event to quash these two convictions. If, however, the appellant’s substantive ground of appeal were correct, the indictment on those two counts would have to have been stayed together with the other counts within counts 1 to 12. As it is, the quashing of these two counts does not affect the appellant’s overall sentence of seven years, since they involved concurrent sentences of only one year each. It is not submitted on the appellant’s behalf that the quashing of the appellant’s conviction on those two counts affects the overall gravamen of his offending. 3. The four complainants were the appellant’s stepdaughter, AW; her younger half-sister LD, another stepdaughter; LD’s daughter, SD, thus the appellant’s step-granddaughter; and, fourthly, DT, who was the daughter of a friend of the appellant and was unconnected with the other complainants. AW’s complaints related to counts 1 to 8, LD’s to counts 9 and 10, SD’s to counts 11 and 12, and DT’s to counts 13 and 14. 4. The appellant was convicted on 14 October 2011 at the Crown Court at Truro, following a trial presided over by His Honour Judge Elwen QC, on all 14 counts upon the indictment. He was sentenced to a total of 7 years imprisonment made up as follows: count 8, a specific offence of indecent assault, received a four year sentence, while counts 1 to 7 received concurrent sentences of one year each; there were then consecutive sentences of one year each in respect of one of each pair of the counts which concerned the other three complainants (while the second count of each of those pairs received concurrent sentences of 1 year each). 5. AW was aged 12 to 23 over the period of the allegations within counts 1 to 8, which were charged as occurring between 1975 and 1987. She had educational difficulties. She gave evidence that touching of her legs by the appellant escalated to full digital penetration and getting her to touch his penis. The abuse happened whenever the appellant had an opportunity without her sister or mother knowing, sometimes in the caravan where they lived, and sometimes out and about on walks or in his car. He told her that when she was 16, he was going to “break you in”. She pre-empted that by having a sexual relationship with another man, but the appellant continued to abuse her until, as it seems, she moved away at the age of 23 and sought help from her doctors. 6. AW made a statement (undated but said by a police witness to have been made in October 1999, and probably drawn up by AW’s counsellor) which was before the court, having been discovered in police files. It was the only document to come forward from that source. However, it was not a police statement and it resulted in no formal complaint. She said that the police never got back to her. In that statement she said that she had decided to make it after hearing that the appellant had “acted inappropriately” towards her niece, SD, on a visit to his step-daughter LD in London. She also said there that LD did not want SD to make a statement to the police, “as she feels that she and her child’s school have dealt with it”, but that LD would support her and also describe her own experiences. In his interview, the appellant accepted that the police had come to see him “about nine years ago” about AW’s statement and had read it to him, but had told him that she had not made a complaint and that therefore no action would be taken. 7. Some at least of AW’s medical records were before the court. A letter dated 13 August 1992 reported that when AW was about twenty (viz in about 1983) she had told her sister (presumably LD) that she had been attacked by her stepfather and that the police had become involved: however, he had denied it, no charges were brought, her mother was not informed, and her siblings did not believe her. However, AW herself gave no evidence about a previous approach to the police, although LD did (see below). 8. It was again the appellant’s own statement in interview that confirmed an earlier involvement of the police, although he said that it was he that had contacted them, as a result of both his stepdaughters going around accusing him of abusing AW. He had heard of them from a neighbour. He said that “when these allegations were made back…in the late 70s, I phoned the Police myself”. He said that a Newquay police superintendent and other police officers had come to see him but had assured him the allegations were “a load of bollocks. End of story”. 9. LD also spoke at trial of an earlier involvement of the police. Her evidence was that she was the youngest of her mother’s three children. Her mother was KH, whom the appellant had married. She was 5 years old when the appellant had moved in. She was 12/13 years old over the period with which counts 9 and 10 were concerned, namely July 1981 to July 1982. However, she also spoke of witnessing the appellant’s abuse of AW at an earlier time. He would have his hand up AW’s skirt and then say “Well done, you’ve taken this much” and show her with his fingers the extent of his digital penetration. AW had given similar evidence about what the appellant had done, but not that it was done in the presence of LD. LD spoke of one occasion on which the appellant was between AW’s legs with an erect penis, saying “Better let me do it slowly, than some bastard coming along and hurt you”. She, LD, believed that the appellant was about to rape AW, but she did not see him enter her. (AW said that the appellant had never raped her.) She said that she tried to speak to AW about what was going on, but AW would say nothing. 10. As for the abuse to herself, LD said that the appellant had started to do this when she was 12 (the same age as the abuse to AW had begun). He started with touching her legs and in time to touching her vagina under her clothing, but never penetrated her digitally. This abuse happened frequently, but when she was 13 she “became vocal” and the police visited. In her interview she said that she had called the police, but in cross-examination she accepted that the appellant may have done so. However, AW would not support her, and the police went away. The appellant stopped abusing her, but continued with AW. 11. Thus it appears from a combination of LD’s evidence and the appellant’s interview that there was some involvement of the police in 1982 (the appellant put it a little earlier), but nothing came of it. 12. SD, the step-granddaughter, was aged from 8 to 12 over the period from January 1995 to January 2000 with which counts 11 and 12 were concerned. She gave evidence that she would stay in the school holidays with KH, her grandmother, and the appellant. When she was 8 he would put her on his lap and rub himself against her bottom. When she was 10 or 11 he would rub her breast and genital area during play-fighting: it was much more than touching and tickling, and amounted to “feeling her up”. When she was 11, in the summer holidays, (that would be in the summer of 1998) a particular play-fight ended with the appellant on top of her and undoing his trousers, just when her grandmother walked in and demanded to know what was going on. SD told her grandmother that she wanted to go home and she was allowed to ring LD who came straight down to collect her. SD said that she was too scared to give her mother any details, until about a week later. She said that LD called the police but that they said that there was not enough evidence to take matters forward. 13. LD also gave evidence about the matters affecting her daughter SD. LD said that when SD was about 12 or 13 she was told by SD that the appellant had touched her private parts. She had telephoned the police in Cornwall, but nothing was done. 14. AW’s medical records begin in April 1973, when she was referred to a child and family guidance clinic. She was then nearly ten, and suffered from anxiety. That was before the alleged abuse had begun. There is a letter from when she was 22 (about 1984/5), which speaks of her depression, but nothing is said about any abuse, although her rather poor relationship with her step-father is mentioned. A letter from her consultant psychiatrist in July 1992, when she was 29, is the first to mention abuse by the appellant, there ascribed to the period between the ages of 13 and 16. We have already mentioned the letter dated 13 August 1992 which refers to the police becoming involved because of what she had told LD about the appellant’s abuse, but also to her siblings’ disbelief. The letter states: “She now feels that the only person she can trust is her mother”. There is a further letter of November 1993 which again refers to her having recently confided in her sister (LD) “because she was worried about his proximity to her niece” (ie SD), and her being “upset that her sister did not fully believe her”. A letter dated 13 June 2000 reports that AW – “feels supported by her mother who left her stepfather after she disclosed that he had abused her since the age of 11…She feels protected by all the members of her family to whom she has disclosed the abuse.” 15. A letter dated 6 July 1999 refers to LD having “taken steps to inform the police” as a result of her niece (SD) aged 12 having told LD that she had been sexually abused over a period of 12 months; and that LD was pressurising her to make a statement about her own sexual abuse but that she does not feel ready to do so. 16. There is no complete consistency in these records and in the evidence given by the complainants at trial. However, it would seem, so far as police involvement was concerned, that the police were contacted in about 1982 or a little before, possibly by the appellant himself, but LD also said by her; and that they were contacted a second time in about 1998 or 1999, again LD said by her, this time in connection with abuse to SD, and it seems that it was in that context that AW provided her statement to the police, ascribed to October 1999: albeit that statement said that LD did not wish her daughter to make a formal complaint. On neither occasion was there any formal complaint, nor any police action other than that described by the appellant himself. It was at any rate common ground that the police had become involved on two occasions, but that no further action had been taken. 17. Police records were investigated, but nothing emerged except for AW’s statement. It was suggested therefore on behalf of the appellant that police records had been lost over the years, but that is uncertain. 18. It was the allegation emerging from the fourth complainant, DT, which led to the arrest of the appellant and his trial. She complained of abuse in the second half of 2009, when she was aged 14. The appellant was arrested in December 2009 and bailed. Police enquiries led them to the first three complainants, and their allegations were put to the appellant in his further interview in April 2010. His evidence at trial reflected that interview. He said that the complainants were lying; that AW and LD had resented him taking over as head of the household from their elder brother, and for his strict discipline; and that LD had permitted her daughter to stay with him and his wife in Cornwall. 19. Before the beginning of the trial there was an application to stay the indictment in respect of the counts concerned with the family complainants on the ground of abuse of process. It was submitted that the long delay had caused incurable prejudice to the appellant in circumstances where police records had been lost and the appellant’s wife had died. It was submitted that without knowing what allegations had been made to the police, and why those allegations had not been acted upon, the appellant was in an impossible situation and a fair trial was not possible. Similarly, it was submitted that the delay had made it impossible to obtain the supporting evidence of his wife, KH, who had died in 2003. All the delay in question was unnecessary, given the police involvement which had gone back to at least 1982. However, there was no submission that the police had acted in bad faith or had been guilty of bad practice. 20. The judge ruled against that application. In essence, he accepted the submissions of the prosecution that there was nothing exceptional about the case. Neither the delay nor the paucity of records were exceptional features of such cases. Any difficulties of the defence were not of such an exceptional nature as could not be cured by appropriate directions to the jury. 21. On this appeal, Mr Joss Ticehurst on behalf of the appellant has addressed similar submissions to this court. He has drawn attention to the structure of the case outlined above. The abuse with which the appellant was charged took place up to 36 years before trial. Allegations had been made in the past, but they had never persuaded the police to take action. It was impossible for the appellant to have conducted his defence without knowing what those allegations had been, and why they had not been acted on. It was too easy to establish a picture of misconduct by assertion, which left the appellant with little more than denial. As it was, the prosecution case was full of inconsistencies. Thus, AW said that the abuse occurred to her when her sister was out of the way; but LD said that she had witnessed it. AW said that she had never been raped; but LD described a situation once which looked to her very much as though penile penetration was about to take place. It was uncertain whether LD had disbelieved AW, or whether AW had been unwilling to assist LD and SD. If LD had herself been abused, it was odd that she should not have supported AW, and odd too that she should have put her own daughter in harm’s way. Such inconsistencies and oddities made it all the more necessary for any prosecution to have been brought timeously before records were lost, or before a vital witness such as KH had died. 22. Mr Ticehurst has referred us to the leading case on this jurisdiction, namely Attorney-General’s Reference (No 1 of 1990) [1990] 1 QB 630 , and to two recent authorities of this court in which the circumstances in which an indictment might be stayed for abuse of process has been considered, namely R v. TBF [2011] EWCA Crim 726 and CPS v. F [2011] EWCA Crim 1844 . We have also looked at R v. MacKreth [2009] EWCA Crim 1849 , to which both those authorities have referred. It is clear that, as Lord Judge CJ emphasised in CPS v. F , at para 49(ii): “An application to stay for abuse of process on the grounds of delay must be determined in accordance with Attorney-General’s Reference (N0 1) of 1990 . It cannot succeed unless, exceptionally, a fair trial is no longer possible owing to prejudice to the defendant occasioned by the delay which cannot fairly be addressed in the normal trial process.” For these purposes the burden of proof or persuasion lies on the defendant. Lord Judge also emphasised that any question of justification for the delay is only relevant to an abuse of process argument to the extent that it may throw light on the question of prejudice (at para 49). 23. Moreover, as appears from MacKreth (cited at para 31 of Lord Judge’s judgment) and again from TBF (see at paras 34 and 37), the courts have developed techniques or “control mechanisms”, such as directions to the jury about the problems faced by defendants in historic abuse cases, to ensure both that the jury are made appropriately aware of such problems, so that they can take them into account, and that “real and not mere lip service to a concern to do justice in such cases” is brought to bear. In the present case, however, there is no submission that the judge failed to give adequate directions to the jury, or that he failed to show a real concern to the need to do justice. What is said in essence is that he simply erred in the result of his ruling. That must be a difficult submission, for, as Lord Judge emphasised, as has the jurisprudence in general, each case turns on its own special facts. 24. As for missing documentation, MacKreth at para 31(10) emphasised that “mere speculation about what missing documentation might show” does not justify a stay for abuse, contrasting other cases where there was reason to think that specific, but at trial absent, contemporaneous documents would have been decisive. Lord Justice Sullivan in TBF put this point as follows (at para 37(iii)): “In assessing what prejudice has been caused to the defendant on any particular count by reason of delay, the court should consider what evidence directly relevant to the defence case has been lost through passage of time. Vague speculation that lost documents or deceased witnesses might have assisted the defendant is not helpful. This court should also consider what evidence has survived the passage of time. The court should then examine critically how important the missing evidence is in the context of the case as a whole.” 25. In the present case, these principles do not, in our judgment, assist the appellant. It must be entirely speculative what documents, if any at all, were brought into existence in 1982 and/or 1999 (or thereabouts) when the police became involved in the affairs of the appellant’s family. AW’s self-prepared statement survives, and was located, but nothing else of any materiality. Although one might think that other documents would have been brought into existence, the probability is that, if they had, they would, like AW’s statement itself, have survived and been located. This is against the background that, on the appellant’s own case, it was he, and no one else, who had involved the police on the first occasion. As for the second occasion, it seems reasonably clear that ultimately none of the three family complainants was willing to make a complaint. The appellant himself says that the police took no action. In the light of the jury’s verdicts one might express surprise that that might have been so, especially where an allegation concerning the child SD was concerned: however, as AW’s own statement said, LD “does not wish my niece to make a statement to the police”. 26. So, we begin with mere speculation about what further, if any, documents there might have been. However, even if we suppose for the sake of argument that there were further material documents which have been lost, what did they say? That is itself mere speculation. As it was, the appellant had the advantage, which made his trial fair, of being able to argue that any allegations made to the police at those earlier times were pursued by neither the complainants nor the police: and thus were treated as unworthy of further action. 27. Similar considerations apply to the death of the appellant’s wife, KH. Witnesses are always liable to become unavailable, for various reasons including illness or death. In the case of KH, however, there was no reason to suppose that her evidence would have been favourable to the appellant, and much to indicate that it would have been unfavourable to him. Thus it was at about the time of the allegations concerning SD that KH left the appellant and subsequently divorced him. It is speculative to suppose that her evidence would have assisted him. 28. In sum, no error of principle has been relied upon by Mr Ticehurst in this appeal, and no specific features of this case suggest that this was one of those exceptional cases where incurable prejudice has been caused, for which the judge’s conduct of the trial and directions to the jury cannot compensate, resulting in an unfair trial. We cannot say that the judge was wrong to consider that the appellant would be able to have a fair trial. It was for these reasons that his appeal on the substantive ground was dismissed. 29. However, as stated above, the convictions on counts 5 and 6, together with the sentences imposed in respect of them, must be quashed for the reasons to be found at the beginning of this judgment. That, however, does not undermine or affect the other sentences handed down by the judge, or the appellant’s overall sentence of 7 years’ imprisonment. At any rate to that extent, the appellant’s appeal was allowed.

2012_04_25-2968.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/791/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/791

e84ae8c3f4ff77aa429763bfa989e3dfe85d332a88c05f80eaba45285b3a622d

[2015] EWCA Crim 632

EWCA_Crim_632

crown_court

Case No: 201403628 B3 Neutral Citation Number: [2015] EWCA Crim 632 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS H. H. Judge Pillay T20137289 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/04/2015 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE CRANSTON and MR JUSTICE SINGH - - - - - - - - - - - - - - - - - - - - - Between : GENNADIJ RAIVICH Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - -

Case No: 201403628 B3 Neutral Citation Number: [2015] EWCA Crim 632 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS H. H. Judge Pillay T20137289 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/04/2015 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE CRANSTON and MR JUSTICE SINGH - - - - - - - - - - - - - - - - - - - - - Between : GENNADIJ RAIVICH Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - William Clegg Q.C. for the Appellant Thomas Wilkins for the Crown Hearing date : 12 March 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Brian Leveson P : 1. On 27 June 2014, in the Crown Court at Blackfriars before H. H. Judge Pillay and a jury, the appellant (who is now 52 years of age) was convicted (by a majority verdict) of two counts of sexual assault, contrary to section 3 of the Sexual Offences Act 2003 (“ the 2003 Act ”). The jury failed to reach agreement in relation to five counts of assault by penetration and three counts of sexual assault: these were ordered to lie on the file on the usual terms. 2. On 30 September 2014, on each count concurrently, Judge Pillay sentenced the appellant to a term of 9 months’ imprisonment suspended for 2 years. In addition, a Sexual Offences Prevention Order was made under sections 104 and 106 of the 2003 Act until further order and he was required to comply with the notification provisions set out in Part 2 of the 2003 Act . Finally, he was ordered to pay £5000.00 towards the costs of the prosecution. He now appeals against conviction by leave of the single judge on the sole ground that the convictions recorded on two counts in relation to a complainant, C, were inconsistent with the jury’s failure to agree in relation to the remaining eight counts and, in particular, the other four concerning C. 3. The appellant is a professor of perinatal neuroscience conducting research into brain injuries in children and into how adult brains regenerate after damage. He qualified as a medical doctor in Germany but he is not registered with the General Medical Council and is not licensed to practice as a doctor in this country. At the time of these events, he was a man of good character. 4. The case concerns the appellant’s activities outside his professional life. Thus, various internet sites exist which provide women seeking sperm donations with introductions to men who are prepared to provide them. The appellant was one of these men and the three female complainants met him through an internet forum dedicated to the subject. The domestic arrangements made through the internet sites are legal, no charge is made and, in the case of the appellant, the donation of sperm was made by way of the woman injecting herself with a syringe or by the appellant inserting a speculum into her vagina and injecting his sperm into or at the entrance of the cervical channel. 5. The arrangements into which the appellant entered were necessarily informal and, whilst legal, were outside the normal regulatory framework imposed by the Human Fertilisation and Embryology Authority. The service that he provided included home visits to the women when necessary; in each of his dealings with the complainants he used a pseudonym. He claimed to have fathered some 58 children by these methods. 6. The Crown’s case was that when the appellant met the three complainants in order to inseminate them, he took advantage of their desperation to have a baby, his anonymity and the informality of the arrangements by committing various types of sexual assault upon them. The only convictions returned by the jury concerned one complainant (‘C’) whose complaints were reflected in six counts, two of which concerned an attempt to inseminate her on 21 November 2012, the remaining four relating to her further visit on 27 November. No point is taken on the fact that no verdicts could be reached in relation to the other complainants and, as a result, we do not summarise the evidence relating to them. 7. Focussing on 27 November, count 4 (assault by penetration) alleged the insertion of fingers into C’s vagina after production of the semen sample but before the semen was introduced. Count 5 (sexual assault) alleged rubbing of C’s clitoris after the insertion of the speculum. Count 6 (sexual assault) alleged that the appellant had grabbed one of C’s breasts after the introduction of the semen sample and count 7 (assault by penetration) alleged further insertion of fingers into C’s vagina to stimulate her after the introduction of the semen sample. In relation to counts 4 and 5, the defence was that C consented to the alleged sexual activity, that it was engaged upon during the course of sexual stimulation and, more particularly, at a time when C was performing consensual oral sex upon the appellant. In relation to counts 6 and 7, it was denied the alleged activity took place. Convictions were returned on counts 5 and 6; the jury failed to agree in relation to the other counts. 8. It is necessary to examine the facts (including the history of the relationship between the appellant and C) and the allegations in relation to 21 November. C said that she was a member of a sperm donation forum called Tadpole Town and that the appellant contacted her in about March 2012. They first met on 5 September 2012 when she travelled from Cambridge to London by train and was met by the appellant at King’s Cross station. She waited for him in a park whilst he went and prepared a donation. He came back and they went to his flat where he told her to take her jeans and underwear off and to lie on the sofa. The appellant had told her through emails that he was a GP and knew how to perform “ICI” which was intra-cervical insemination. This involved inserting a speculum into the vagina so that the cervix could be seen. A syringe was then used to put the sperm straight onto the cervix. 9. C lay down on the sofa and the appellant inserted the speculum into her vagina. He put his donation of sperm into the syringe and after taking the speculum out put an empty syringe in, acting like a plug. C lay there for an hour. The appellant sat in the chair and they talked. After about 20 minutes he took the syringe out. He started talking about “AI+” (Artificial Insemination Plus) which involved the recipient stimulating him to produce the sample. C was not particularly comfortable with that proposal but he kept saying it was more pleasurable for him and would be quicker. C said she would think about it. After about an hour she got up and got changed. The appellant walked her back to the tube station and she went home. 10. C did not become pregnant following their first encounter but they remained in contact by email and met again on 21 November 2012. In his e-mails the appellant kept asking for AI+ because it would be quicker and easier but C remained uncomfortable with the idea: it was not something she really wanted to do. The appellant met her at King’s Cross station and they went straight to his flat. C went to use the bathroom. When she came out the appellant had laid cushions on the floor of the living room and he was taking his trousers off. He said he wanted AI+ because it would be quicker and he had not had time to produce a sample himself. He said that if she did not do it she would not get a donation. She wanted a donation of sperm so, in the circumstances, she agreed. 11. The appellant took his underwear off. C knelt beside him and performed what was described as AI+ orally. The donation was ready in about 30 seconds. Whilst she was doing it the appellant kept asking her to take her clothes off so he could touch her. She kept declining. She told him she did not mind doing AI+ because that was what he wanted but she said that she did not want anyone touching her. She refused to take her clothes off. He kept reaching out and rubbing her bottom, trying to put his hands down her waistband. She moved away a bit and he tried to put his hand up her top. She moved away and got up. 12. The appellant told her to take her bottoms off and get on the sofa. He went to get dressed and she lay down on the sofa ready for ICI. Before he inserted the speculum, he put his finger inside her: this was reflected in count 2. She thought he was feeling for where the speculum was going and she did not say anything. He inserted the speculum, drew the sperm up in the syringe, put the donation inside and put an empty syringe inside her to act as a plug. 13. The appellant then knelt beside her on the sofa and they were talking. He then reached over with his left hand, put his hand on her vagina and slid a couple of fingers inside at the top. He then moved them up and rubbed her clitoris. She told him to stop because that was not what she was there for. He kept telling her that having an orgasm would increase her chances of getting pregnant. He tried to do it three of four more times but stopped when she asked him to: this conduct was reflected in count 3. He kept asking to see her breasts because as a doctor he said he could tell if she had polycystic ovary syndrome (“PCOS”) by looking at her breasts. He then said it was time for her to go and she made her own way to the tube station. 14. The third donation was only a week later because C kept getting positive ovulation tests. They agreed to meet on 27 November and in their emails they talked about AI+. C agreed because she knew it would be quicker and the appellant said that if she did not do it she would not get a donation. The appellant met her at King’s Cross station and they went to his flat. The cushions were already on the floor. The appellant took his trousers off and asked C to take his underpants off. She declined and so he took them off himself and she knelt on the floor to perform the AI+. He asked her to take her clothes off so he could touch her and she said no. The donation took about 5 minutes. He kept trying to touch her, to touch her bottom and slide his hand down the back of her jeans but she moved away. 15. When the AI+ was finished, the appellant told her to take her bottoms off and get on the sofa. He went and got dressed then came back. Before he inserted the speculum he put his fingers inside her and kept moving them in and out of her vagina: this was count 4. C knew that it was not normal. She asked him please to stop. He did so, took the speculum and put it inside her in a way that she described was really rough. She yelled because it hurt. He got it in place then got the donation in the syringe and put it inside her. He did not put an empty syringe inside, but placed his hand on her stomach, ran his hand down her stomach and rested it on her vagina like before. He kept putting his fingers inside her and rubbed her clitoris. She told him to stop. He stopped but did it again about three more times: this was reflected in count 5 upon which he was convicted. 16. The appellant then sat up and grabbed her breasts and started squeezing them over the top of her t-shirt. He shoved one hand up her top and into her bra and grabbed her breasts: this led to count 6 on which he was also convicted. With the other hand he put his fingers inside her and moved them in and out: this was reflected in count 7. He looked at her and asked if she was enjoying it. She said no and told him to stop. She pushed him away, got up, left the flat and found her own way back to the station. 17. She said that she agreed to intra-cervical insemination because the appellant told her he was a doctor and that he knew what he was doing. She agreed that she would have had AI+ with him (that is to say, given him oral sex) even if he had not been a doctor because she felt pressured but wanted her donation of sperm. She was desperate to get pregnant and that was all that was on her mind. 18. When cross-examined, C said that the appellant effectively blackmailed her into doing AI+ and repeated that she felt pressurised because without it she would not get a donation. She could not, however, find any emails or texts where the appellant had demanded AI+ and her evidence was said to be contradicted by an e-mail produced by the appellant in which she said, prior to 21 November, that “I’d be happy to try AI+ if you wanted” and, prior to 27 November, “Are we doing AI+ again? I’m happy to do so if you want”. C denied that either on 21 or 27 November she had consented to the appellant either inserting his fingers into her vagina or touching her clitoris to stimulate her whilst she was performing oral sex on him. She rejected the suggestions put to her that the appellant never inserted his finger into her vagina after having made the donation and that on no occasion did he ever touch her breasts over or under her shirt. 19. C said that she would never have consented to conception by sexual intercourse (referred to as “NI” on the various websites) although it was established that she had advertised over the internet for a donor stating “either AI or NI whichever the donor was happy with”. She also denied ever having sexual intercourse with a donor, but when referred to an email where she had written “Okay, I met a lovely donor from the site and we had our first NI attempt this month…”, she accepted that she had slept with the individual concerned but they had first met as friends. 20. When interviewed by the police, the appellant denied any offending and asserted that sexual contact that did occur took place with the consent of the complainant. He was asked about touching C’s clitoris and observed: “There is an opinion on orgasm may be increasing a chance. I don’t remember if I actually stimulated her. I must say but there is an opinion that orgasm can increase [the chances of getting pregnant] but I can’t say for sure that I stimulated or not.” He repeated that he did not remember in relation to C but said that it was “not normal”. When asked about whether he had done so with others, he said “only with implicit consent”. He denied putting two fingers into her vagina after the donation saying “this makes absolutely no sense”. 21. We can deal shortly with the expert evidence called by both parties. It is only necessary to deal with three issues. As to inserting a finger into the vagina to determine the position of the cervix, Dr Elson (for the Crown) said that the purpose of using a speculum was to avoid the use of fingers and there was nothing to suggest that a digital examination was necessary before doing so. There would be no need to insert a finger post donation. When cross-examined, she denied that it could be necessary to insert a finger into the vagina in order to determine which way the cervix was pointing save, perhaps, when training medical students and then only with the patient’s consent; Professor Grudzinska (for the appellant) said that if advised that seeing the cervix by speculum was difficult or painful, he would insert a single digit to do so. 22. Second, in relation to stimulation of the clitoris, Dr Elson made it clear that there was no evidence that such activity increased the chances of conception. Professor Grudzinska, on the other hand, said that orgasms in cows and rats boosted the chance of conception; when this was put to Dr Elson, she said that there was no evidence for such an effect in humans. 23. Third, Dr Elson said that there was no co-relationship between fertility and breast examination; Professor Grudzinska said that he would carry out breast examinations in certain circumstances, for example in young women if there was irregular menstruation or an absence of menstruation or a hormonal difficulty. When asked if one could tell if a woman was fertile by virtue of looking at her breasts, he said that if she was exposed to male hormones, one would look to exclude hairs or any other masculine feature. 24. The appellant did not give evidence at his trial, relying on his interviews with the police. On the other hand, evidence was called or read from some 15 (of over 50) women whose children he had fathered all of whom all spoke of the care and support he had given them. Mr Thomas Wilkins for the Crown pointed to the fact that some said that he had only produced a sample and left it to them to insert it; others spoke of his use of a syringe; yet others referred to digital penetration as part of his attempts at intra-cervical insemination using a speculum. None suggested that the appellant had touched their breasts, had sought to stimulate their clitoris or, indeed, penetrated them with a finger after (as opposed to before) the act of insemination. 25. The issues before the jury in relation to each of the counts concerning C were whether (a) the appellant had penetrated or assaulted C as she alleged, the penetration or assault being sexual in nature; (b) he had done so intentionally; (c) whether C had consented either expressly or by implication to the penetration or assault; and (d) whether the appellant reasonably believed that C had consented either expressly or by implication. As for counts 4 and 5, there was no issue but that the appellant had deliberately penetrated C’s vagina and stimulated her clitoris but had done so with C’s consent; as for counts 6 and 7, the appellant challenged the allegation that he had touched C’s breasts or digitally penetrated her vagina after insertion of sperm. 26. Mr William Clegg Q.C. for the appellant contends that the convictions for stimulating C’s clitoris and touching her breasts are inconsistent with the jury failing to agree on the remaining counts and failing to agree on similar allegations for 21 November, particularly having regard to the issues of credibility surrounding C’s evidence. He points to the fact that in her ABE interview, C described the circumstances of both dates in similar terms and, in relation to counts 6 and 7 described the two incidents in the same sentence in these terms: “[T]hen after a few minutes, he shoved one hand up, up my top and into my bra, and grabbed my breast, and with the other hand he put his fingers inside me (indicates) and moved them in and out and just looked at me and asked if I was enjoying that. Erm, I said no and that he had to stop, and I wanted to go, so I pushed him away. I got off the sofa, got my stuff ready … and just went out of his flat…” 27. Mr Wilkins argues that it is impossible to say verdicts are inconsistent when comparing counts where a jury convicted with counts where they had not returned any verdict at all. In any event, given the entirety of the evidence (including the expert evidence), the different outcomes on counts 4 and 7 and counts 5 and 6 are entirely justifiable and by no means unsafe. 28. The approach of the court to allegations of inconsistent verdicts is summarised in R v Dhillon [2011] 2 Cr App R 10 , [2010] EWCA Crim 1577 in these terms (per Elias LJ at [33]): “It is notoriously difficult successfully to challenge a jury’s verdict on the grounds that inconsistent verdicts have been returned. We have been referred to a number of authorities which in our view establish the following principles: 1. The test for determining whether a conviction can stand is the statutory test whether the verdict is safe. 2. Where it is alleged that the verdict is unsafe because of inconsistent verdicts, a logical inconsistency between the verdicts is a necessary condition to a finding that the conviction is unsafe, but it is not a sufficient condition. 3. Even where there is a logical inconsistency, a conviction may be safe if the court finds that there is an explanation for the inconsistency. It is only in the absence of any such explanation that the court is entitled to conclude that the jury must have been confused or adopted the wrong approach, with the consequence that the conviction should be quashed. 4. The burden of establishing that the verdict is unsafe lies on the appellant. 5. Each case turns on its own facts and no universal test can be formulated.” 29. Furthermore, it is also clear that a verdict will not be illogical simply because credibility is in issue in circumstances when each count depends upon the uncorroborated account of a single complainant, and the jury convicts on one count but acquits on another, neither credibility nor reliability being a seamless robe (see R v G [1998] Crim LR 483 per Buxton LJ). Having made that point, Elias LJ goes on (in Dhillon at [41]): “Generally, therefore, in sex cases where it is alleged that different sexual incidents occurred on separate occasions, verdicts will not be inconsistent simply because a jury convicts on some counts and acquits on others, because there is likely to be an obvious legitimate chain of reasoning to explain the verdicts. The jury may be sure that a witness has reliably recalled one incident but remain unsure about another; or they may consider that some incidents are exaggerated or fabricated but not all. There have been numerous cases of this nature where challenges on the basis of inconsistent verdicts have unsurprisingly failed: e.g. R v Bell (unreported 15 May 1997) and R v VV [2004] EWCA Crim 355 .” 30. When various alleged offences are different facets or acts in the course of a single sexual encounter, however, the position might be different. Elias LJ went on: “In these circumstances, if the jury is unsure of the complainant’s evidence with respect to one count on the grounds that it may be unreliable or lacking credibility, it is likely to be more difficult than it would be with respect to chronologically separate encounters.” 31. Such a conclusion is by no means inevitable. In R v Wilson [2011] EWCA Crim 1917 , a count of false imprisonment, two counts of oral rape, and counts of anal rape and vaginal rape arose out of the same incident involving a single complainant; the jury convicted by majority of false imprisonment (11-1), and oral rape (10-2), acquitted of anal rape and the second oral rape and could not agree in relation to vaginal rape. Dealing with the contention that the verdicts were inconsistent, Moses LJ said (at [28]): “In our judgment, the error in the submissions advanced on behalf of the appellant is in thinking that the acquittals demonstrate that the jury in relation to those counts on which they acquitted … did not believe the complainant. That simply does not follow. The question for the jury was whether they were sure the complainant was telling the truth. It was open to the jury to conclude … that whilst they did not disbelieve her, they were not prepared to say that they were sure, absent supporting evidence. It is perfectly true that the supporting evidence, particularly the forensic evidence, might have been regarded as supporting evidence for the other counts as well. But not necessarily so …” 32. In any event, the position is rendered even more complicated by the fact that, in this case, it was not that the jury acquitted, but rather that they failed to agree. That situation arose in R v Formhals [2014] 1 Cr App R 35 , [2013] EWCA Crim 2624 which emphasised that although the failure to agree was self evidently not a verdict, “linguistics ought not to be allowed to triumph over justice” so that the principles relating to inconsistent verdicts should be applied by analogy where “it was simply logically inexplicable”. Davies LJ made it clear (at [28]): “It will be a rare case indeed where a failure to reach a verdict can be said to be logically inexplicable when contrasted with or set against a verdict or verdicts which have been reached. If such an argument is to be run, it will have to be run in cases which will call for the closest scrutiny by the court. Moreover, such an argument has to be run in circumstances where the principles applicable to inconsistent verdicts (in the true sense of the words) are - as has long been established - themselves very tightly prescribed: see, amongst other cases, Dhillon … as further amplified by the judgment of the court delivered by Jackson LJ in the case of Dobson [2011] EWCA Crim. 1856. The bar is thus set high for the application of the principle of inconsistent verdicts. It can be set no less high, and perhaps is set higher, where the attempt is to compare and contrast a verdict of guilt with a failure by the jury to agree.” 33. Against that background, these verdicts fall to be considered. Mr Clegg sought to argue that they fell into two pairs. In counts 4 and 5, it was agreed that the appellant had done the physical acts alleged and that each would amount to the offence if done without consent and the defence was consent. This was how the case was left to the jury and no reasonable jury could distinguish between the two counts, both taking place immediately prior to the insemination procedure at a time when C was giving or had had just given the appellant oral sex. Either she consented, so runs the argument, or she did not. 34. In our judgment, that analysis does not address the totality of the evidence or the obligation on the Crown to prove both lack of consent and lack of reasonable belief in consent. There is no doubt that C consented to such steps as were important to maximise the prospects of her becoming pregnant and, furthermore, given the extremely intimate nature of the contact to which she was prepared to consent, the appellant was reasonably entitled to believe that she did consent to that which achieved her aim. In those circumstances, the jury were clearly entitled to reject the suggestion that stimulating the clitoris was for a purpose other than sexual gratification (preferring the evidence of Dr Elson to that of Professor Grudzinska relating to cows and rats but not replicated in humans). 35. Equally, the jury could conclude that Professor Grudzinska’s evidence that he had inserted a finger into the vagina prior to using a speculum was significant. Even taking account of Dr Elson’s more nuanced view that this would only be to train medical students, it is entirely understandable that it could create (at least for some members of a jury) a doubt whether in relation to the digital penetration prior to insemination, the appellant may reasonably have believed that he had C’s consent on the basis that it was necessary to maximise the prospects of successfully identifying where the semen should be inserted. 36. As regards counts 6 and 7, the defence was that the appellant neither penetrated C’s vagina a second time, nor touched her breasts. In these cases, Mr Clegg argued that everything depended on the resolution of the direct conflict of evidence between C and the appellant (based, in the latter case, on what he said in interview only). Once the jury could not agree in relation to the penetration count, to convict of sexual assault in respect of C’s breasts had to reveal an inconsistent to the assessment of evidence and could not be sustained. 37. Notwithstanding that there was no suggested justification for the penetrating the vagina after the act of insemination, it is important to underline that the alleged conduct is identical to the admitted conduct prior to insemination. The appellant explained in interview that there was no justification for behaving in that way after insemination which is why he denied doing it. Quite apart from the possibility that the jury (or, more accurately, some members of the jury) could have concluded that she was mistaken as to the number of times that this happened, a number could equally plausibly have concluded that the fact that the admitted identical physical act might have been consensual beforehand could have impacted on their view of the same conduct subsequently. 38. That argument was not open in relation to the touching of C’s breasts. Mr Wilkins postulates that calling expert evidence to justify the potential legitimacy of breast examination in assessing reproductive potential might have impacted on the credibility of the appellant’s denial. Whether that is so or not, it was entirely open to the jury to believe C in relation to this allegation and to reject the evidence of the appellant. 39. Mr Clegg also argues that C’s untruthful evidence in relation to the sending and receipt of e-mails prior to the third donation itself undermined her other evidence and, together with the fact that the jury did not agree in relation to 21 November along with the arguments open to him in relation to the two adverse verdicts, are sufficient to render the convictions unsafe. Relevant here are the observations of Moses LJ in relation to whether a complainant’s evidence was believed and also the observations of Davis LJ in relation to the burden on the appellant and the high hurdle that has to be overcome especially where the attempt is to compare and contrast a verdict of guilt with a failure by the jury to agree. 40. It is sufficient to conclude that the appellant has not overcome this hurdle in this appeal. The jury had all the facts covering all the allegations; no objection is made to the evidence, the procedure or the summing up. It was made clear that separate verdicts were required on each count in respect of each complainant and that different verdicts could be returned in respect of different counts depending on the findings of fact. In this case, in the light of all the evidence, to seek to challenge the two adverse verdicts and to contrast them with the counts on which no agreement was reached is to undermine that direction. 41. The jury was entitled to consider the evidence of C, the expert evidence, the contrast with what the character witnesses said happened to them, the appellant’s interviews and the circumstances (including his decision not to give evidence) and reach their conclusions based upon all of it. It is not sufficient simply to look at the evidence of C to justify the allegation of inconsistency. This appeal is dismissed.

2015_04_17-3591.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/632/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/632

c64c873b54df3f2575ef36f6e661ef030b48cd39a3e8cc27c84fac0071dceac5

[2011] EWCA Crim 880

EWCA_Crim_880

crown_court

No: 201005564 A3 Neutral Citation Number: [2011] EWCA Crim 880 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 15th March 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE KEITH MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - R E G I N A v KEVIN DAVID SPARKES - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel N

No: 201005564 A3 Neutral Citation Number: [2011] EWCA Crim 880 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 15th March 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE KEITH MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - R E G I N A v KEVIN DAVID SPARKES - - - - - - - - - - - - - - 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 7422 6138 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr M Lowe appeared on behalf of the Appellant - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE KEITH: On 28th September 2010 at Northampton Crown Court, the appellant was sentenced by Judge Wide QC to three years' imprisonment for two offences of burglary and three years' imprisonment for two offences of theft. He had pleaded guilty to all four charges. All the sentences were ordered to run concurrently with each other, but consecutive to sentences totalling five years' imprisonment which he was currently serving and which had been passed by the same judge, also at Northampton Crown Court, on 14th June 2010. He now appeals against the sentences imposed on him on 28th September 2010 with the leave of the single judge. 2. The offences for which the appellant had been sentenced on 14th June 2010 related to two domestic burglaries which the appellant had committed with another man exactly a year earlier on 14th June 2009. Both the burglaries had been committed at night. One of them related to an isolated farmhouse which was occupied at the time. Car keys were stolen. The keys were used to remove an expensive high-performance car from the driveway at the farm. The second burglary related to a house which was also occupied. This time a handbag was stolen from the kitchen. The appellant and his co-defendant were chased by the police in the car they took in what the judge described as colossal speeds, including going through one village which had a 30 mile an hour speed limit at something approaching 90 miles an hour. That had resulted in the appellant and his co-defendant being charged with aggravated vehicle taking as well. The judge took six years' imprisonment as his starting point for the totality of the appellant's offending that night, but sentenced him to five years' imprisonment in all to reflect his, albeit late, pleas of guilty. 3. The four offences which the appellant was sentenced for on 28th September 2010 had been committed while he had been on bail for the June 2009 offences. The burglaries were night-time domestic burglaries of homes which were occupied at the time by couples and their children, and the thefts related again to expensive high-performance cars which the appellant stole with keys he had taken from the premises. The first burglary was committed on 11th April 2010. Although the appellant was seen by the householder, there was no confrontation between them. The second burglary was committed on 5th May 2010. This time the appellant had driven off before the householder saw him. Both of the cars were recovered, and victim impact statements said that both families were still frightened and their sleep was affected. It is said on the appellant's behalf that the intrusion into the victims' homes was minimal. It was not as if vulnerable victims had been targetted or items of sentimental value taken, or as if untidy searching, ransacking or gratuitous vandalism had taken place. All that is true, but these were nevertheless serious offences. 4. The judge gave the appellant credit for his pleas of guilty, but he noted that the appellant had initially spurned the opportunity to plead guilty to these offences when he was sentenced for the offences committed in June 2009, and that he had waited instead to see whether there was forensic evidence by which the prosecution could prove his involvement in the April and May 2010 offences. He only pleaded guilty on the day his case was due to be listed for an adjourned plea and case management hearing and following Judge Wide's refusal to give a Goodyear indication in his case. 5. The appellant is 28 years old. He has a number of previous convictions, including convictions for domestic burglaries. In October 2003 he was made the subject of a curfew order for a domestic burglary. In November 2006 he was sentenced to 20 months' imprisonment for another one. And then, of course, there were the two domestic burglaries for which he was sentenced to five years' imprisonment in June 2010. Plainly, a substantial sentence of imprisonment was called for, and at first blush it had to be for at least three years in the light of the mandatory minimum sentence for a third domestic burglary required by section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 , unless there were particular circumstances relating to any of the offences or the appellant which made it unjust to pass the minimum sentence. Indeed, sentences totalling three years' imprisonment are not criticised, nor could they. The only ground of appeal relates to totality as a result of the judge ordering that the sentences of three years' imprisonment should be served consecutively to the five years' imprisonment the appellant was serving for the June 2009 offences. 6. In Watts [2000] 1 Cr App R (S) 460, it was said at page 463 that "although it may be proper to make a sentence consecutive to one passed on an earlier occasion, particularly where the second offence has been committed while on bail for the first offence, the court must nevertheless have regard to the totality of the sentence going to be served. If the offence had fallen to be dealt with at the same time would the same total sentence have resulted?" It is perfectly true that the appellant could have avoided being sentenced on two separate occasions had he pleaded guilty to these offences when he was sentenced for the June 2009 offences, but the fact that he chose not to plead guilty then should be reflected in the limited discount which he should be given for his late pleas of guilty, rather than denying him the opportunity to have his offending considered on the basis of totality. Bearing in mind the judge's starting point of six years' imprisonment for the June 2009 offences, and the late pleas of guilty for the current offences, making the three years' imprisonment consecutive to the sentences for the June 2009 offences means that the judge must have taken a notional starting point in the region of nine and a half years' imprisonment for all the appellant's offending. We think that that was too long, and that it should have been of the order of eight years' imprisonment. Giving the appellant an appropriate discount for the late pleas of guilty in both sets of cases, we think that the overall sentences should have totalled six and a half years' imprisonment. 7. But how does that fit in with the complicating factor of section 111 ? Unquestionably the sentences had to be consecutive. Yet if the minimum sentence was imposed consecutively, the totality principle would be breached. The answer lies in the court's power not to impose the minimum sentence where the particular circumstances relating to the offences or the offender make it unjust to pass the minimum sentence, taking into account the appellant's pleas of guilty which the judge was entitled to give effect to pursuant to section 144(2) of the Criminal Justice Act 2003 . That enables the court to give effect to totality and to the appellant's pleas of guilty. That is what was said in Raza [2010] 1 Cr App R (S) 56 , in which the headnote, which accurately reflects what the court said, reads: "Where an offender is convicted of a number of offences, one of which is subject to a mandatory minimum sentence, the principle of totality applies and requires the sentencing judge to consider whether the aggregate of consecutive sentences produces a total term which is disproportionate to the overall criminality of the offender's conduct, but the principle of totality should be applied in such a way that it does not undermine the will of Parliament by substantially reducing an otherwise appropriate consecutive sentence for another offence so as to render nugatory the effect of the mandatory minimum sentence." 8. In our judgment, since the principle of totality required the appellant to be sentenced to a total of six and a half years' imprisonment for his overall offending, it was unjust in these circumstances for the appellant to have been sentenced to consecutive terms of three years' imprisonment for the 2010 offences. We do not think that the will of Parliament will have been undermined if we substitute for the sentences of three years' imprisonment imposed by the judge for the 2010 offences sentences of 18 months' imprisonment, to be served concurrently with each other but consecutive to the sentences totalling five years' imprisonment imposed on 14th June 2010. To that extent this appeal is allowed.

2011_03_15-2661.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/880/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/880

6e4bba40d9b4192421d2d648a15a8afabf1b9f61563bd765f1d0b8be77c4de42

[2012] EWCA Crim 85

EWCA_Crim_85

crown_court

Case No: 2011/05432/A1 Neutral Citation Number: [2012] EWCA Crim 85 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIELD HIS HONOUR JUDGE KELSON QC T20117230 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/02/2012 Before: LADY JUSTICE HALLETT DBE MR JUSTICE EADY and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between: THE QUEEN Appellant - and - MATTHEW BRERETON Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 2011/05432/A1 Neutral Citation Number: [2012] EWCA Crim 85 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIELD HIS HONOUR JUDGE KELSON QC T20117230 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/02/2012 Before: LADY JUSTICE HALLETT DBE MR JUSTICE EADY and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between: THE QUEEN Appellant - and - MATTHEW BRERETON Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mrs Elizabeth Martin (instructed by Crown Prosecution Service ) for the Appellant Mrs Judith Seaborne Solicitor Advocate ( instructed by Howells Solicitors ) for the Respondent Hearing dates: 20 January 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Irwin: 1. On 7 September 2011 at the Crown Court at Sheffield before His Honour Judge Kelson QC, the Appellant pleaded guilty to count 2 on the indictment, an offence of possession of a disguised firearm, and was sentence to 4 years imprisonment. He appeals against his sentence by leave of the single judge. 2. The facts can be summarised as follows. At about 10.00pm on 7 May 2011, the Appellant was arrested, after he had been seen acting suspiciously close to a motor car. His home was subsequently searched and the officers found a safe behind a fireplace. The key to that safe was found on the Appellant and when the safe was opened, the officers found a stun gun disguised as a mobile phone. The Appellant declined to comment about the offence in interview but did say: “How did you know about the safe? I have had five house searches so far and nobody has found it.” 3. Arising from other matters which became evident at the same period, the Appellant was charged on 9 May 2011 with other offences: allowing himself to be carried in a stolen vehicle, handling a stolen Blackberry mobile telephone, going equipped for theft and criminal damage. 4. Good practice should have meant that the Appellant was committed for sentence to the Crown Court on all those matters, so that they could be dealt with together alongside the firearms matter. Instead, he was sentenced for the other matters on 31 May, receiving a total of 9 months imprisonment for those other offences, a sentence which of course he began to serve. He had been remanded in custody from 7 May. 5. The relevant statutory provisions applicable to the firearms offence are as follows: “ Firearms Act 1968 Section 5(1): A person commits an offence if, without the authority of the Defence Council, he has in his possession…… (b) Any weapon of whatever description designed or adapted for the discharge of any noxious liquid gas or other thing ……. Section 5(1A) Subject to Section 5 A of this Act , a person commits an offence if, ……….he has in his possession …… (a) any firearm which is disguised as another object.” 6. Whether a weapon constitutes a firearm, is a question of fact. However it is accepted as a matter of practice that a “stun gun” such as this, which discharges an electrical discharge, is a firearm. 7. By operation of Section 51 A of the Act a minimum sentence provision applies to any individual convicted of an offence under Section 5 (1A) (a) of the Act , that is to say an individual who possesses a disguised firearm. The minimum sentence provisions in their relevant part read as follows: “ Section 51 A(2) The court shall impose an appropriate custodial sentence ……for a term of at least the required minimum term……unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so. …….. (5) In this section the “required minimum term” means – (a)(1)…….5 years” 8. Thus, as a matter of law, there is a specific offence for a weapon designed to discharge a noxious liquid, gas or “other thing”. This weapon was designed for such a discharge, and thus possession of this weapon contravenes Section 5(1) (b). However, this weapon was disguised as a mobile phone. Despite the fact it is not a firearm in the ordinary sense of firing a projectile, Parliament has provided that such a disguised weapon falls within the minimum sentence provisions. For the purpose of convenience, we shall refer to the Section 5(1) (b) as the “lesser offence” and the Section 5 (1A) offence as the “greater offence”. 9. The Appellant was charged with the lesser offence on 9 May, the day after his arrest. When he appeared before the Magistrates Court (it would seem on 31 May) the greater offence was laid, not the lesser. That charge being triable on indictment only, was “sent” in accordance with the provisions of Section 51 of the Crime and Disorder Act 1998 to the Sheffield Crown Court. However, when papers were served on the Appellant, the Crown had reverted to the lesser offence. This represents the second change of mind on the part of the Crown. 10. The Defence acted on that premise and, after seeing the Appellant in prison, the solicitors wrote to the Crown Prosecution Serve on 15 July asking for the planned hearing on 2 August 2011 to be brought forward, so that the Appellant could plead guilty to the lesser offence and the matter would be resolved in that way. 11. We were informed in the course of the hearing by the defence, but confirmed in effect by prosecution counsel, that this has been and is a commonplace prosecutorial decision, at least in Yorkshire. Both parties are aware of a number of cases where the decision by the prosecution has been to opt for the lesser offence and prisoners are serving sentences for the possession of disguised stun guns far below the minimum level which would arise if the greater offence had been charged and the minimum sentence provisions applied. Examples of the weapons concerned include stun guns disguised as such objects as a knuckle duster. 12. The matter was listed on 20 July, so far as the parties were concerned on the basis that the Appellant’s plea of guilty to the lesser offence would be accepted and he would be sentenced on that basis. The case came before Openshaw J who raised the question of prosecution policy with the Crown. After some discussion, he declined to allow the plea to be entered and asked the Crown to engage in a full reconsideration of their decision in this case. He specified that thought should be given at the highest level to this charging decision. He observed, perfectly correctly, that: “Parliament has passed these laws for a purpose.” 13. On 12 August a fresh indictment was laid with 2 counts, containing one count of the lesser and one of the greater offence. On that day, the Appellant pleaded guilty to count 1, the lesser offence. An application was made to stay count 2 as an abuse of process, by reference to the changes of mind on the part of the Crown and reliance upon those changes by the Appellant. Even at this stage, having given an indication beforehand that the plea entered would be acceptable, it seems that the Crown perpetuated that understanding, and the Appellant continued under the misapprehension that such a plea would be acceptable to the Crown. However, in the event that position did not persist. 14. On 7 September, His Honour Judge Kelson QC heard a contested application to stay count 2. The Crown had reverted to seeking to support the greater charge. They succeeded in resisting the application to stay, for the reasons given by the Judge. Unfortunate though the Crown’s vacillation may have been, it did not amount to an abuse of process. The Judge then proceeded to sentence as we have indicated. 15. In the course of submissions on behalf of the Appellant, the Judge was asked to say that the history here, taken together with the inconsistent decisions on prosecuting others in indistinguishable circumstances, represented “exceptional circumstances” under Section 51 A (2) of the Act . In a carefully reasoned decision, the judge rejected that in relation to the offence but upheld the submission in relation to the offender. He did so, in part, in these words: “[The defence advocate] also relies upon the fact that, rather lamentably, the lower court decided to sentence you on 31 May for the associated criminal offending which gave rise to the police arrest resulting in the search that located this disguised stun gun. It is unfortunate. It would have been, in my view, much more appropriate for this court to have been seized of those matters as well as this matter in order that sentences could be passed concurrently on the same occasion because the consequence of the District Judge deciding to sentence in the lower court for the offence of, I think, handling and taking a motor vehicle and various other offences of going equipped and so on – they are all on your criminal record – means that you are now two and a half weeks away from release. That is not an attractive or appropriate state of affairs. …………. Exceptional circumstances concern the offence and the offender. I find no exceptional circumstances in respect of the offence. In respect of the offender I try and reflect some proportionality and try to reflect some sense of justice and the exceptional circumstances relating to you as an offender are the way you have been treated by the process in this case. It is much, much less than attractive and, in the circumstances, I reduce the sentence from 5 years to 4 years. Of course I have in mind your guilty plea but that cannot be reflected in a further reduction. I do have it in mind along with all the other matters in reducing the minimum term from 5 years to 4 years. That is my sentence.” 16. As a result of the Appellant’s record there is no personal mitigation in this case. The case turns on three key points. Firstly, it is clear that there has been an inconsistent and potentially arbitrary prosecuting policy as to whether to prosecute for the “greater” or “lesser” offence, or at the very least to accept a plea to the lesser offence as disposing of such a case. Secondly, in this case there was a lamentable series of switches of decision from one position to the other, raising and then dashing the expectations of the Appellant on more than one occasion. Thirdly, compounded with the other problems in this case, the Appellant was sentenced for the other offences before the Magistrates Court with a significant negative effect for him. Once sentenced, he naturally began to serve the sentence and was within three weeks of completing that sentence when he came before the judge. In ordinary circumstances, the judge could have put right the effect of split sentencing if he thought it right to do so, by reducing the sentence he passed to reflect the time spent serving the sentence passed by the Magistrates Court. However, where the judge was faced with a statutory minimum sentence of five years, it was not open to him to make such an adjustment in any other way than by treating the case as falling within the “exceptionality” category. 17. In the course of measured, frank and helpful submissions to the court, Mrs Martin, who was instructed on behalf of the Crown throughout in this case, confirmed the essential points of the story. She confirmed the incoherent prosecuting policy which appears to apply and explicitly accepted on behalf of the Crown that the judge was correct to find that there were exceptional circumstances obtaining in relation to this offender, because of the particular history. 18. Mrs Martin invited this court to consider whether there should not be an authoritative national policy on charging in these circumstances. The daily reality of prosecutorial decisions may be that greater or lesser offences are chosen to be preferred, and pleas are accepted or not to greater or lesser offences, depending upon the circumstances of each case. That is to be expected and gives rise to no criticism even if the consequences for defendants may be very considerable. However, we understand the concerns if apparently arbitrary decisions are taken in respect of offences and offenders leading to widely different disposals. The problem is accentuated by a statutory minimum sentence. If it were thought an arbitrary decision had been taken between an offence allowing the judge freedom to sentence appropriately for the offender, and another offence where the court’s hands are tied by a statutory minimum sentence, then such a decision might well give rise to a justified sense of grievance. We reach no conclusion as to the effect here. However, we do feel able to observe that it would assist the courts to promote consistency in sentencing if a coherent and principled policy as to prosecuting those found in possession of disguised stun guns was both devised and published. 19. We turn to consider what the judge did. The judge’s reduction for the circumstances in this case reflected the history of indecision about what offence to prosecute compounded by the “premature” sentence in the Magistrates Court. In the course of argument, we raised a concern as to whether this was in truth a legally proper basis for the application of the exceptionality test, but since both parties to this case accept the proposition here we do not seek to disturb it. We make it clear that this case should not be cited as a precedent in any other case with a view to the application of the exceptionality test. It is confined to its facts. 20. We have every sympathy with the judge’s attempt to do justice. In fact by the reduction of the sentence by one year he was able to put right the effect of the “premature” sentence in of the Magistrates Court. However, for that reason the reduction of one year had a limited effect only in reflecting the vacillation on behalf of the Crown as to how to proceed. 21. Had the Appellant been consistently prosecuted for the greater offence and committed by the Magistrates Court to be sentenced, in respect of all the offences together he would have faced a five year minimum term. It is highly likely in those circumstances the judge would have passed concurrent sentences for all offences. The Appellant would have been sentenced to that term probably in July or August of 2011 and the period on remand from 7 May would have counted against his sentence. His release date, assuming release on licence at the halfway stage, would have been likely to be in early November 2013. As it is, as a result of the judge’s sentence, it will likely to be the end of September or October 2013. It follows that the sentence has given the Appellant in practical terms some advantage over the position as it should have been had there been a coherent and vigorous prosecution for the greater offence. In our judgment that was a sufficient adjustment for those factors. 22. Mrs Seaborne for the Appellant submitted to us that the proper course for us is to reduce the sentence to the level it would have been had the Appellant been prosecuted for the lesser offence. We reject that submission. In the absence of a prosecution policy demonstrated to be arbitrary, it would not be right to do so. For those reasons this appeal is dismissed.

2012_02_03-2926.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/85/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/85

1585f9a29b220ca4b87112edb12aaff3762c2b5d9cad593e2175104b19c2b281

[2023] EWCA Crim 1015

EWCA_Crim_1015

crown_court

Neutral Citation Number : [2023] EWCA Crim 1015 Case Nos: 202301938 A1/202301941 A1/202301942 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT READING His Honour Nicholas Ainley T20217219 Royal Courts of Justice Strand, London, WC2A 2LL Date: 4 September 2023 Before : LORD JUSTICE WILLIAM DAVIS MRS JUSTICE CUTTS and MRS JUSTICE EADY - - - - - - - - - - - - - - - - - - - - - Between : A REFERENCE BY HIS MAJESTY’S SOLICITOR GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTIC

Neutral Citation Number : [2023] EWCA Crim 1015 Case Nos: 202301938 A1/202301941 A1/202301942 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT READING His Honour Nicholas Ainley T20217219 Royal Courts of Justice Strand, London, WC2A 2LL Date: 4 September 2023 Before : LORD JUSTICE WILLIAM DAVIS MRS JUSTICE CUTTS and MRS JUSTICE EADY - - - - - - - - - - - - - - - - - - - - - Between : A REFERENCE BY HIS MAJESTY’S SOLICITOR GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 ANTHONY WILLIAM BEARD ALAN THOMPSON CHRISTOPER ZIETEK Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jai Patel (instructed by Goldkorns Solicitors ) for Anthony Beard Craig Rush (instructed by Ewing Law ) for Alan Thompson David Nathan KC (instructed by Clarke Kiernan Solicitors ) for Christopher Zietek Joel Smith (instructed by Attorney General’s Office ) for Solicitor General Hearing date: 25 th August 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30am on 4 September 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. Lord Justice William Davis: Introduction 1. On 3 January 2023 in the Crown Court at Reading Anthony Beard who is now aged 61 pleaded guilty to count 1 (conspiracy to pervert the course of justice) and count 2 (conspiracy to make a false instrument with intent) on a four count indictment. His pleas were tendered on the day his trial was listed to commence albeit they had been indicated to the court and the prosecution shortly before that day. Beard had several co-accused amongst them Christopher Zietek (now aged 67) and Alan Thompson (now aged 73). The start of the trial of the co-accused was delayed for a few days. It occupied approximately nine working weeks before HH Nicholas Ainley and a jury. Zietek and Thompson were convicted of counts 1 and 2. They were also convicted of count 4 on the indictment (converting criminal property), namely the proceeds of the criminal conspiracies. 2. On 16 May 2023 the trial judge sentenced Zietek to a period of eight years’ imprisonment. This was made up of concurrent sentences of eight years on counts 1 and 2 and three years on count 4. He sentenced Beard to a period of six years eight months’ imprisonment. This sentence was imposed concurrently on counts 1 and 2. Thompson was sentenced to three years’ imprisonment on counts 1 and 2 and to 18 months’ imprisonment on count 4, all those sentences to run concurrently. 3. HM Solicitor General applied for leave to refer those sentences to this court as unduly lenient pursuant to Section 36 of the Criminal Justice Act 1988 . We heard the application on 25 August 2023. We announced our decision on the day of the hearing, namely that we granted leave to refer and that the sentences in relation to Zietek and Beard were unduly lenient. We quashed the sentence on count 1 in relation to those two offenders and substituted a sentence of 12 years’ imprisonment in relation to Zietek and a sentence of 10 years 2 months’ imprisonment in relation to Beard. We reserved our full reasons which we now give. The offences in outline 4. The conspiracies involved the acquiring of falsely obtained genuine (“FOG”) passports. They were acquired for and at the request of people involved in very serious criminality. Those criminals thereby were enabled to live abroad with an assumed identity without fear of arrest or extradition and to travel freely under their assumed identity. 5. The mechanism by which FOG British passports were obtained was as follows. A real person would be recruited to provide their identity for the passport. A renewal application would be made either on the basis that the previous genuine passport had expired or on the pretext that the previous passport had been lost or stolen. The application would be made on paper. The details of the applicant would be those of the real person. Those details by way of date of birth and description would approximate to those of the criminal to whom the passport was to be provided. The photograph sent to the Passport Office would be a photograph of the criminal. The photograph would be countersigned by someone purporting to identify the person in the photograph with the age and date of birth of the real person. The counter signatory would be available to confirm the details of the applicant in the event of any query from the Passport Office. Once approved and issued by the Passport Office, the FOG passport was genuine so far as any border or police checks were concerned. Since they were obtained with the knowledge and connivance of the people who were entitled to hold the passports, there was no real prospect of the fraud being uncovered. 6. As will become apparent, the conspiracies on occasion involved foreign passports. However, the principal focus was on the obtaining of British passports. Count 1 reflected the use to which the passports were put, namely to enable fugitive criminals to evade justice. Count 2 was the scheme by which the passports were obtained. Count 4 demonstrated that the scheme was profitable. The offenders 7. The indictment period was 1 January 2017 to 12 October 2021. The evidence before the jury concentrated on the period between early 2017 and the end of 2019. The offenders played different roles in the conspiracies. Zietek’s main residence was in Spain though he also had an address in London. From his base in Spain, he had connections with those involved in serious criminality. He was particularly connected with an organised crime network in Scotland. Criminals within that network were the main clients for the scheme with which the indictment was concerned. The judge found that Zietek was the organiser of the scheme. He offered a bespoke service to those needing the means to evade justice. Although he had not been convicted for many years, in 1984 he had been sentenced to a term of 10 years’ imprisonment for conspiring to rob using a firearm. 8. Beard lived in South East London. Once Zietek was contacted by someone who wanted a passport, Beard was the person who dealt with the entirety of the application process. As well as completing the relevant forms, he recruited the real person willing to give their identity for use in the application and the person willing to act as a counter signatory. Leaving aside his participation in the offences on the indictment, Beard between 2007 and 2019 committed 74 other offences of making a false instrument with intent. He acquired FOG passports on a regular basis throughout that period, the frequency of his fraudulent activity increasing as time went on. These passports were acquired for other people. More than 15 of the passports were provided to people who were subject to arrest warrants of one kind or another. By 2017 the acquisition of FOG passports was Beard’s trade. He was a natural supplier of such passports to someone like Zietek. Beard asked for the other 74 offences to be taken into consideration when he was sentenced. He had a history of involvement in false documents prior to this. He had been convicted of such offences in 1993 (in Portugal), 1997 and 2008. 9. Thompson lived in South London. He had come to know Zietek because his partner sometimes cleaned at Zietek’s London address and he would accompany his partner on those occasions. His part in the criminal scheme was to assist Zietek from time to time by (for instance) driving him around or delivering or collecting things. He participated in the criminal scheme and was useful to it. However, as the judge said when sentencing, he was never a necessity. The offending behaviour in detail 10. In the course of the trial evidence was called in respect of twelve individuals for whom a FOG passport was obtained. These individuals were wanted or fugitive criminals with the majority being linked to the organised crime group in Scotland with which Zietek was associated. In sentencing the trial judge gave what he described as “a few examples” as being illustrative of the criminal scheme. We shall deal briefly with nine of the individuals. 11. In 2013 a European Arrest Warrant (“EAW”) was issued in relation to a man named Michael Moogan . He was wanted for his involvement in a conspiracy to import cocaine from the Netherlands into the UK. He had agreed to purchase 60 kilos per month for importation. In May 2017 Beard applied for a passport in the name of Jack Perry. The photograph accompanying the application was a photograph of Moogan. Just after the issue of the passport Beard flew to Spain where he stayed for 36 hours. Unused passport photographs of Moogan were much later found at Thompson’s home. Those unused photographs bore traces of Zietek’s DNA. Moogan was eventually arrested in 2021 in Dubai. He did not then have the Perry passport. However, it had assisted in keeping him at large for nearly 4 years. He was extradited and pleaded guilty to drugs offences for which he was sentenced to 12 years’ imprisonment. 12. James Stevenson in 2017 was being investigated by the Scottish police. The investigation had the title Operation Escalade. He was suspected of involvement in the importation and supply of Class A drugs and associated firearms offences. In December 2017 Beard applied for a passport in the name David Morton. The photograph accompanying the application was a photograph of Stevenson. CCTV footage at around this time from Victoria station in London showed Beard and Stevenson together. It is apparent that Stevenson subsequently left the UK. An EAW was issued against Stevenson in August 2021 alleging involvement in conspiracies to import and to supply cocaine. A further EAW was issued in February 2022 for further offences involving the supply of cocaine and money laundering. He was arrested in May 2022 in the Netherlands. He is awaiting trial in Scotland. Stevenson was known to Zietek as evidenced by a photograph of them together at a party in 2004. 13. Graeme Wilson was a target of Operation Escalade. In 2014 he was imprisoned for supplying heroin and cocaine. After his release, he breached the terms of his licence and a notice of recall was issued. Further, in 2017 he was in possession of prohibited firearms (three sub-machine guns) and ammunition. He was wanted in respect of those offences. In May 2018 Beard applied for a passport in the name of David Cordell using a photograph of Wilson. It was issued in June 2018. It was passed on to Wilson. In July and August 2018 Wilson used the Cordell passport as identification in two different hotels in Spain. Subsequently, Wilson was stopped by the police in Spain. His true identity was discovered. He was extradited pursuant to an EAW which had been issued in February 2019. He has yet to be tried. 14. Paul Fleming was another man wanted by the Scottish police for offences involving importation and supply of Class A drugs, firearms offences and money laundering. In October 2019 Beard applied for a passport in the name of Joseph Allen. A photograph of Fleming was provided to the Passport Office. After the issue of the passport, there were meetings between Zietek and Beard which were the subject of NCA surveillance. Recordings of the meetings indicated that an item was to be delivered to a Scottish associate of Zietek. In May 2022 a TACA warrant (the successor to an EAW) was issued in relation to Fleming in respect of serious organised crime including supply of drugs. Fleming was arrested the following month in Alicante. He has been extradited and is awaiting trial. 15. Jordan Owen was wanted by the Scottish police for offences of murder and attempted murder. He was alleged to have shot two men (killing one of them) in July 2017. Thereafter, he was on the run. In January 2018 an EAW was issued in relation to those alleged offences. In September 2019 Beard applied for a passport in the name of Lee Bowler. He provided a photograph of Jordan Owen. The passport was issued after a short delay. In December 2019 recordings by the NCA of Zietek made it clear that he had initiated the order of the passport for Owen and that he knew the nature of the crimes alleged against Owens. He said that Owen “won’t get manslaughter, he shot a geezer in a motor….you were fucking organised crime…” In February 2020 Zietek was recorded as saying that he knew that Owen was wanted for murder. Owen had paid more for his passport than other criminals. The amount indicated was £17,000. Owen was arrested in December 2019 in Lisbon as a result of information provided to the Portuguese authorities by the NCA. At that point he did not have the Bowler passport. He was extradited. He has since been convicted of murder and sentenced to life imprisonment. 16. James White was alleged by the Scottish police to have been involved in the importation and supply of Class A drugs, possession of prohibited firearms and money laundering between 2015 and 2017. An EAW relating to those offences was issued in July 2018. In May 2018 Beard applied for a passport in the name of Christopher Lloyd using a photograph of White. Recordings by the NCA in May 2018 revealed discussions between Zietek, Beard and Thompson about the application. The discussions indicated their understanding of White’s status as a serious criminal. In the event the passport was not issued. However, in November of the following year Zietek obtained a FOG Latvian passport in the name of Svens Klave. Beard was not involved in this transaction. From recorded conversations it was apparent that the passport was provided via Russian connections of Zietek. It was delivered by Zietek’s daughter to White who by then was in Lisbon. In January 2020 White was stopped by Italian police. He showed the Latvian passport as proof of his identity. He was allowed to go on his way. White was arrested in Brazil in June 2020. He was extradited. He has since been sentenced for an offence of directing persons involved in serious and organised crime. 17. Christopher Hughes was a target of Operation Escalade. In 2016 he was involved in the murder of a Dutch crime blogger named Martin Kok. He was also involved in the supply of Class A drugs and firearms and associated offences. In August 2017 Beard applied for a passport in the name of Samuel May using a photograph of Hughes. The FOG passport was issued in the same month. In October 2018 Hughes was arrested in Portugal after a fight. He gave the name Samuel May and produced the FOG passport. In November 2018 an EAW was issued in respect of drugs and firearms offences. In March 2019 a second EAW was issued in relation to the murder of Martin Kok. By the later part of 2019 the fact that Hughes was a wanted criminal was general knowledge. In November 2019 Zietek obtained a FOG Latvian passport for Hughes in the name Aleksejs Rustanovs in the same way he had obtained White’s Latvian passport. It was delivered to Hughes in Lisbon at the same time as White received his Latvian document. Hughes was with White in Italy in January 2020. He had the Rustanovs passport with him. He was subsequently extradited. In 2022 he was convicted of murder and the drugs and firearms offences. 18. Barrie Gillespie was part of the Scottish police Operation Escalade. He was alleged to have been involved in the importation and supply of Class A drugs, grave assaults involving torture and supplying firearms. An EAW had been issued in his case as long ago as December 2012. In February 2017 Beard applied for a passport in the name of Glenn Cooley using a photograph of Gillespie. The passport was issued the same month. In October 2018 Gillespie was arrested in Portugal at the same time as Hughes. He produced the FOG passport in the name of Cooley. He was released on bail, the passport having protected his true identity. He did not answer his bail. His current whereabouts is unknown. 19. The offenders were arrested on 11 October 2021. Zietek made no comment in interview. In his evidence at the trial he said that he had no involvement in most of the FOG passport applications. Insofar as he had, it had been under duress from James White. Beard made no comment in interview. Thompson, having made no comment to the police, in evidence said that he knew nothing about the FOG passports and that, when he had handled documents, this had been in all innocence. The material before the judge 20. There were two reports from a drug and alcohol charity named Charis with which Beard had become involved following an admission to hospital in September 2022. From December 2022 Beard had been undergoing intensive therapy to address his very long standing alcohol addiction. His abuse of alcohol had caused minor brain damage which was likely to deteriorate. By the time of sentence Beard had been free from alcohol for around 20 weeks. He was said to be committed to continued abstinence from alcohol. 21. Anthony Thompson was the subject of a pre-sentence report. He was living in rented accommodation with a long term partner. His partner acted as his registered carer helping him with many day to day tasks including getting dressed. He was suffering from chronic lung disease and panic attacks for which he was prescribed medication. The author of the report concluded that Thompson lacked appreciation of the seriousness of the offending in which he had involved himself via Zietek. He said that Thompson would struggle in custody given his physical and mental condition. 22. The prosecution provided the judge with a full sentencing note. After setting out the prosecution case as to the respective roles of those to be sentenced, the note dealt with such sentencing guidance as there was for the offences of which the offenders had been convicted. Inter alia the note stated the following: “18. In relation to the conspiracy to pervert the course of justice, there are no sentencing guidelines for this offence, which is at large (maximum life imprisonment). Given that the offence can be committed in a myriad of different ways, and without any obvious case law with which to draw comparison, it may be of assistance to look at law relating to the count 2 conspiracy to make a false instrument first, before considering the perverting element as a highly significant aggravating factor (given that a concurrent sentence appears appropriate).” The note went on to refer to two particular authorities in relation to making a false instrument. The first was Velev [2008] EWCA Crim 2162 where the Court of Appeal said that: “….in cases of that sort (involving sophisticated passport-manufacturing conspiracies) organisers can expect sentences of 9 years after trial, while those who are workers and lieutenants would receive sentences in the order of six-and-a-half years after a trial.” It was conceded that Velev involved a very large quantity of counterfeit identity documents but they were of poor quality and there was no indication that they were to be put to use by sophisticated and serious criminals. The second authority was Mussa [2012] EWCA Crim 693 . That case concerned conspiracies to commit forgery on a vast scale with sophisticated passport factories at two addresses. The organiser/manager of that scheme was sentenced to 6 ½ years’ imprisonment after reduction for his plea of guilty. His appeal was dismissed. The note in relation to sentence on the principal counts concluded as follows: “…the court should consider that the starting point for the count 1 conspiracy for ZIETEK and BEARD should be in excess of, and likely considerably in excess of, the types of sentence envisioned in Velev & Mussa for those at the top of the hierarchy. It is submitted that a starting point in excess of 10 years is appropriate in this case, given the number of aggravating factors.” Count 1 charged the conspiracy to pervert the course of justice. Thus, sentence was at large as opposed to the maximum sentence of ten years’ imprisonment available for the offence of conspiracy to make false instruments. The prosecution note provided the judge with no authorities relating to the offence of perverting the course of justice. 23. Counsel for Zietek and Beard also provided sentencing notes. Both adopted the approach taken by the prosecution, namely that the existence of the conspiracy to pervert the course of justice should be taken as an aggravating factor of the conspiracy to make false instruments. They argued that the facts in Velev and Mussa concerned more serious offending than had been committed by Zietek and Beard. Thus, they said that the starting point should be significantly less than 10 years. In relation to the offence of conspiracy to pervert the course of justice, counsel for Zietek referred to the consultation guideline issued by the Sentencing Council in 2022 which indicated the prevailing level of sentencing for the offence of perverting the course of justice. It was not suggested that the judge should have regard to the draft guideline. Rather, it was appropriate to consider the review undertaken by the Council of current sentencing practice. The sentence 24. The judge opened his sentencing remarks as follows: “….all these counts are simply aspects of the same conduct and there will therefore be concurrent sentences passed. Counts 1 and 2 in particular deal with the same matters, though with a different emphasis. Count 2 is with the conspiracy with each other and with others to make fraudulent but genuine passports, and count 1 was merely providing those passports to the people who wanted or needed them to evade arrest or apprehension, the intention being that these people would use the passports that they would be obtaining to get out of the UK and travel freely, and so escape justice, thus perverting the course of justice. Count 4 is concerned with converting the cash proceeds that these services generated.” The judge went on to deal with the method by which the passports were obtained and to rehearse some examples of what was done as part of the criminal scheme. He set out the circumstances relating to Hughes, Gillespie, White and Owens. He noted that Zietek had been provided in 2017 with an Encrochat device in order to communicate with members of the organised crime group in Scotland. 25. The judge then turned to the general purpose of the criminal scheme which he described as follows: “It was to enable very rigid, sophisticated violent criminals to escape justice by providing them with documents that because they were genuine would deceive the authorities and enable them to escape. I regard this as an extremely serious aggravating factor. The use by criminals wasn’t just a possibility. It’s always a possibility when one is handing out false passports. It was the actual purpose of obtaining these passports and all three defendants knew it.” The judge found that Zietek was the organiser of the conspiracies. He did so having referred in terms to the fact that he had heard nine weeks of evidence and submissions in the course of the trial. Beard was described as the essential leg man who did all the work necessary to obtain the passports. The judge said that Thompson’s role was very much less. He was never a necessity to the operation of the conspiracy. 26. The judge concluded that the overall financial gain to the conspirators was relatively modest. There had been evidence that the cost of a passport to a criminal was £10,000 though there was an indication of a larger amount in the case of Owens who was wanted for murder. Beard’s share (according to his sentencing note) was £1,500 to £2,000 from which he had to pay those who provided their identities and who counter signed the applications. The judge accepted that, if Thompson benefited at all financially, it would have been very marginal. 27. Having noted the poor health and age of each of the offenders, the judge said this: “….I’ve considered the authorities that have been placed before me. I consider that this, because of the seriously aggravating feature, is a matter of – that comes very near the top of the scale when it comes to the conspiracy in count 2. But I will not double count and lengthen that sentence by imposing a heavier sentence than count 2 would permit on count 1. In my judgment, count 1 is simply, and is to be treated as, a deeply aggravating feature of count 2.” He imposed sentences of eight years’ imprisonment on counts 1 and 2 in relation to Zietek. He would have imposed the same sentence after a trial in the case of Beard because of the offences to be taken into consideration and Beard’s previous convictions. He reduced the sentence by 15% to take account of Beard’s pleas of guilty which brought the overall sentence down to six years eight months’ imprisonment. The overall sentence in Thompson’s case was three years’ imprisonment. The submissions 28. On behalf of the Solicitor General the core submission was that the judge adopted the wrong approach. Rather than treating the element of perverting the course of justice as an aggravating factor of the making of false instruments, he should have treated the conspiracy to pervert the course of justice as the lead offence with the false instruments being the means by which the course of justice was to be perverted. A number of authorities relating to those who had assisted an offender after a murder were cited to us. It was submitted that these authorities indicated that the appropriate sentence in the case of someone who provided false documents on a single occasion to someone seeking to escape justice would be in the region of six years’ custody. From that it followed that the appropriate sentence for those involved in a continuing scheme should be significantly longer than eight years' custody. 29. On behalf of Zietek Mr Nathan KC argued that the Solicitor General had not identified any principle or authority which had been ignored by the judge. He submitted that the judge, who had heard the trial, was well aware of the significance of the use to which the passports were put. He aggravated the sentence accordingly. He did not make the error purportedly identified by the Solicitor General. Mr Nathan also argued that the material revealed by the other offences which Beard asked to be taken into consideration shed a different light on the respective roles of Zietek and Beard. Whereas the prosecution had submitted that Zietek was the principal conspirator because he had the contacts with the Scottish organised crime group, a submission adopted by the judge when sentencing, the long list of other offences demonstrated that Beard had many criminal contacts of his own. Thus, Beard did not need Zietek to introduce him to people such as Hughes, White and Gillespie. 30. Mr Patel on behalf of Beard adopted the overarching submission made by Mr Nathan in relation to the approach taken by the judge. He noted that the judge had not been referred to any authority in relation to perverting the course of justice. Nonetheless, the judge had applied the principles set out in [2018] Abdulwahab EWCA Crim 1399 albeit without direct reference to that authority. 31. On behalf of Thompson it was argued that, irrespective of the view taken of the sentences imposed on Zietek and Beard, his sentence was not unduly lenient given his limited role, his age and his ill-health. Discussion 32. The correct formulation of what amounts to an unduly lenient sentence is still that provided by the then Lord Chief Justice in Attorney General’s Reference (No.4 of 1989) [1990] 1 WLR 41: “A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.” In this case, we must ask whether it was not reasonably appropriate to identify a sentence after trial of eight years’ custody in relation to Zietek and Beard and a significantly lesser sentence in relation to Thompson. 33. The judge was not given the assistance by counsel to which he was entitled. The prosecution invited him to consider first the authorities relating to conspiracies to make false instruments and then to use the element of perverting the course of justice as an aggravating factor. They gave him no guidance as to how he might assess the level of aggravation. Though their sentencing note suggested a starting point in excess of 10 years’ custody, this was in the context of the lead sentence being imposed on the count relating to making false instruments for which the maximum sentence was 10 years. The sentencing note submitted on behalf of Zietek referred him to the consultation guideline issued by the Sentencing Council in relation to perverting the course of justice. Although it was said that this was not done so that the judge could take the guideline into account (which would have been impermissible), that was the effect of the argument put on behalf of Zietek. 34. In those circumstances, it is not surprising that the judge took the approach as we have quoted at paragraph 27 above. Taking that approach meant that the maximum sentence open to him was 10 years’ custody. It could be said that, even on that basis, the sentence ought to have been nearer to the maximum. It would be difficult to say that the sentence imposed was unduly lenient. 35. The submission made by the Solicitor General involves a departure from the approach taken by the prosecution at the Crown Court. The position here is similar to that which sometimes arises in relation to categorisation of offending within Sentencing Council guidelines. The prosecution may suggest that an offence falls within a particular category of harm and culpability. The judge will sentence on that basis. The sentence then is referred as unduly lenient because the offence properly should have been placed into a higher category of harm and/or culpability. This is permissible: Stewart [2016] EWCA Crim 2238. However, the court in Stewart said this at [36]: We also add that where the Attorney-General or Solicitor General does in any particular reference seek to depart from a concession or acceptance made below by counsel for prosecution in the Crown Court, either as to the correct level of categorisation under any relevant guideline or as to the existence or absence of aggravating or mitigating factors, then this should be clearly and expressly flagged up in the text of Final Reference itself, with reasons given for so departing from the concession made below. We consider that the same principles apply where the Solicitor General seeks to depart from the approach to sentencing advanced by the prosecution in relation to different counts on the indictment. The Final Reference in this instance set out the error said to have been made by the trial judge. It did not say anything about the possible reason for that error or about the justification for departing from the approach taken by the prosecution in the Crown Court. On behalf of the Solicitor General it was said that both matters were implicit in the overall content of the Final Reference. That may be so. But the guidance in Stewart was that such matters should be expressly flagged up in the text. Having said that, we have concluded that the failure to follow that guidance has not caused any prejudice to the offenders. It formed no part of their submissions that the change of position in relation to the offending ought to prevent any exercise of our power under Section 36 of the 1988 Act . That is not to encourage a departure from the guidance in Stewart in future cases. 36. The authorities bundle provided to this court by the parties contained Velev and Mussa together with the authorities relied on by the Solicitor General involving assistance given by one or more persons to someone who had unlawfully killed another. The bundle also included Abdulwahab. We were not referred to the most recent decisions of this court relating to particularly serious instances of perverting the course of justice: Beech [2020] EWCA Crim 1580 ; Ahmed [2021] EWCA Crim 1786. The facts of those cases are different from each other and very different from the facts of this case. However, some general principles applicable to cases of real seriousness were outlined. In Ahmed at [45] and [46] the court said: A review of authority was undertaken in the application for leave to appeal in R v Beech (Carl) [2020] EWCA Crim 1580 , and the Court said (at [36]) that counsel had been unable to find any reported case where a sentence in excess of 12 years had been imposed for this offence. The court dismissed as unarguable Beech's application for leave to appeal against sentence of 15 years imprisonment following a trial for a number of offences of perverting the course of justice. This was the well-known case where, as the Court said at [11], Beech (known at the time of his offending pseudonymously as 'Nick') had been convicted of 'maliciously making lurid and the most serious false allegations against distinguished former public servants no longer alive' and of accusing 'living persons of the highest integrity and decency of committing vile acts, including rape, torture and child murder.' In fact, there is one reported case where a longer sentence was passed. On 19 November 2008 John Haase and Paul Bennett were sentenced to 22 and 20 years' imprisonment respectively for perverting the course of justice at Southwark Crown Court by Cooke J. The appeal of Haase and an application by Bennett were dismissed, see R v Haase and Bennett [2011] EWCA Crim 3111 . That was a striking case in which it was a necessary part of the prosecution case that the appellants had had at their disposal substantial quantities of firearms and ammunition for use in furthering serious organised crime. Further, their conspiracy to pervert the course of justice had been successful. Twenty-two years imprisonment is, to the best of our knowledge, the longest sentence ever passed for this offence. The appellant in Ahmed had been made the subject of a discretionary life sentence for a course of conduct against a man with whom she had had an affair. The course of conduct included a false allegation of rape and a plan falsely to accuse the man of a serious assault. The appellant’s life sentence was quashed but a determinate sentence of 10 years was imposed. The court said that “very serious offences of perverting the course of justice can properly attract sentences in double figures”. 37. Self-evidently the judge was not provided with these authorities. They would have rebutted the reliance on the proposition drawn from the Sentencing Council consultation guideline in relation to a prevailing level of sentencing. They would have demonstrated that very serious offences would fall outside any boundary set by a prevailing level. 38. We consider that the conspiracy to pervert the course of justice was at the upper end of seriousness for such an offence. It persisted over a period of approximately three years. The provision of FOG passports to criminals who had committed grave crimes including murder prevented their apprehension and allowed them to travel freely. Where the criminals already were abroad, the passports were delivered to them. The execution of arrest warrants was impeded. Criminal proceedings whether in this jurisdiction or in Scotland were delayed. Zietek was fully aware of the nature of the crimes committed by those he assisted. In two cases he provided further false documents from a different source than the UK Passport Office. He was closely associated with professional organised crime at the highest level. 39. Mr Nathan’s submission that the judge’s characterisation of Zietek as the organiser of the conspiracy was potentially flawed because the material revealed by the other offences admitted by Beard showed that Beard did not need Zietek to introduce him to serious criminals is not of immediate relevance to our consideration of the Solicitor General’s application. The judge made his findings on the evidence before him. Mr Nathan does not suggest that the judge erred in that respect. Even if he had, it would be an issue to be raised in an appeal against the sentence imposed. In any event, the fact that Beard had criminal contacts of his own did not alter the fact that the Scottish organised crime group members had come to him via Zietek. Beard held himself out as someone able and willing to provide FOG passports. Zietek used his services. 40. We are satisfied that the judge erred when he treated the conspiracy to pervert the course of justice as a grossly aggravating factor of the conspiracy to make false instruments. The criminality here was providing those who had committed very serious offences indeed with the ability to evade justice. The means by which they were able to do so was secondary. We again point out that the judge’s error was one into which he was led by the prosecution. However, it is an error which we must correct if it led to an unduly lenient sentence. Had the judge approached the case in the correct way, he inevitably would have imposed a sentence in excess of the maximum sentence permissible for the conspiracy to make false instruments. The conspiracy to pervert the course of justice was very serious both in its purpose and in its persistence. Zietek was the organiser of the conspiracy. That is why we quashed the sentence of 8 years’ imprisonment in respect of count 1 and substituted a sentence of 12 years’ imprisonment. 41. Had Beard fallen to be sentenced solely for his participation in the conspiracies with Zietek and others, his sentence would have been less than that imposed in relation to Zietek. Significant though his role was, he would not have obtained the FOG passports in question had Zietek not approached him. However, the other offences which he asked to be taken into consideration aggravated his position very substantially. We consider that the judge was entirely correct when he decided that Beard’s sentence after trial would have been the same as that of Zietek. The same logic applies once the sentence after trial has been increased as we have determined. Beard’s less significant role in the conspiracy to pervert the course of justice would have led to a sentence less than 12 years had that been the only criminality to be reflected in the sentence. However, his serial offending of a similar kind over a period of 10 years or more outside the conspiracy means that his sentence after trial would have been 12 years’ custody. The judge gave him a reduction of 15% for his pleas of guilty. Applying that reduction to the appropriate sentence gives the sentence of 10 years 2 months’ custody which we substituted for the sentence imposed in the Crown Court. 42. We are conscious that both Zietek and Beard are in their sixties. Neither is in the best of health. Beard was making good progress in dealing with his long standing alcoholism before he was sentenced. However, both men involved themselves albeit indirectly in professional crime of the most serious kind. Severe sentences were and are inevitable. 43. Although we granted the Solicitor General leave to refer the sentence in the case of Thompson, our conclusion was that his sentence was not unduly lenient even after the adjustment of the sentences of Zietek and Beard. His role in the conspiracies was relatively limited and it was a role which was not necessary for the success of the criminal scheme. We do not consider that his sentence should simply follow pro rata those of the principals in the scheme. Even if that were to be the proper approach, it would mean an increase from 3 years’ imprisonment to 4 ½ years’ imprisonment. That is not an obvious indication of undue leniency. Moreover, his sentence was in part dictated by the fact that he is a man of 73 who needs regular daily care and who would find any custodial term a struggle. Those matters have not changed. Conclusion 44. As announced at the hearing, we grant the Solicitor General leave to refer the sentences imposed on 16 May 2023. We quash the sentences imposed on count 1 in relation to Zietek and Beard. We substitute sentences of 12 years’ imprisonment and 10 years 2 months’ imprisonment respectively. We do not interfere with the sentence in respect of Thompson. His sentence is lenient but not unduly so.

2023_09_04-5803.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1015/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1015

74275d4037a076e1c4755d8daeb53cf9390ef4f872fb69404a137d9c0b6d9b48

[2015] EWCA Crim 1815

EWCA_Crim_1815

crown_court

Case No: 201300107 C1, 201302507 C1 & 201302510 C1 Neutral Citation Number: [2015] EWCA Crim 1815 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HIS HONOUR JUDGE BEAUMONT, The Recorder of London T20087387/7399 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/11/2015 Before : LADY JUSTICE MACUR DBE MR JUSTICE COOKE and HER HONOUR JUDGE CUTTS - - - - - - - - - - - - - - - - - - - - - Between : Gavin GRANT Damian Martin WILLIAMS Gareth Damon DOWNIE 1 st Ap

Case No: 201300107 C1, 201302507 C1 & 201302510 C1 Neutral Citation Number: [2015] EWCA Crim 1815 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HIS HONOUR JUDGE BEAUMONT, The Recorder of London T20087387/7399 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/11/2015 Before : LADY JUSTICE MACUR DBE MR JUSTICE COOKE and HER HONOUR JUDGE CUTTS - - - - - - - - - - - - - - - - - - - - - Between : Gavin GRANT Damian Martin WILLIAMS Gareth Damon DOWNIE 1 st Appellant 2 nd Appellant 3 rd Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr N Rumfitt QC (instructed by MTC & Co Solicitors ) for the 1 st Appellant Mr J Lyons (Pro Bono) for the 2 nd Appellant Mr N RumfittQC (instructed by EBR Attridge LLP ) for the 3 rd Appellant Mr M Heywood QC and Ms R Barnes (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 27 October 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Macur DBE : 1. On 26 July 2010 the appellants, Grant and Downie, were convicted of murder and the appellant Williams of conspiracy to murder following retrial. They were each sentenced to imprisonment for life, with 25 years specified as the minimum term under s269 (2) Criminal Justice Act 2003 . They all appeal against conviction by leave of the Full Court on the basis of non-disclosure of material potentially going to the credibility of the main prosecution witness, known as Susan Norwich. 2. On 23 May 2004, Leon Labastide was shot dead outside his home in North West London in what was believed to be a gang related attack. Men were seen fleeing the scene and “powerful motorcycles were heard.” Grant was first arrested on 14 October 2004. He denied involvement in the murder. 3. On 22 May 2004, an aggravated burglary had taken place at the home address of an associate of the accused in which armed men forced entry into the premises. Three young women jumped from a first floor window. Two of the women sustained injuries and the third, a 16 year old girl who became known by the pseudonym “Susan Norwich”, was to become the main prosecution witness although she did not co-operate with police at the time. 4. No charges were brought at the time of Labastide’s murder and gang related attacks and killings continued in the area, including the murder of a man called Jahmal Moore. The appellant Grant was tried and subsequently acquitted of involvement in that offence. One of his co-accused who had been convicted then offered himself as an informant and made a statement implicating Grant. He did so to secure a reduced sentence. However, the prosecution application to quash Grant’s acquittal was rejected. The then Vice President, Lord Justice Hughes, sitting with Penry-Davey and Stadlen JJ on 9 June 2009 considered the proffered evidence from M, the convicted co-accused, to be patently unreliable describing him as “a fluent and circumstantial liar who says whatever suits him and is adept at tailoring it to the known facts.” 5. However, in 2008 the police had already been led to Susan Norwich by M, also known as “Spider”, who alleged that he had shared a cell with the previous partner of a material witness to the Labastide murder. Police identified, located and travelled to her home to speak to Susan Norwich without warning. She gave an account of being present during a conversation in which Grant and Downie arranged to kill the victim, at Williams’ instigation, because he was believed to be responsible for the aggravated burglary as indicated above, and being present when Grant and Downie returned after the killing, but she refused to give or sign a statement. Eventually in September 2008 a draft witness statement was obtained from her and she was interviewed on tape as a significant witness. DS Wright was allocated to her as a liaison officer. 6. The appellants were arrested and charged in October 2008. Grant denied the offences and declined to answer questions in subsequent interviews; Williams made no comment and Downie gave a prepared statement denying the offence and refused to answer further questions. 7. Susan Norwich’s level of co-operation with the police fluctuated constantly. She expressed fear for the safety of herself and her child but consistently declined witness protection. She told DS Wright that Williams’ mother advised her to retract her statement. Susan Norwich signed a witness statement in January 2009. It became clear that her real identity was known to the appellants. On 21 January 2009 she sent a number of abusive text messages to DS Wright since she believed that her identity had been disclosed by the Crown Prosecution Service. However, a few days later she signed her witness statement and attended an identification parade and identified the three appellants on 27 January 2009. 8. In April 2009 she signed a retraction statement but gave evidence as a prosecution witness in the first criminal trial held in autumn 2009. There is no doubt that she was a crucial prosecution witness. There was and is no sufficient direct evidence without her. 9. The defence case ran at trial was that Susan Norwich had fabricated the account. She had close links with gang members and was in a relationship with a man called Cephanis who the defence believed had been involved in the murder of Jahmal Moore. She had concealed this relationship from the police. When giving evidence she was aggressive and prone to outbursts. The issue for the jury was whether the evidence of Susan Norwich was credible and reliable. The jury were unable to reach verdicts in relation to the Labastide case on which the three appellants were subsequently retried. 10. On 10 March 2010 Susan Norwich was arrested for serious drug offences following a search of her home address during which a significant amount of heroin had been recovered. She was charged. DS Wright was informed the next day. On 6 June 2010 she was further arrested for breach of bail conditions, possession of cannabis and assaulting a constable in the execution of his duty. 11. The defence were informed of these arrests and provided with a log of police contact with Ms Norwich from first dealings with her until the start of the retrial. Prior to her cross-examination, the appellants were made aware that DS Wright had attended Susan Norwich’s plea and case management hearing in the Crown Court at Bristol on 2 July 2010 and that the case had been adjourned for reasons canvassed by the parties with the judge in chambers, to which DS Wright had not been privy. Susan Norwich was cross examined amongst other things about her own arrests, as well as alleged inconsistencies in her evidence between the first and second trials in 2009 and 2010 and her blowing “hot and cold” about giving evidence. She was not cross-examined as to whether she had at any time been offered any inducements or anticipated receiving any assistance in relation to the drugs charges she was facing in Bristol in exchange for her giving evidence in the 2010 trial. 12. On 23 July 2010 the appellants were convicted as indicated above by a majority. No appeal arises from the summing up or trial process. They were sentenced on 26 July 2010. There is no appeal against sentence in the event that these convictions are upheld. 13. On 29 July 2010, Susan Norwich changed her plea to guilty. She received a suspended sentence of imprisonment, which was entirely unusual in the circumstances of the case she faced. Unsurprisingly, it was suspected that she entered into a deal with the police involved in the prosecution of the appellants. What is clear is that she was provided with “a text” as a direct result of the assistance she had provided in giving evidence in the appellants’ trial. Further disclosure was made by the Prosecution, including Susan Norwich’s solicitor’s file – she having waived privilege, and police message “M 719” which referred to a “text”. Prosecuting and defence counsel in Susan Norwich’s own case have provided their recollection of events during the drug offences proceedings. The appellants now contend that there is clear evidence that two police officers acted in bad faith in withholding information and that taking all the other circumstances of the trial into account there is a real possibility that the jury would have arrived at a different verdict if the necessary disclosure had been made. The full court gave permission to appeal on the renewed application of leading counsel for the appellants Grant and Williams, and junior counsel for the appellant Downie. 14. Witness statements have been recently prepared by Peter Hine, Acting Detective Inspector responsible for dealing with “Trident” appeal cases, in relation to the enquiries made “both covertly and overtly” with regards to the events of police contact with Susan Norwich at the time of her appearance as a witness in the re-trial and as defendant in the drugs case in Bristol. They have not been subject to cross examination, nor have the officers who are accused of malpractice. We consider that the appellants leading counsel, Mr Rumfitt QC’s, stance on this is entirely realistic; he has no wish to delay the appeal. We have had regard to the information they contain but have drawn our own conclusions on the facts. 15. The respondents acknowledge a failure to disclose relevant documentation which did meet the test for disclosure but argue this did not render the conviction unsafe on the basis that there was no real possibility that the jury would have arrived at a different verdict had the message referring to a text and the circumstances in which it had been drafted been disclosed. The papers in Norwich’s case were disclosed to the defence as unused material prior to the retrial. The defence cross examined her on the facts arising from this material which in turn enabled the jury to consider the credibility of the stance she was maintaining in the face of those proceedings. During cross-examination she was warned by the judge regarding self-incrimination and predominantly refused to answer specific questions relating to the facts underlying her prosecution. It was open to the defence to cross-examine Norwich on whether (i) she had been offered any inducements in respect of those proceedings to give evidence against the appellants in the retrial or (ii) she expected any assistance given that she had already been a prosecution witness in the original trial and would have been entitled to assistance on that basis. The defence did not do so. The receipt of a “text” was something to which Norwich was entitled and this would have been known to the defence. The police did not give evidence on her behalf during the appellants’ case. 16. The recollections of the advocates in Susan Norwich’s own criminal case are obviously provided in good faith. We proceed on the basis that her defence counsel correctly assessed the case against her as strong and awaited his chance to advise her on the likely outcome of a trial. He may have given an indication of this to the prosecution advocate at the beginning of July, and prior to his application for a ‘Goodyear indication’ to account for the endorsement on the prosecution file on 2 July 2010, three days prior to the start of the appellants’ retrial on the 5 th . It is apparent that he did expect an officer in these appellants’ criminal trial to attend at the hearing of Susan Norwich’s case. 17. We have come to the clear view that the documentation now made available entitles Mr Rumfitt QC correctly to describe the conduct of two police officers, ex DI Horsley and DS Wright in terms of ‘impropriety’. The nature of the contact between DS Wright and those who represented Susan Norwich in early July quite clearly contemplated the provision of a text regardless that he explained in his note prepared in the course of the post trial investigations that his use of the word “text” in the internal police message dated 2 July 2010 (M719) was shorthand for a letter to be given to her legal representatives in Bristol describing her assistance and to which she was entitled. The letter subsequently produced for the purpose of her sentencing dated 28 July 2010 is demonstrably inaccurate and misleading. The text was unauthorised. DI Horsley attended and gave evidence before the sentencing judge in chambers, contrary to the practice enunciated in R v X [1999] 2 Cr. App. R 125. Fortunately, in order that the appellants should be under no illusion, we have a transcript of the proceedings. There is some rectification of the picture of Susan Norwich’s willing and unwavering assistance in the trial of the appellants but it is not a candid account. For the avoidance of doubt, we note that the contact log is not a complete record of the contacts between police and Susan Norwich, but are satisfied that material contacts were, at least in the main, noted. 18. Mr Rumfitt QC recognises that this impropriety in itself is not sufficient to overturn the convictions. He exonerates trial prosecution counsel from any professional misconduct and is certain that they too were unaware of events. This, he argues, highlights the point. The police’s concealment of the matter from prosecution counsel was a tacit acknowledgement of the devastating effect of the information on the defence cross examination of Susan Norwich. 19. Mr Heywood QC, who did not appear in the trial below but appears on behalf of the respondent in the appeal, assisted by trial prosecution junior counsel, confirms that trial counsel were not aware of the information that has subsequently come to light. If we correctly perceived that he suggested that the prosecution duty of disclosure was rendered redundant by the absence of information available to counsel, or the policing authority in London or else that different rules apply in cases in which it is difficult for the prosecution to obtain the assistance of witnesses to gang related offences we firmly squash the notion. We accept unequivocally Mr Rumfitt QC’s argument that there is a corporate knowledge implied by the possession of the relevant information that falls to be disclosed by any arm of the prosecution. We note that whilst Mr Heywood QC attempts to “airbrush” the behaviour of the officers, he nevertheless concedes that the misconduct described above in terms of the text may well have led to disciplinary procedure if DI Horsley remained in office. 20. The issue for us, therefore, is whether the disclosure of this information prior to the trial commencing, or as events evolved, prior to the cross examination of Susan Norwich would have likely made a difference to the verdict of the jury correctly directed. The impact that it would have had upon the conduct of the trial by those who represented the appellants and the additional potential for showmanship, in albeit proper, cross examination is, with respect, otherwise irrelevant. 21. It was submitted that, had the defence known that counsel for Susan Norwich had it in mind before she gave evidence in the murder trial to seek a Goodyear direction thereafter with a view to a plea and sentencing help from the police for the drug offending by way of a text, it would have sought and obtained an adjournment of the murder trial until the drugs matter had been resolved. We consider that to be an unrealistic submission. On a murder retrial of this kind, there would have been no such possibility of an adjournment and the reality is that the defence, with such disclosure as had properly been given, would then have had some pieces of paper and material to use in cross-examination on the point of which they could not already have failed to be aware – namely that, whether Susan Norwich pleaded or not, she would be entitled to some credit against sentence for any assistance given to the police. 22. Mr Rumfitt QC argues that a different verdict was a real possibility since he and other defence counsel would have had available to them the reason why Susan Norwich was “prepared to put herself through the trial process again”. He concedes that her time in the witness box in the first trial would have been difficult in view of the ammunition available to be deployed against her. That is, she was questioned as to the veracity of her evidence against the appellants on the basis that she sought to protect the identity of the murderer with whom she had a child and thereby sought to protect him. With refreshing candour, counsel admits that the line of cross examination failed spectacularly in the retrial when DNA results established conclusively that he was not the father of Susan Norwich’s son; whatismore, the absence from the retrial of the patently unreliable prosecution witness, M (“Spider”) said to have been privy to confessions by the appellants, removed any further mileage from attempting to demonstrate her association with rival gang members. 23. At the time of the retrial Susan Norwich was a witness in a precarious position as mother to two young children liable to be incarcerated. Whilst he asked her questions about the impact of her arrest for drug offences upon the welfare of those children, Mr Rumfitt QC said he did so to thwart any attempt that may be made to seek the sympathy of the jury by reference to the danger to her children she had created in giving evidence against the appellants. He argues that in light of her previously displayed antagonism towards the police there was reasonably no thought in the minds of the three experienced criminal leading counsel for the appellants that she would have ‘struck a deal’ with the police and the prospect of uninformed cross examination on such a point was a risky option. Yet they could not fail to be aware that any assistance she had already given to the prosecution in the first trial and any further assistance in the retrial would inevitably lead to a request for a text on any later sentencing for the drug offences, whether she pleaded guilty or not. It was open to the defence to cross-examine on the basis of expectation of benefit in the drugs trial by virtue of giving evidence in the murder retrial but the force of such cross-examination would, as must have been realised, if attention had been directed to the point, have been diminished because she had already given evidence in the first trial, long before the drugs offending in similar vein to that which she gave at the retrial. 24. We agree that this can properly be categorised as a ‘one witness’ case with scarce corroborative detail provided by independent witnesses. We have no doubt that the defence would have utilised the non disclosed material to dramatic effect; probably more so in relation to the challenge to the particular police officers’ evidence than to that of Susan Norwich, having regard to the transcripts of her evidence in both trials and her undoubted spirited rejoinder to matters raised in cross examination of her in relation to her credibility. We recognise the force of the arguments made on behalf of the appellants and have little doubt that, but for the undisputed chronology relating to Susan Norwich’s position as witness for the prosecution first and defendant in her own right later and the fact of the nature of the evidence she gave in the first trial, we would regard these convictions as unsafe. 25. However, a careful appraisal of the relevant timeline in relation to her providing information and evidence to the police and a reading of the transcripts of her evidence during both trials convince us that these convictions are safe. That is, she first ‘engaged’ as a potential witness for the prosecution in 2008 at a time when it could not be suggested that there was a realistic contemplation that she would trade false evidence for the prospect of her own criminal conduct being overlooked; her ‘significant witness interview’ was taped in September 2008, she signed a witness statement in January 2009 and gave evidence in October 2009; between 2008 and 2009 she was subject to a degree of witness intimidation and on occasions showed strong antipathy towards the police, on one occasion signing a retraction statement. Her arrest for possession with intent to supply Class A drugs was made on 10 March 2010. The fact of her arrest and intended prosecution was known to the appellants’ counsel at re-trial. 26. There was a transcript of her evidence from the first trial which was patently used before the jury in attempts to undermine her reliability. Notably, she had been cross examined in the first trial, as she was reminded in the second, in relation to her alleged willingness to give false evidence to escape the prospect of her own prosecution for perverting the course of justice. She was challenged entirely properly but robustly on matters going to her credibility, not least the difference in her accounts, but showed remarkable resilience in the face of attack. Significantly, in our view in the light of the context of this appeal, her evidence in the retrial contrasts to some degree with that in the first in so far as it displays a greater vagueness about matters of detail. She cannot be demonstrated to have ‘firmed up’ her factual evidence, whether with an inducement of the text or otherwise. 27. The misbehaviour of the police officers may well have created a distraction but we are not satisfied in all the circumstances of this case that a conscientious jury properly directed would have been left in doubt as to Susan Norwich’s credibility by explicit reference to the “text” or the circumstances existing when she gave evidence and the possibility of police assistance in relation to a sentence for her drugs offending. The broad consistency of her evidence at the first trial and the retrial remained entirely compelling. Consequently, these appeals against conviction are dismissed.

2015_11_20-3679.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1815/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1815

dabd148743940727b16029889532a304320cc121a62bcf4f11de52f70b2dbedb

[2014] EWCA Crim 1310

EWCA_Crim_1310

crown_court

This judgment is withdrawn until any possible criminal proceedings are completed - the judgment will be re-published when proceedings are complete. 02/07/2014

2014_07_02-3438.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1310/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1310

bf28f80bfcd335165bb02d4c2660b11b1bab827db9bb5980020de378e5a0def0

[2008] EWCA Crim 2746

EWCA_Crim_2746

crown_court

No: 200704293/D3-200704384/D4-200704568/D4 Neutral Citation Number: [2008] EWCA Crim 2746 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 31st October 2008 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE FOSKETT HIS HONOUR JUDGE MORRIS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v CUONG PHU QUACH SON GIANG BUI HA THI NGUYEN - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave I

No: 200704293/D3-200704384/D4-200704568/D4 Neutral Citation Number: [2008] EWCA Crim 2746 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 31st October 2008 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE FOSKETT HIS HONOUR JUDGE MORRIS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v CUONG PHU QUACH SON GIANG BUI HA THI NGUYEN - - - - - - - - - - - - - - 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 Chamberlain appeared on behalf of the Appellant Quach Miss S Loke appeared on behalf of the Appellant Nguyen Mr T Badenoch appeared on behalf of the Appellant Bui Mr P Asteris appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE HALLETT: On 18th and 19th July 2007 at the Southampton Crown Court before His Honour Longbotham the appellant, Nguyen, was convicted of conspiring to produce a quantity of cannabis (count 1); converting criminal property (count 2); two counts of converting criminal property (counts 3 and 4) and two counts of obtaining a money transfer by deception (counts 5 and 7). The appellants, Bui and Quach, were also convicted of count 1. Bui was acquitted on count 2, converting criminal property; count 6, obtaining a money transfer and count 8 abstracting electricity. A man called Do should have been tried with the three but he absconded. 2. On 19th July 2007 they were sentenced as follows. Nyuyen on the count of conspiring to produce cannabis, 10 years' imprisonment, on the three counts of converting criminal property, 2 years' imprisonment, each ordered to run concurrently and 2 years’ imprisonment ordered to run concurrently on the two counts of obtaining money transfers, making a total sentence of 10 years. Bui was sentenced to 6 years' imprisonment, Quach was sentenced to 5 years' imprisonment and recommended for deportation. It seems that he was not long in custody in this country before he was sent back to Vietnam. 3. Nguyen has abandoned her application for leave to appeal against conviction, which was referred to us. Having reviewed the strength of the evidence against her, in our view that was a sensible decision. All three of the appellants have leave to appeal against sentence. 4. The background is as follows. Nguyen was the owner of a number of houses including 208 Leigh Road and 71 Westwood Road, Salisbury. She also owned two nail bars, which may or may not have been a front for her cannabis operation. Bui worked for her as a nail technician. He was the owner of a house at 10 Eastleigh Road, Fair Oak. Eastleigh Road was kept under observation by the Hampshire Constabulary. On 17th October 2005 Mr Range, an employee of Southern Electric, went to Eastleigh Road to change the meter. A man answered the door and would not let him in. He returned the following day and met Nguyen. He discovered the meterr had been tampered with and substantial quantities of electricity consumed un-metered to the value of approximately £1300. 5. On the same day police executed a search warrant. Quach was found in a bedroom and when police sought to detain him, he struggled and had to be handcuffed. Nguyen was found in the same room, partially concealed behind a window blind. One officer said when he was outside he saw a woman of oriental appearance trying to get out of an upstairs window. She was taken back inside and when her handbag was searched inside was found a water bill for the property. Downstairs, Do was also detained. Rooms in the house had been fitted with lighting and hydroponics. There were vents in the loft space and the doors and windows were covered in plastic sheeting. Two notes with Vietnamese handwriting on them were found in the loft. When they were translated they were found to contain instructions on how to grow cannabis plants. The Crown alleged the handwriting was Nguyen's. 6. Cannabis plants at different stages of growth were found in the three rooms in the house. They contained 407 plants, with a wholesale value of between about £31,500 to £46,000. The equipment itself was worth nearly £6,000. DNA evidence linked Bui and Do to the house and Quach to the van parked outside. The van had been rented by Nguyen the previous day in her sister's name. 7. By the time the police found Nguyen's other properties, two of them had been placed on the market for sale. Police noted that rooms had been re carpeted, there were vents in the loft, similar to those in Eastleigh Road and of the kind required for cannabis production. 8. Cannabis leaves were discovered at 71 Westwood Road and DNA linked Do to that property also. Again, there were holes in the roof and other equipment almost identical to that found in the loft space in Eastleigh Road. In addition, a neighbour described how the curtains were never opened, people came and went during the early hours but never in the daytime and never at weekends. She heard banging and saw that the occupants had built a ramp to the garage and there were vans parked outside on a regular basis. 9. A police officer gave evidence about money laundering techniques which include, "smurfing", where numerous small amounts are paid into different accounts and cross firing, where there is an unnecessary movement of funds between accounts. He had been through the bank accounts of Nguyen and Bui and he gave evidence that both smurfing and cross firing had occurred here. He could detect no legitimate income. He also noted that one of Nguyen's properties, 22 Churchfield Road, had been sold at a loss. It was his opinion that money laundering had been taking place and it must have been money laundering of thousands of pounds. 10. A Mr Abdul, a mortgage broker, gave evidence that Bui and another oriental man came to see him about a mortgage for Eastleigh Road. When he explained the procedure to Bui, he seemed to understand. He also assisted Nguyen in respect of her mortgage applications. For the purposes of buying 208 Leigh Road, she claimed that her takings from the nail bars were £79,000 a year. However, when she made a mortgage application for 71 Westwood Road, her income was £42,000 in 2003 and £45,000 in 2004. As far as Eastleigh Road was concerned, Bui's basic gross income was said to be £39,000 - rather a large sum for a nail technician. Pay slips supporting the mortgage application were alleged to be false. 11. Martin Rice, the previous owner of Eastleigh Road gave evidence. He saw Nguyen and another woman come to visit the house with a view to purchase. When she did, Nguyen asked her about the electricity supply and voltage. She also returned for a second viewing with Bui. On the third viewing Mr Rice thought all three were present. When there were problems with completion, he arranged to meet Nguyen and Bui. 12. The prosecution alleged that Nguyen and Bui dishonestly obtained their mortgages to purchase the properties in which to grow cannabis commercially. Once the drugs were harvested, Nguyen and Quach were to move it from Eastleigh Road, using the van that Nguyen had hired. Mr Asteris, for the Crown, argued the cigarette butts, showed, firstly, that Bui was present when the cannabis was planted, and secondly, that Quach was going to help remove it. He also submitted the evidence was overwhelming that Westwood Road and Leigh Road were both additional cannabis factories. 13. Nguyen gave evidence at the trial in which she insisted she was not involved in cannabis cultivation and all her financial and property dealings were above board. When something dishonest was pointed out to her, she tried to blame others, claiming she had relied upon them. 14. Quach denied involvement in any conspiracy and claimed that Nguyen was trying to put all the blame on him. Bui gave evidence, during the course of which he did his best to distance himself from the drugs operation. He did not expressly blame his co-accused but it was implicit in some of things he said. He claimed, for example, it was Nguyen who assisted him on transactions like opening a bank account and buying Eastleigh Road. 15. As far as the background of the three is concerned, Nguyen is now 39. She has been convicted three times for theft and once for forgery. Bui is now 27. He was of previous good character, it was said, save that when he decided to drive a car he did not seem to bother with having a licence or insurance. 1. Quach is now 40. He was of good character albeit we note that he was an illegal immigrant and, as we have indicated, he has already been deported. 16. The trial judge observed in his sentencing remarks that each had been convicted of a serious conspiracy. He described Nguyen as having not been honest at trial (something of an understatement) and he also referred to her previous convictions for dishonesty. He referred to the large sums of money that had gone through her bank accounts and he also noted that Bui had described her as "Miss Boss", which, in the judge's opinion, was an accurate description. However, he also observed that Bui seemed to be fond of expensive items and lived an extravagant lifestyle: for example he lost a BMW motorcar in a card game. The judge also noted the extent of Bui's involvement. He was the owner of Eastleigh Road, he found a tenant for it and he was significantly involved. The judge found that Nguyen may be his boss, but his role was more than that of simply doing as he was told. The judge also found that Quach was not just a “gardener” for the drugs. His involvement was to ensure the removal of substantial quantities of the harvested cannabis. 17. The judge considered the value of the drugs actually found. The main crop of drugs when harvested would have amounted to about 6.66 kilograms of cannabis, made up of 3.32 kilograms of skunk and 3.33 kilograms of herbal cannabis. The potential wholesale value was between £10,000 and £15,000. In rooms F and G (as they were described) police found a further 7.17 kilograms of skunk and 7.13 of herbal cannabis worth roughly £26,000. 18. The judge not surprisingly described the operation as "substantial" and "very profitable". He could not, of course, estimate the quantities of drugs that had been produced in the other properties. He accepted that there may have been what he described as "shadowy figures" higher up the chain of production but said there was no evidence of any pressure being placed on any of the defendants before him. 19. He also specifically addressed the issue of whether or not deterrent sentences were required. There was evidence before him of a substantial increase in the number of premises being raided and found to contain commercial cannabis factories. The figure grew from six in 2005 to 36 in 2006, and in the first half of 2007 alone, 29 such premises were discovered. The offenders were usually of Vietnamese origin. The judge bore in mind there is a closely linked and significant Vietnamese community in the area of Southampton. He found there was compelling evidence of a prevalent problem and a deterrent sentence was necessary. 20. Miss Loke, on behalf of Nguyen, argued that the appropriate sentence for the offences of which she was convicted, after trial, should have been in the region 5 to 6 years. She referred the court to a number of authorities including R v Liljerous & Alderson [2004] 1 Cr App R(S) 81. She argued, that the level of sentences suggested therein for offences of this kind already takes account of an element of deterrence. She argued that even if a further element of deterrence was required in the present case, an additional 4 to 5 years was manifestly excessive. Further she argued the sentence of 10 years took no account of the appellant's personal mitigation: Nguyen is a single mother who until her arrest was caring for a 13-year-old daughter. She also reminded the court that the judge seems to have accepted that Nguyen was not at the very top of the organisation behind this conspiracy. 21. Since the hearing below, the Vice-President Latham LJ, has delivered the judgment of this Court in the R v Xu & Ors [2007] EWCA Crim 329 . In Xu, the court heard seven appeals together in order to consider the appropriate level of sentencing in cases of large scale cultivation and production of cannabis. The Vice-President indicated that the court was not providing guidelines as such, but the court was prepared to indicate the bracket "within which some consistency of sentencing can be achieved." Latham LJ said this at paragraph 6: "We consider that for those involved at the lowest level, the starting point should be 3 years before taking into account any plea of guilty and personal mitigation. This reflects the view of this court in KuangVan Nguyen [2007] EWCA Crim 9 . For those who set up and control individual operations, the organisers, the starting point should be 6 – 7 years depending upon the quantity of cannabis involved, again before taking into account a plea of guilty and personal mitigation: see Jupp [2002] Cr. App. R. (S) 8 and Liljerous and Alderson [2004] 2Cr App (R)(S) 81 at page 486. The starting point for managers will be somewhere between 3 and 7 years depending on the level of their involvement and the value of the cannabis being produced. Severer sentences may be appropriate for those who control a larger number or network of such operations." 22. On that basis Miss Loke argued that the 10 years' imprisonment was substantially higher than the range suggested for even controllers and organisers of a large network of cultivations. 23. As far as Bui is concerned Mr Badenoch argued that the sentence of 6 years was excessive. He submitted that Bui's role was at most a “manager” rather than organiser, and he was a manager acting on the orders of his boss, namely Nguyen. Mr Badenoch rightly reminded the court of the counts of which Bui was acquitted. This is Bui's first time in custody and Mr Badenoch argued he has substantial personal mitigation for example his claim for asylum. He claims to have fled Vietnam for fear of persecution. Further, his father died while he was in custody; he has lost contact with his mother and all his natural family and a warrant for his arrest has been issued against him in Vietnam because he practised Buddhism. We would comment in passing, it is clear to us from the way in which this trial was conducted that Mr Bui has not been exactly truthful over the years. Nevertheless Mr Badenoch argued that given the guidance provided in Xu and in other decisions put before us a sentence of 6 years was simply too high. 24. As far as Quach is concerned Mr Chamberlain, in admirably succinct submissions, argued that the sentence of 5 years was excessive, given his role in the conspiracy. The evidence indicated that he was involved simply on one day, the day he was arrested. 25. In his written submissions, Mr Chamberlain referred to the appellant's “good character”. We note, however, he was in the UK illegally. The highest it can be put, therefore, is that before he committed the present offences, he had no previous convictions in this country. Mr Chamberlain also drew support from the decision in Xu for his proposition that if Quach stood to be sentenced as a low-level worker, the starting point should have been 3 years. 26. Looking at the conspiracy as a whole, in our judgment, this was a major operation. It clearly involved more than one centre of production, considerable quantities of drugs and considerable profits. The judge was right to emphasise that the factories produced, not just herbal cannabis but skunk which is a far more pernicious drug. 27. Applying the guidance in Xu , Miss Nguyen stood to be sentenced as an organiser and one who controlled more than one operation. Three separate properties were identified as possible cannabis factories and she was substantially involved in all of them. She bought two of the properties in her own name and went to view Eastleigh Road. She provided £8,500 deposit for its purchase. She also had a bill relating to Eastleigh Road in her possession when arrested. 28. The other two properties may not have contained cannabis by the time they were searched but they bore all the hallmarks of having been at one stage cannabis factories. Mr Asteris also invited out attention to the fact that the properties had all been bought with dishonestly obtained mortgages (which formed the substance of the other counts on the indictment). 29. But, if we are to be true to the jury's verdicts, stood to be sentenced as a manager. He owned Eastleigh Road, where the drugs and his co-accused were found. He was plainly heavily involved in whatever was going on there and therefore, was not merely a low level worker. His was an important role and it was a role in a conspiracy which had a much larger ambit. 30. Quach lived with the only proven organiser before the court, Nguyen, at her main home. He had no known means of income. He was plainly more than a mere gardener. He travelled with Nguyen from London to Eastleigh Road in the rented van, and he was going to be one of those responsible for transporting the fully matured plants from the house to the depot from which they would be supplied to the public. 31. On the question of deterrence, the judge was, in our view, entitled to find this kind of offence was particularly prevalent in the Southampton area amongst the Vietnamese community. Thus, he was entitled to bear that in mind when fixing the appropriate levels of sentence. 32. However, given the roles of the appellants we are persuaded that the sentences were excessive. Bearing in mind the guidance in Xu not available to the judge below, in our judgment, a sentence of 8 years for Nguyen would have been appropriate. We shall quash the sentence of 10 years' imprisonment on count 1 and substitute for it a sentence of 8 years. As far as Bui is concerned, we shall quash the sentence of 6 years and substitute for it a sentence of 5 years. Whether our decision makes any different to Quach we are not sure, nevertheless, we shall quash the sentence of 5 years on him and substitute for it a sentence of 4 years. To that extent and that extent alone the appeals succeed.

2008_10_31-1701.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2746/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2746

5b98bf7435c28949035c62076120b001c4e3e73b89c732b7e3950d8d57307360

[2005] EWCA Crim 1284

EWCA_Crim_1284

crown_court

No: 200404908/B3 Neutral Citation Number: [2005] EWCA Crim 1284 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 3rd May 2005 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE DAVID STEEL MRS JUSTICE GLOSTER - - - - - - - R E G I N A -v- GLENN MICHAEL SIMONS - - - - - - - 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

No: 200404908/B3 Neutral Citation Number: [2005] EWCA Crim 1284 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 3rd May 2005 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE DAVID STEEL MRS JUSTICE GLOSTER - - - - - - - R E G I N A -v- GLENN MICHAEL SIMONS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M BENNETT appeared on behalf of the APPELLANT MR VAN DER ZWART appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE DAVID STEEL: The appellant is now aged 37. Prior to the matter which is the subject of this appeal he had no convictions. On 22nd July 2004, in the Crown Court at Hull, before His Honour Judge Jack, the appellant was convicted of four counts of making an indecent photograph of a child and one count of possessing indecent photographs of children. He was sentenced to pay a fine of £300 on each count, the fine to be paid within 2 months and also ordered to pay £1,339 towards the costs of the prosecution. Thus, the total sentence was £1500 or 45 days' imprisonment in default and payment of costs. He appeals against conviction by leave of the Single Judge. The grounds on which the Single Judge did not give leave are not pursued before us. 2. The background is that in 1999 the appellant's personal details were found on a database of an American portal or a gateway called "Landslide" that had been closed down by the American authorities. The portal had been used to access various websites on the Internet. The database was forwarded to the police in this country. The appellant's details had been used to access five web sites within that site on different occasions between April 1999 and August 1999. The details used to access these sites were the appellant's name, his correct address, including postcode, his correct email address, with the user identification and correct credit card number and passwords. 3. Two of the sites that were accessed contained indecent images of children. The sites were called "Children for God" and "Children Forced to Porn". 4. As a result of the information received from the United States, on 3rd December 2002 the police searched the home address of the appellant. They found two computers, one old and one current. The hard drive of the new computer contained 15 indecent images of children in the form of thumb nails, that is to say small images that had not been enlarged on the screen or the hard drive. The images were located in free space indicating they may have been deleted and emptied from a recycled bin. The images were classified as level 1 and were of girls aged under 16 and as young as 10 posing naked or part naked. The computer containing the child images had been purchased on 29th May 2001, that is to say well after the "Landslide" site had been closed down. 5. Prior to the purchase by the appellant, it was accepted that the hard drive was new and clean and had not been used. When a "Landslide" site was accessed an email confirming access and the user identification was received. However, no emails from "Landslide" were found on this current computer. 6. A notebook was found at the appellant's address which contained two user names that matched the entries found on the extract for "Landslide" database that was sent to the police. The user names were GS 221 and G 720 and they were associated the password "Griff". These were the user's names for "Children of God" and "Children Forced to Porn" web sites. It was common ground that the entries in the notebook were in the appellant's handwriting. As regards the old computer which had been in use in 1999, no images of child pornography were found nor emails from "Landslide". 7. The police also seized the applicant's collection of adult pornographic videos and DVDs. Although the videos and DVDs showed disclaimers that everyone depicted was over 18, the titles suggested that people involved were or at least looked young. The appellant's credit card was seized and showed two payments to "Landslide" in April 1999 and May 1999. 8. The prosecution case was that the appellant knowingly made and possessed the indecent photographs of these children. Although there was no evidence that any of the 15 images found on the appellant's computer came from the "Landslide" site, the prosecution asked the jury to consider the "Landslide" evidence to show that the appellant had accessed the site and had a general interest in child pornography, despite his denials in interview. The precise purpose for which the prosecution deployed this evidence is a matter to which we will revert. 9. The appellant's DVD collection was adduced also because it suggested an interest in pornography involving people that appeared to be young, and as a counter to the suggestion that he had obtained the images which were contained on the hard drive accidentally. 10. It is the "Landslide" evidence and the DVD material which are at the heart of this appeal. 11. The defence case was that the images could have appeared on the hard drive because they had randomly "popped up" on the appellant's computer, or received as unsolicited or spam emails that he had unwittingly opened. 12. As regards the latter, it was, if they had been contained in such emails, possible, so the defence ran, that the images never appeared on the screen, or if they did, they were immediately deleted by the appellant, as soon as he realised they contained child pornography. Another possibility canvassed by the defence was that the images were accessed by an internal program called a Trojan, that controls the computer remotely. As such he did not knowingly possess or make the images. 13. As far as the "Landslide" material was concerned, the defence case was that someone else had accessed the child pornography sites using the appellant's stolen identity, including his usual password. As regards the DVD collection it was simply asserted that the material was legal. 14. The evidence adduced by the prosecution primarily centred on two police witnesses. Firstly, Police Constable Girling who was the case officer and gave details of the investigation. And Detective Inspector Pugh, who gave supplementary evidence on his examination of two computers. In particular, he explained that he had never come across a Trojan putting child pornography onto a computer, nor unsolicited emails contain child pornography. 15. As regards the appellant's interview, it will be necessary to look into some of the details in due course, suffice for the moment to say that the appellant gave the same overall account as he did in evidence, but answered no comment to some questions. He said that he checked his credit card statements. He failed to mention the unsolicited emails may have contained child pornography. However, the applicant said that he looked at child pornography from a site out of curiosity and had seen pictures of children on his computer screen, although he had never distributed them. 16. The appellant gave evidence. He denied that he was the person who accessed the child pornography sites on "Landslide". At the time the "Landslide" entries appeared on his credit card statement, he had five or six credit cards and he was on holiday during the middle of May 1999 and would not have subscribed to the website just before going away. He did not take out a subscription and had never queried entries on his credit. He had only checked the credit card statement to make sure it balanced with his banking figures. He accepted that the notebook that the police found belonged to him and mostly contained his writing. He had merely recorded details of adult pornography sites that he had viewed. 17. The appellant accepted that he wrote the two pass words in the note book that the police found. He believed he had copied them from emails received on his computer, reconfirming that the "Landslide" website had been accessed. He would have made the entries after his holidays abroad in May. He could not explain why he would write down the passwords if he had not been the person to access the site. He indeed accepted that "Griff" was a password that he had used on many occasions. 18. He denied admitting the offences in interview, saying that his comments about looking at images from "Landslide" had been misinterpreted. He answered no comment to some questions because he was told by his legal representative not to answer questions specifically about child pornography. In cross-examination he denied having lied to the police. He said he had a healthy interest in sex with preference to young adults. Someone else must have used his details to access "Landslide". When in his interview he said he had looked at images out of curiosity, he was not referring to child pornography. He did not receive sexual gratification from children. 19. In accord with the leave given by the Single Judge, Mr Bennett takes two points primarily directed at the "Landslide" evidence. First, that the material was inadmissible as solely going to an issue of propensity. Alternatively, if he was wrong about that and the material was admissible, the jury were given no adequate direction as to how the material could be used. We start with his submissions with regard to admissibility, and they can be summarised as follows. First, it was not part of the prosecution case that the level 1 images on the new computer had come from a "Landslide" site. Two, the evidence relating to "Landslide" visits was used solely to provide evidence that the appellant had strong tendencies to paedophilia. Three, such was not permissible, since at the time of the trial, evidence of propensity was not admissible, save with certain exceptions which did not apply. 20. In that respect, he draws the Court's attention to two relatively recent decisions of this Court, which themselves are based upon the well-established underlying principle contained in the decision of the Privy Council in Makin v The Attorney Journey for New South Wales [1894] AC 57 . Lord Herschell said this, at page 65: "It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his conduct or character to have committed the offence for which he is being tried.... the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused." The matter was considered in some detail in a decision of this Court in R v Wright (1990) 90 Cr App R 325 , in a reserved judgment given by Mustill J, as he then was. The case concerned a headmaster who was charged with gross indecency. The prosecution introduce incriminating articles in the form of a book and video. The booklet, in particular, suggested homosexual leanings. The video showed homosexual activity between adults. At page 328, Mustill LJ, with some prescience to the recent enactment of the Criminal Justice Act 2003 , said this: "To anyone but a lawyer it might seem obvious that in general this kind of evidence ought to be admitted. Here was a man accused of homosexual activities on the occasions for which he was indicted. He denied having done any such thing, making out the boys to be liars. Why should he be allowed to say this, and what is more, to assert that they were themselves a clique of buggers and yet remain silent about his own proclivities? Here we find his advisors setting out to conduct the case on the basis that it was immaterial to the questions which the jury had to decide whether he was a homosexual or not, and that nothing mattered except the narrow issue whether he had done the homosexual acts complained of. The appellant's position was therefore that he would say nothing about whether he was heterosexual, homosexual, bi- sexual or asexual. No questions could be asked of him to elicit this information, nor could any evidence (such as the incriminating articles) be layed before the jury might enable them to form an opinion on a matter which surely must have been foremost in their minds. Surely, so it might strike the layman, this cannot be fair. It is not uncommon to find in judgments a suggestion that a particular proposition might appeal to logician, but not to the ordinary man; or vice versa. In the present instance it might be said that to allow the appellant to run his case in this way would appeal to neither. Naturally we had in mind the rule, now well established for more than a century, that evidence of disposition may not in general be led against an accused person..." At page 331 the learned judge continued: "One must begin by asking whether, in a case where the issue is whether the act alleged by the complainant ever took place at all, evidence is admissible that the defendant had done similar acts in the fast, or could be shown through the possession of incriminating articles or otherwise, to have a leaning towards such acts. It is not hard to imagine legal systems in which such evidence would not only be admissible, but would be regarded as having high probative value. Nevertheless, this has never been the policy of t he English criminal law, not so much on the grounds of logic, but because it is considered that to entrust it to a jury would be too greater a risk. It is unnecessary to cite any more authority for this proposition that the oft-quoted opinion of Lord Herschell in Makin v the Attorney-General ...." The learned judge goes on to identify the exceptions that might arise with regard to that principle, prior to the alteration of the law and, in particular, the question whether it might be admissible in cases where the defence was one of accident. 21. That decision in Wright was followed in R v B(RA) [1997] 2 Cr App R 88 , where the appellant was charged with indecently assaulting his grandson and evidence of homosexual magazines was admitted. That was held to be inadmissible material. Rose LJ, in giving the judgment of the Court, referred to Wright and expressed the view that it was a decision which should be better known. We shall revert to that decision briefly in a moment. 22. Fourthly, to complete the summary of the argument presented on the appellant's behalf, the evidence was in fact introduced entirely as regards propensity and such is established by the terms of the summing-up. In that respect, Mr Bennett refers to three specific passages in the summing-up. Firstly at page 13: "So if you take those three pieces of evidence together, Members of the Jury, the extracts from the Landslide database, the credit card statement entries, and the entries in the notebook, the prosecution say that that is powerful evidence that this defendant was accessing child porn websites via Landslide in 1999, and that, say the prosecution, shows that he has an interest in child pornography." Then at page 14: "The relevance of this Landslide evidence, say the prosecution, is simply that it shows that the defendant had an interest in child pornography. The prosecution say that not only does he have an interest in child pornography as shown by that evidence but there's evidence that he had lied to you and lied to the police because he denied that it was he who accessed those sites." Then finally and perhaps most telling, having given the conventional direction with regard to the good character of the appellant, he went on: "Of course, Members of the Jury, against that you have to set the evidence depending on what you make of it as to his other interest in child pornography. The Landslide evidence, if you were sure it was the defendant who was trying to subscribe to child porn sites on Landslide and the evidence about the videos was suggested names, suggesting under age sex on them, you have to put that into the balance, Members of the Jury, when considering whether his good character means that he's less likely to have committed these offences." 23. Mr Van Der Zwart, for the Crown, challenges the applicant perception of the relevance of the material. Whether or not it went to propensity, he made it plain that the Crown were relying upon it in two respects. Firstly, to demonstrate that the appellant was lying in interview when he asserted that he was not interested in child pornography. His interview contained passages such as the following, and I read from the first page of the opening interview: "Initially SIMONS is reminded of the reasons for his arrest in relation to offences of attempting to incite in distribution of child and the making of indecent photographs of children. When invited to comment, SIMONS states he is completely shocked and 'gobsmacked' stating he isn't a paedophile and has never tried to distribute, or had an interest in child pornography." There is a similar exchange at pages 6 and 7 of the interview, where he having had his attention drawn to the titles of the various DVD and videos denies any propensity on his behalf for younger women and states that he viewed the disk believing he was watching people over the age of 18. 24. Secondly, Mr Van Der Zwart says that material was deployed to counter the suggestion that it was mere accident that the activities of a third party led to the images being present on his computer. The prosecution concluded that that submission had to be viewed against the background of his personal details, password and credit card being used to access "Landslide" some years earlier and the record of user names sent to his email address by "Landslide" which are contained in his notebook. 25. In considering these competing submissions it has to be noted, perhaps at the outset, that despite being represented by experienced counsel, no objection was taken to admissibility of the evidence at the trial, either in principle or by reference to section 78. Whilst not remotely determinative, this presents a significant obstacle, particularly with regard to any challenge to the exercise of the judge's discretion. Nor would it appear that the lack of objection was founded on a misunderstanding as to the asserted relevance of this material. The defence requested the judge to give a Lucas direction so that the jury might pause for thought in considering any lie about the use of "Landslide". 26. The approach adopted by the Court in directing the jury is summarised at pages 13 to 14 of the summing-up, where the judge said this, having referred to the "Landslide" database and the credit card statements and the notebook, and asserted that that was on the prosecution's case powerful evidence that the appellant had an interest in child pornography. He goes on: "The defendant -- defence say, on the other hand, no, firstly, it wasn't him. He's given evidence to say it wasn't him who accessed those websites. In any event it's suggested he wouldn't have subscribed to websites just before going away on holiday... the defence point to the fact that there is no evidence of downloaded child porn images on the computer which the defendant was using at the time.... Well, Members of the Jury, it's a matter for you to consider. You consider all of that evidence and make of it what you think is right. In any event, as the defence points out, this is not the central issue in this case. As Mr Ferm said on more than one occasion, this is not a Landslide case. In other words, there is no evidence that the images that we are directly concerned with - that is the 15 images on the new computer - there's no evidence that those images came from Landslide websites. The relevance of this Landslide evidence, say the prosecution, [the passage I have read], is simply that it shows that the defendant had an interest in child pornography." 27. To the extent that this is indeed the way in which this evidence was deployed, we are quite unable to accept that it was properly so deployed. Indeed, as we understand it, Mr Van Der Zwart disclaims that the material could be properly deployed in this way. The interrogation of the appellant as to the "Landslide" material should have been excluded from the interview altogether. If the appellant had admitted access to the "Landslide" site, it would not be relevant in any respect to the charges that he was facing. It makes it more no more relevant or admissible simply because he denied it. 28. That circularity of argument is demonstrated by the judgment of Rose LJ in B (RA) to which we have just referred. Towards the end of that judgment, at page 92, Rose LJ said this: "Mr Bright sought to submit that because, as he claimed, the appellant gave a dishonest answer in relation to his sexual proclivities, it was open to the prosecution to adduce evidence tending to show that he was a homosexual, because that went to credit. The difficulty with that submission is that, if it were correct, a person who habitually burgled house who in interview denied that he ever burgled houses could have adduced before the jury evidence of his previous convictions. That situation would simply not arise because the answers given in relation to proclivities with regard to burgling people's houses would, as it seems to us, properly be excised from the evidence of that which had transpired in interview. So, in the present case, in our judgment, the questions and answers bearing upon the appellant's alleged homosexual proclivities should have been excised from the interview; and there should have been excluded from the evidence which was led before the jury the magazines relating to male adult sexual activity of a pornographic nature which were found in his possession. The reason for this is that neither the answers nor the magazines were probative of anything save propensity; and that, in the judgment of this Court, following the judgment of Mustill J in Wright , is not a proper basis to render them admissible." 29. Although the point was only touched on briefly during the course of argument, it is no answer, in our judgment, that the material could have been deployed in cross-examination under section 1 of the Criminal Evidence Act 1898. First, the material would have been excluded from the interview and therefore would not be led as part of the prosecution case. Secondly, it cannot be assumed that the appellant would have led evidence in this regard. Thirdly, even if he had, he would presumably have denied access to "Landslide" and there the matter would have rested. Fourth, if the question of rebuttal evidence was raised by the Crown, we would regard it as extremely unlikely that it would have been admitted. 30. It strikes us that the material might well have been admissible by virtue of one of the exceptions to the rule in Makin v the Attorney General as being relevant to the issue of accidental making or presence of the photographs. In fact, it was not so deployed in that context, save perhaps with regard to the videos. 31. Even if that was the manner in which the prosecution intended to deploy it, it was certainly not the way in which the jury were directed to consider the material. Even if, as regards the video evidence, it was suggested that it touched upon the question of whether the images that had been obtained accidentally, nonetheless it is necessary, in those circumstances, to consider whether sufficient care had been taken in presenting a material to the jury. 32. In this regard, Mr Bennett rightly refers to the decision in R v Lewis (1983) 76 Cr App R(S) 33, where the applicant was charged with indecent assault and raised offences of accident. At the trial the evidence of his interest in paedophilia was led. This was challenged on appeal. The judgment of the Court was given by Donaldson LJ, as he then was. At page 37 of the judgment, he touched on the manner in which the material had been commented on by the learned judge in the course of his summing-up. Donaldson commented as follows: "This leaves the question of whether in the exercise of his discretion the judge excluded the evidence. Clearly could have an unduly prejudice effect if true impact and significance was not most carefully explained to the jury." Then a little bit later on he quotes from the summing-up, which contained the following passage: "You are entitled to refer to the documents which have you have seen or you've heard about, what you're not entitled to do, members of the jury, is to assume that any way, if you come to the conclusion that he does hold these opinions, we makes these statements or he possesses this sort of literature, that evidence goes to prove these charges of itself, it does not. If there is no adequate evidence that the alleged events occurred, you acquit him, whatever opinion he tolds. If you are satisfied on the evidence the events which the prosecution alleged did occur, then his attitude, opinion, literature, letters may be relevant in considering the effect, first of all what he said to the police about what it then meant and considering whether the matters you are satisfied did occur were accidental or innocent... The fact that a man has certain views, the fact that a man is admitted homosexual for instance, does not mean, that necessarily he's accused of it he's necessary committed an homosexual act with a boy." 33. The complaint that is made in the present case is that the jury were given no indication whatsoever of the significance of the "Landslide" evidence, and was in particular not told that if they concluded that the appellant had accessed the "Landslide" site, that he could not necessarily be viewed as having committed these offences. 34. We agree and indeed, as we understood Mr Van Der Zwart did not really challenge this proposition. The judge did not give an adequate explanation of the significance of the "Landslide" evidence or of the use it could be legitimately be put. 35. We turn, lastly, to the safety of the conviction. The appellant's explanation for the presence of the photographs was at best unconvincing, the more so given the prosecution evidence with regard to Trojan and spam emails. Nonetheless the "Landslide" evidence and the titles of the videos were much at the forefront of the case and very much at the forefront of the summing-up. Its influence on the case was significant. We appreciate the "Landslide" material might be potentially admissible in any retrial pursuant to 101 of the Criminal Justice Act 2003 . However, for all the reasons we had adumbrated, we have reached the conclusion that the conviction is unsafe and must be quashed. (Submissions re: retrial) 36. LORD JUSTICE TUCKEY: We do not think it fair to order a retrial in the criminal case again. We will not order retrial. Nothing we say will or should affect the course of any disciplinary proceedings which are in the process or contemplated against the appellant. 37. My Lord, I understand. Thank you very much.

2005_05_03-501.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1284/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1284

ff8a8fac1f303fb7200707cbe2481df5661764255ecbd40a752009182dcaab50

[2020] EWCA Crim 1723

EWCA_Crim_1723

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. 201903239 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Thursday, 3 December 2020 Before: LORD JUSTICE STUART-SMITH MR JUSTICE EDIS HIS HONOUR JUDGE BURBIDGE QC RECORDER OF WORCESTER REGINA V MUSTAFA KEMAL MUSTAFA __________ 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 J. MANNING appeared on behalf of the First Appellant. MR R. GREEN and MR M. LEWIN appeared on behalf of the Respondent. ________ J U D G M E N T LORD JUSTICE STUART-SMITH: 1 On 2 August 2019 in the Crown Court at Woolwich the appellant was convicted of an offence of failing to comply with an Enforcement Notice contrary to s.179 of the Town and Country Planning Act 1990. Upon that conviction, he was fined £5,000 and ordered to pay £10,000 towards the costs of the prosecution, together with the victim surcharge of £170. There were two co-accused, the Kulars, who we mention briefly as their involvement was severed and they have been separately tried. One was fined £3,000 and ordered to contribute £10,000 towards the costs of the prosecution and the other was fined £1,000. We need say no more about them at this stage. 2 The appellant now appeals against his conviction and sentence with the permission of the single judge. In his written advice and before us today, Mr Manning, who represented the appellant at trial, submits that the applicant's conviction is unsafe because the conduct of the trial judge amounted to unfair judicial treatment and undermined the fairness of the trial. For the Crown, Mr Green appears today and appeared before the court below. We are grateful to both counsel for their submissions. Applicable Principles 3 It is convenient first to deal with the applicable principles. In Serafin v Malkiewicz & Ors [2019] EWCA Civ 852 the Court of Appeal said at para.108 to para.110 under the heading " The principle of fairness ": "108. It is a fundamental tenet of the administration of law that all those who appear before our courts are treated fairly and that judges act - and are seen to act - fairly and impartially throughout a trial. 109. It is perfectly proper - indeed a duty - for a judge to intervene in the course of witness evidence for the purposes described by Rose LJ in R v Tuegel [2002] Cr App R 361 , namely 'to ask questions which clarify ambiguities in answers previously given or which identify the nature of the defence, if this is unclear'. OPUS 2 DIGITAL TRANSCRIPTION 110. It is wrong, however, for a judge 'to descend into the arena and give the impression of acting as advocate' (per Lord Parker CJ in R v Hamilton (unreported, 9 June 1969) cited by the Court of Appeal in R v Hulusi (1973) 58 Cr. App. R 378, 382)." 4 The decision of the Court of Appeal that there had not been a fair trial in that case was upheld by the Supreme Court [2020] UKSC 23 . There is no need for further citation of the principle from the Supreme Court's decision. 5 The importance of the judge staying out of the arena was emphasised by another constitution of this court in R v Gavin Inns and Emma Inns [2018] EWCA Crim 1081 at para.35 to para. 38 where Singh LJ said: "35. Thirdly, there is nothing wrong in principle with a trial judge asking questions of witnesses in order to assist the jury. That indeed is one of the fundamental functions of the trial judge. For example, this may be done to clarify a point that may arise on the face of a document or in an immediate response to an answer that has just been given by a witness. Otherwise, it may often be preferable for the judge to wait until the end of the evidence given by that witness, or at least the end of the evidence-in-chief. Often things that are not clear may become clearer once the evidence-in-chief has been completed. 36. Fourthly, since ours is an adversarial system it is for the prosecution to prove its case and it will have the opportunity to cross-examine the defendant if he or she chooses to give evidence. It will often be unnecessary for the judge to ask any questions during the defendant's evidence-in-chief because it should be for the prosecution to cross-examine the defendant. It is certainly not the role of the judge to cross-examine the defendant. 37. Fifthly, it is particularly important that the defendant should have the opportunity to give his or her account to the jury in the way that he or she would like that evidence to come out, elicited through questions from their own advocate. If there were constant interruptions of the evidence-in-chief there is a risk that a defendant will not be able to give his or her account fully and in the manner they would wish to put before the jury. 38. Sixthly, this is not affected by the fact that the defence account may appear to be implausible or even fanciful. If it is truly incredible, the prosecution can reasonably be expected to expose its deficiencies in cross-examination and the jury will see through it. If anything, unwarranted interventions by a judge may simply prove to be counterproductive." 6 The point was succinctly but imperatively made by the Privy Council in Michel v R [2009] UKPC 41 at para.31: "The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials." 7 The prosecution in responding to this appeal has provided a convenient working summary of the principles to be drawn from Serafin , Inns and Michel as follows: "1. The tribunal of fact is the jury. 2. The role of the judge is to act as a neutral umpire ensuring a fair trial between the prosecution and the defence. The judge should not enter the arena so as to appear to be taking sides. 3. There is nothing wrong in principle with the trial judge asking questions of witnesses in order to assist the jury. That is one of the fundamental functions of the trial judge. For example, this may be done to clarify a point that may arise on the face of a document or in an immediate response to an answer that has just been given by a witness. Interventions to clear up ambiguities, to identify the nature of the defence, if this is unclear, and to enable the judge to make certain that he is making accurate notes are justified. 4. Interventions which lead to a quashing of a conviction are: (a) those which invite the jury to disbelieve the evidence for the defence, which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury. (b) those which have made it really impossible for counsel for the defence to do his or her duty in properly representing the defence. (c) those which have had the effect of preventing the defendant himself from doing himself justice and telling the story in his own way. (d) those which compel the conclusion that the defendant has not been fairly tried by an impartial judge. 5. Not every departure from good practice renders a trial unfair. There will come a point, however, where the departure from good practice is so great or so persistent or so prejudicial or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. 6. Ultimately, the question is one of degree. Rarely will the impropriety be so extreme as to require a conviction, however safe in other respects, to be quashed for want of a fairly conducted trial process. 7. It is the overall fairness of a trial, taken as a whole, that is crucial.” 8 We endorse that summary and adopt the principles set out in the authorities that underlie it. In particular, it is necessary to bear in mind that a trial may have to be condemned as unfair and a conviction quashed as unsafe, however strong the grounds for believing the defendant to be guilty. In every case the ultimate question is whether a conviction is unsafe because of defects in the process. In approaching that question, the court should always be astute to distinguish between questions that are merely intended to clarify ambiguities or to enable a judge to take an accurate note and those which constitute entering unfairly into the arena. There may of course be occasions where the former runs the risk of morphing into the latter. That is a risk that must be avoided at all costs if the trial is to be seen to be fair. In saying this, we recognise that the move towards greater case management and proactive involvement of the judge in the trial process may mean that some of the older statements of principle have to be seen in the light of an altered landscape. What remains unchanged is that the touchstone is fairness. The Facts 9 With these principles in mind, we turn to the facts. On 14 December 2016 Sevenoaks District Council issued an Enforcement Notice in respect of a two-storey property on land adjoining the former Convent of Mercy, Sycamore Drive, Swanley. The Notice took effect from 20 January 2017 and the time for compliance was six months expiring on 20 July 2017. The appellant was said to be in control of the land at the time and thus in breach of the Notice by allowing its use as a hostel from 21 July 2017, when that time expired, through to 11 May 2018 when a Closure Order was obtained. 10 On 23 September 2013 Cameo Real Estate, a company owned and controlled by Mr and Mrs Kular, to whom we have briefly referred, leased the property to Housing Care Association Ltd. ("HCA") as the tenant, with the appellant as a guarantor. HCA was a company limited by guarantee. The appellant was a director of HCA. He was registered as the sole director with Companies House from 27 March 2013 until he resigned his directorship on 31 August 2017. The lease was for three years with an initial rent of £44,000 per annum. The appellant's obligations as a guarantor were to ensure that HCA performed its obligations under the lease. In a further document dated 24 September 2013 it was agreed by Mr Kular and the appellant as the director of HCA that when the three-year lease expired a further three-year lease would be granted. It was the appellant's case that despite formally remaining a director he handed over control of HCA to someone called Wayne Pinnnock and his father from about November 2016. 11 The Council made a number of visits to the property and noticed breaches of planning control. In December 2016 a decision to take enforcement action was taken by the chief planning officer. The Enforcement Notice with regard to use of the property as a hostel came into effect on 20 January 2017 and, as we have said, the date for compliance expired on 20 July 2017. Various site visits took place after that date with evidence being given about the occupation of the property and activities being carried on there. 12 On 31 August 2017 the appellant resigned from his directorship of HCA. A further visit to the property was made by a Ms Webb on 11 September 2017. She noticed that there were three or four people living in the three bedrooms on the first floor and that five rooms on the ground floor were also occupied and being used as bedrooms. Part of the ground floor had been converted into a self-contained flat. On 25 September 2017 an order was made in the Companies Court winding up HCA as insolvent. In October 2017 a claim for possession of the property was made by Mr and Ms Kular acting for the landlords against the administrator of HCA and the appellant. 13 On 23 February 2018 Ms Salter revisited the property with Ms Webb and noted that it was still being used as a hostel and had a sign up for "Atilkan Lettings." The appellant explained that his father had put up the sign and they should contact his father about it. On 26 April 2018 Ms Webb visited the property with a housing standards officer to offer housing advice. The appellant was present and remained present when some of the residents were spoken to. At one stage, the appellant intervened when Ms Webb asked a man about living at the property. The appellant said no one lived there and, thereafter, the man stopped speaking. 14 As we have said, on 11 May 2018 Sevenoaks District Council obtained a Closure Order from Sevenoaks Magistrates' Court prohibiting anyone having access to the property for three months. On 29 May 2018 solicitors acting for the appellant issued an Appeal Notice against the Closure Order. The notice stated: "I was not given an adjournment as requested in order to have funding for Legal Aid and to obtain evidence through my father that I was not involved with the premises in question. My father is the leaseholder." 15 On 18 June 2018 Cameo applied to amend their civil proceedings so that they were no longer brought against HCA, which had ceased to exist, but were brought against the appellant and others unknown. Within their particulars of claim they alleged that the appellant had gone into occupation of the land without permission, there were unknown persons present in the property and that the appellant had continued to occupy and use the premises as a scrapyard to dismantle cars. The appellant had ultimately abandoned his appeal. 16 On 10 August the Council applied for a three-month extension of the Closure Order. The appellant emailed Ms Webb in response and said within his email: "I want my building back how it was, Kelly." 17 On 15 August 2018 Ms Webb returned to the site to allow one of the residents, Vilmos Vargas, to collect his belongings. Mr Vargas told her that he paid his rent to the appellant via Wendy Aldred and he signed the inventory form and produced a bank statement showing payment of rent with a reference "Resset Mustafa" (the appellant's father's name). The Trial 18 We turn to the conduct of the trial. We should start by saying that it is clear from the transcripts that both the appellant and the prosecuting authority were represented by counsel who were fully competent to act in a trial of this nature. Specifically, their presentation of the case and the conduct of examination-in-chief and cross-examination was appropriate and competent when given a clear run. We make no criticism of either counsels' conduct of either examination-in-chief, cross-examination or re-examination. 19 There were two live issues at the trial. The first was whether the appellant was a person who had control of the property between 21 July 2017, when the Enforcement Notice became effective, and 11 May 2018, when the Council closed down the property. The second was whether during that period the appellant as a person having control of the property caused or permitted its use as a hostel. 20 The appellant started his evidence-in-chief on the afternoon of 31 July 2019. The case was adjourned overnight. In the morning of 1 August 2019 his evidence continued. His examination-in-chief continued from 11.09 to 12.33. Cross-examination then lasted into the afternoon, followed by brief re-examination. Some indication of the duration of his evidence is provided by the length of the transcripts which covered 16 pages on 31 July and 91 pages on 1 August 2019. Early in his evidence the appellant said that he had been diagnosed as having ADHD and a Personality Disorder in October 2016. He explained his symptoms as being disorganised in his thoughts and lacking in concentration and that it was difficult for him to concentrate. His case was that these conditions though undiagnosed were of long-standing, but in the second part of 2016 things had become too much for him for a number of reasons and that he stepped back from running HCA's business at about the time of this diagnosis or shortly thereafter. This last proposition was contentious and was central to the issues to be determined by the jury, but there was never any doubt that the defendant suffered from the mental illnesses with which he had been diagnosed. 21 Having read the transcripts with the benefit of hindsight and without professing any particular medical knowledge, it seems to us that there are distinct signs in the appellant's evidence of his becoming disorganised and flustered when put under legitimate pressure by counsel for the prosecution and when being subjected to questioning by the judge. In saying this, we do not suggest that prosecution counsel acted inappropriately in his cross-examination of the appellant. He did not. His cross-examination was well-structured and his questions almost always entirely clear. It should also be noted that the appellant was softly spoken and had to be asked to speak up at fairly regular intervals. This was done appropriately on each occasion. It is clear that his command of English, though good, is not always perfect, which may have contributed to the difficulties that are always inherent in conducting both examination-in-chief and cross-examination before a jury. We make full allowance for any difficulties that these features may have caused. It is also right that we should record that, with one or two possible exceptions where the transcript suggests that the judge was somewhat sharp with counsel, the judge was always courteous. While we are conscious that reading a transcript does not enable us to hear the tone or speed of delivery of what was recorded, the transcript does not demonstrate overt hectoring or bullying of a witness at any point, though the judge's questioning was sustained and very extensive. Counsel for the appellant has not suggested otherwise. 22 The criticism that is made of the judge can be supported by a broad analysis of the scale of the judge's interventions during the appellant's evidence. Mr Manning's analysis, which we take as indicative, is that during the continuation of his examination-in-chief on 1 August 2019 approximately 257 questions were asked of the appellant, of which approximately 116 were asked by the judge. During his cross-examination approximately 327 questions were asked of the appellant, of which 110 were put by the judge. These figures are themselves startling. However, they tell only part of the story. 23 On the afternoon of 31 July 2019 the judge's interventions were, in our judgment, within reasonable bounds. He asked for clarification of the appellant's diagnosis and later for clarification of the appellant's evidence that he had been preparing to start a new business involving Smart Cars. Shortly before the end of the day's hearing, he obtained clarification of the rent that the appellant said he had been paying his father for the use of all rooms in the building, which he said he used in connection with the proposed Smart Car business. We would not criticise any of the interventions on 31 July 2019. 24 On 1 August 2019 the position changed. Almost from the outset, the judge's interventions in Mr Manning's examination of his client in-chief became numerous and disruptive of the reasonable approach being adopted by counsel. Counsel gave a polite indication to the judge by pointing out at a very early stage that the question just asked by the judge would have been the next question that he, counsel, would have asked. Quite soon, in our judgment, worrying signs of the judge entering the arena emerged. An early example was when counsel asked the appellant when HCA's lease had ended. Without waiting for the witness to answer, the judge intervened by saying: "Well, this lease ended in September 2016. We know that from his terms." Counsel again responded appropriately that he had been asking the appellant whether he, the appellant, knew when it ended. 25 Taken in isolation, this might seem trivial. However, it cannot be seen in isolation. On the next page of the transcript as counsel was asking the appellant an important question about whether a document indicated that the appellant had control of the building, the judge intervened again with a series of questions that were on an unrelated topic, namely the renewal of HCA's lease. This continued for approximately two pages of transcript and had the effect, no doubt unintended, of deflecting counsel from the important point he had been asking about. After that intervention, counsel tried a different topic, namely when HCA stopped paying rent. Once again, the judge intervened, this time to ask about what had happened in September 2016. This intervention lasted about two pages and can properly be described as entering the arena and taking control of the examination-in-chief. 26 The next significant intervention happened about two pages later when counsel asked his client by an appropriate non-leading question if he knew why HCA had been wound up. The judge intervened by saying: "Well, if you look at p.370, which we have already looked at, you know why." 27 Counsel respond entirely fairly: "Yes, I know we do know why. I am just asking this witness if he knows why, because he is giving evidence." 28 Once again, had this been an isolated intervention, no serious complaint could be made, but it was not isolated as is illustrated by the fact that by this time the transcript of the morning's proceedings had covered ten pages, of which well over four had been taken up by the judicial interventions that we have outlined above. We do not suggest that every intervention was either unhelpful or inappropriate. For example, on p.15 of the transcript the judge asked an appropriate and helpful clarificatory question about whether the appellant was aware of a notice that had been served by the local authority. However, on the following two pages, the judge appears to have entered the arena again in terms more appropriate to cross-examination than judicial intervention in a passage that in our judgment was unnecessary, given the competence of counsel who was still trying to take his client through his evidence-in-chief. In our judgment, an impartial observer could by now have formed the clear view that the judge was entering the arena to take over conduct of the evidence and that the form of his questions had gone well beyond the merely clarificatory. 29 After a period that was substantially free from further intervention, counsel for the appellant concluded his examination-in-chief on p.24 of the day's transcripts of evidence. There then followed a passage which covers eight pages of transcript in which the judge took over the questioning completely, asking about the number of occupants in the property at various times and the number of visits made by the appellant to the property. He prefaced his intervention by saying: "Before we have cross-examination, I would like to understand, rather than dotting around through the documents, what happened. So let me ask you a few questions to try and elicit what happened." 30 We do not think it is unduly sensitive to suggest that this can be seen as implying criticism of defence counsel's conduct of the appellant's evidence-in-chief, criticism which in our judgment would not have been and was not merited. We accept that both of the topics pursued by the judge could have been viewed as relevant. We are, however, unable to accept that this passage represented simple clarification of the evidence that had been given up to that point. In particular, the numbers of people at the property, which was relevant to whether the building was being used as a hostel, was an area that appears to have been of interest to the judge at this point, rather than being something raised but left untidy and requiring clarification at the end of examination-in-chief. We do not know whether prosecuting counsel would have considered it necessary or desirable to pursue the points if the judge had not pursued them as he did. We are, however, clear in our view that the appropriate course, not least because of the scope of the judge's interventions up to that point, would have been to leave it to competent prosecuting counsel to develop the case as he thought fit. If there had been any residual lack of clarity at the end of cross-examination or re-examination, it could then have been appropriate for the judge to ask questions, but we have no reason to assume that counsel's cross-examination would not have covered the main points sufficiently in due courses. 31 In the light of this intervention, the appellant's counsel reasonably asked some supplementary questions to deal with the points that had been raised. During those questions, the judge intervened again, challenging counsel about whether counsel was looking at the right floor of the building in asking his questions. As a matter of fact, he was and Mr Manning includes this intervention as one which he considers to have been objectionable. We take a different view since the question demonstrated a difficulty on the part of the judge in following counsel's questions, which it was reasonable to try to resolve. However, it contributes to the overall picture of the sheer weight of numbers of interventions. 32 The high, and we would say inappropriate, level of intervention during examination-in-chief stands in contrast to the restraint shown during the early stages of cross-examination, lasting for about 19 pages of the 90-page transcript of the appellant's evidence on 1 August 2019. However, from then until the conclusion of counsel's cross-examination, the interventions increased in number and significance. 33 We shall not lengthen this judgment yet further by exhaustive citations, but the interventions may reasonably be characterised as entering the arena and taking over the cross-examination. One particular example arose where the judge again pursued the question of how many bedrooms were in the building and who was there, which would have been proper cross-examination material for the prosecution, but did not warrant further intervention by the judge at that point. We give one further example, which occurred towards the end of the appellant's evidence: JUDGE: Can we just go back? What do you say about, ‘My father is the leaseholder;’ was he the leaseholder or not? WITNESS: There was an agreement between – I wasn’t there – concerning the Kullars, Wayne. What exactly it was concerning the building works that was going on, I don’t know. I don’t have – I don’t know what the agreement was. I can only tell you what I know. They were doing four flats, that’s what they were doing. JUDGE: ‘I don’t know what the agreement was, ’ well, if you do not know what the agreement was, how come your solicitors were saying on your behalf, ‘I was not involved with the premises in question. My father is the leaseholder.’ [Emphasis added] 34 Once again, if this could be seen in isolation, it might not be cause for substantial concern, but by this point we are satisfied that the judge's interventions had long crossed the line of what would be acceptable. Read in that light, this example takes on a different hue. 35 At the very end of the appellant's evidence, prosecuting counsel was cross-examining on the terms of HCA's lease. In the course of an intervention which we would not otherwise criticise or mention, the judge said: "The terms [of the lease] may be important ... but we were asking, you were being asked about ... " [Emphasis added] To our minds, this slip of the tongue provides a reasonable, if concise, encapsulation of the problem that was endemic throughout the appellant's evidence. 36 After the appellant's evidence, a witness was called on his behalf called Mr Vargas. He is from Romania and his English is poor. He was asked questions in chief about how he came to live at the building and to whom he paid rent. The prosecution chose not to cross-examine. The judge then opened a new line of questions for the witnesses, effectively taking the role of cross-examiner. He asked him about how many people had lived in the premises from time to time and whether the building had been subject to conversion at any time. The witness' poor English makes it difficult to decipher what he was actually saying, though he does not appear to have supported any suggestion that the building was subject to extensive conversion from multi-occupancy to self-contained flats or that there was no one living in the property at the time of the Closure Notice. When the appellant's counsel attempted to re-examine by reference to a plan, the language difficulties became insuperable. 37 The judge summed up the case to the jury on 2 August 2019 with a split summing-up enveloping counsels' speeches. There is no criticism to be made of the judge's legal directions or of his summary of the evidence. On any view, there was ample evidence to sustain a conviction. The Appeal 38 We turn to the appeal against conviction. Although advancing one ground of appeal, Mr Manning summarises his submissions under three sub-headings. We can deal with the first two together. They are that, one, the judge acted as a third advocate, clearly and repeatedly descending into the arena and, two, examinations were "taken over" by the judge at multiple instances, demonstrating that he had developed an animus towards the appellant. 39 We accept the criticism that the judge clearly and repeatedly descended into the arena and refer to our summary of the course of the trial as set out above. For most of the appellant's evidence-in-chief on 1 August 2019 the natural flow of counsel's efforts to adduce his client's evidence were subject to disruptive and frequently unnecessary interruptions. As we have identified, on at least one occasion it is clear that counsel was diverted from a proper line of examination and did not return to it after interruption. We do not criticise counsel for failing to return to the point he had reached: being deflected is a vice that is to be expected from such interruptions. A number of interventions can, in our view, reasonably be described as taking over the examination-in-chief. The most pronounced examples of those we have described as happening at the end of the appellant's evidence-in-chief and when the prosecution had decided not to cross-examine Mr Vargas. Each can equally be characterised as usurping the proper function of the prosecution, whose job it is to challenge, where it sees fit, in order to prove the case that has been brought against a defendant: see para. 36 of Inns which we have cited above. Similarly, the progressively increasing level of intervention during cross-examination gives the impression on occasion of a level of involvement that is inimical to the adversarial system and the role of the judge as neutral arbiter. 40 We should make one thing clear, we do not detect any conscious animus on the part of the judge against the appellant; nor is this a case where the judge can be said to have set out or determined to crack the thin ice on which he thought the appellant was skating: see Gunning [1994] Crim App R 303 at 306 per Cumming-Bruce LJ. That said, the judge's questions typically probed and tended to undermine the appellant's evidence in a manner that contributes to our finding that he entered into the arena and, ultimately, that he did so unfairly. 41 In our judgment, the interventions prevented the appellant's counsel from doing his duty properly in presenting his client's evidence and, thereby, prevented the appellant from doing himself justice. Our judgment is influenced by the fact that in this case the judge was dealing with a defendant who was at a disadvantage, because of his diagnosed mental illnesses, which were known to the judge. Some of the interventions which we consider to have been inappropriate, if viewed individually, might have been acceptable had the defendant not been subject to those disadvantages. However, given the known characteristics of the defendant, we are clear in our view that they crossed the line. Put in slightly different terms, we conclude that the core principle identified in Michel , namely that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, was materially infringed to the point of unfairness. 42 We have said that the summing-up cannot be criticised and that there was evidence on the basis of which a conviction properly obtained could be sustained. We have considered anxiously whether the summing-up can be said to have remedied the problems that flowed from the earlier conduct of the trial. However, our judgment is that the sheer scale and content of the interventions were inimical to the adversarial system and lead to the conclusion that the appellant was not fairly tried, as he should have been. We therefore quash the appellant's conviction on the basis of Mr Manning's first two submissions. 43 Mr Manning's third submission is that the judge trespassed on previous rulings on admissibility. In the light of the findings we have just made, we can deal with this very shortly. The question related to hearsay evidence about the recipient of Mr Vargas' rent. It is submitted that the judge made an inapposite remark to the jury when asking them to retire while a question of law was raised. In our judgment, the remark adds nothing material and certainly would not be a reason for allowing an appeal if treated as a freestanding complaint. Otherwise, the dispute about the hearsay that could be admitted appears to us to be narrow to the point of vanishing. We do not accept the substance of the third submission and would not allow an appeal on the basis of it. 44 In the result, this appeal must be allowed. We therefore do not address the separate question of the appeal against sentence. We would only say that if there were to be a retrial and a conviction, it would be for the judge in those proceedings to decide on an appropriate sentence, including any order for costs. We should not be taken as having expressed approval, or indeed any view, on the sentence passed below in the present case. _______________ 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 is subject to the Judge’s approval.

2020_12_03-5034.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1723/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1723

2a899bf2cd8829493231aa7cd6a49ff1c46e863b802bf86df84797803d773d9e

[2007] EWCA Crim 1843

EWCA_Crim_1843

crown_court

No: 200700037 A9 Neutral Citation Number: [2007] EWCA Crim 1843 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 5th July 2007 B e f o r e : LORD JUSTICE GAGE MR JUSTICE STANLEY BURNTON HIS HONOUR JUDGE CHAPMAN (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ZAHEER ALI TARIQ MAHMOOD - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Note

No: 200700037 A9 Neutral Citation Number: [2007] EWCA Crim 1843 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 5th July 2007 B e f o r e : LORD JUSTICE GAGE MR JUSTICE STANLEY BURNTON HIS HONOUR JUDGE CHAPMAN (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ZAHEER ALI TARIQ MAHMOOD - - - - - - - - - - - - - - - - - - - - - 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 A Iqbal appeared on behalf of the Applicant , Ali. Mr B Mahmood appeared on behalf of the Applicant, Mahmood. - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE GAGE: Zaheer Ali is now aged 22 and Tariq Mahmood is 35. On 24 November 2006, at Sheffield Crown Court, each of these two appellants pleaded guilty to conspiracy to transfer prohibited weapons. On 27 November they were sentenced as follows: Ali to four years' imprisonment, the judge ordered that three days, which he had already spent in custody, should count towards his sentence; Mahmood to eight years' imprisonment, the judge directed that 171 days, that he had already spent in custody, should count towards his sentence. 2. Each of them appeal by leave of the single judge. There were two co-accused: Mazhar Ali pleaded guilty to conspiracy to transfer prohibited weapons and conspiracy to acquire ammunition. He also pleaded guilty to possession of a Class A drug with intent to supply. He was sentenced to a total of six-and-a-half years' imprisonment, made up of three-and-a-half years in respect of the weapon offences and three years for the drugs’ offence. The fourth co-accused, Ishfaq Ali, pleaded guilty to conspiracy to transfer prohibited weapons. He was sentence to five years and four months' imprisonment. 3. The facts can be shortly stated and are as follows. In May and June 2006 the police carried out observations on Tariq Mahmood. As a result of those observations, all four defendants were arrested on 7 June 2006. The observations revealed that Mahmood was seen to be connected with two vehicles, a black SAAB and a Ford Fiesta. On 7 June 2006, there was evidence of telephone contact between Mahmood and all four defendants. Zaheer Ali was in contact with Ishfaq Ali by telephone on that date. Later on that day there was a call from Mahmood to Mazhar Ali to set up the handover of two guns, silencers and 90 rounds of ammunition. They were later recovered from the Ford Fiesta in circumstances which we shall now describe. 4. On that day, 7 June, Zaheer Ali and Ishfaq Ali, were seen travelling in the Black Ford belonging to Mahmood from Bradford to Sheffield. In Sheffield the vehicle was seen in the area of White Thorns. Those two men and Mahmood then met. Zaheer and Ishfaq then drove off in the Fiesta and the SAAB. Both cars were next seen parked on Avenue Road. About five minutes later Mazhar Ali approached the vehicle carrying a carrier bag. He put the bag in the rear of the vehicle. Both the SAAB and the Fiesta then drove to a petrol station. When they were there they were seen by the police and arrested. The bag in the rear of the Fiesta, driven by Zaheer Ali, was found to contain two handguns, two silencers and 90 rounds of ammunition. 5. At the same time that these two men were arrested Mazhar Ali was arrested at his home address. A subsequent search of those premises revealed four handguns, six silencers and a quantity of ammunition, which had been delivered to Mazhar Ali's home on an earlier occasion. There was also discovered to be one-and-a-half kilos of heroin in the house. Mahmood was arrested on the same day. 6. In the course of his interview Mazhar said that all the guns and ammunition belonged to Mahmood as did the drugs. Mahmood was not charged with any drug-related offence in connection with this matter. Mazhar said that he had been forced to look after them for Mahmood. Zaheer Ali said that he had gone to Sheffield with Ishfaq Ali to collect the Fiesta. He did not know what had been placed in the rear of the car by Mazhar. Mahmood made no reply to any questions asked of him at interview. At the sentencing hearing Mahmood denied that he had exerted any pressure on Mazhar to take the guns and drugs. 7. Zaheer Ali, as we have said, is now aged 22. He had one caution in April 2005 for possession of an offensive weapon, however the judge treated him as a man of good character. 8. So far as Tariq Ali is concerned, he had six previous court appearances for seven offences between June 1990 and June 2003. The judge said of them that there was nothing of a similar character to the matters which he had to be sentenced for. There were no pre-sentence reports before the court. 9. The grounds of appeal are as follows: on behalf of Mahmood Mr Singh, who appears before this court and had advised Mahmood up to, but not at the date of the sentencing hearing, makes essentially three submissions. First he submits that insufficient credit was given by the judge for Mahmood's guilty plea. The facts are that Mahmood appeared at court first in September 2006. On that occasion he was not arraigned. The prosecution indicated that further material was to be served. 10. On 13 November 2006, in a letter from the Crown Prosecution Service to the court manager of the Sheffield Combined Court Centre, which was seen by Mahmood's adviser, the CPS indicated that further material was to be served and that an application might be made to amend the indictment. In fact, we are told that there were discussions between prosecuting counsel and defence counsel, Mr Singh, which resulted, on 24 November, in Mahmood and the other two defendants pleading guilty to count 1 on the indictment, which was count 1 on the original indictment. The trial had been listed for the following week and they were sentenced four days later. 11. Mr Singh submits that Mahmood was entitled to wait until the prosecution had served all its material and decided how to put its case. Each case will turn on its own facts, but in our judgment the difficulty with the submission made by Mr Singh, on behalf of Mahmood, is that he could have admitted his guilt when he was first interviewed. In fact he did not. He could have indicated a willingness to plead guilty at the hearing in September. He did not. In marked contrast his co-accused, Mazhar Ali, admitted his part in the offence when first interviewed by the police. He pleaded guilty, or at least indicated a willingness to plead guilty, in September 2006. The applicant could have done the same, if he had chosen to. In our judgment the judge was quite correct when he said that Mahmood was only entitled to a very limited credit for his guilty plea. 12. Secondly, Mr Singh submits that there is a disparity of sentence when Mahmood's sentence is compared with that passed upon his co-accused, Mazhar. There is, in our judgment, nothing of substance in this submission. In his sentencing remarks the judge made clear that Mazhar was in a very different position. Not only was he entitled to full credit for his pleas of guilty made at the earliest opportunity, he had co-operated with the police and made a statement implicating the others. Clearly he was entitled to be dealt with on an entirely different basis. 13. Finally, Mr Singh submits that the sentence passed upon Mahmood indicated too high a starting point before credit for a guilty plea, since it was too close to the maximum sentence of ten years for this particular offence. In addition he referred the court to the Attorney General's Reference (No) 120 and 121 of 2004 1 Crim App R (S) [2006] 44. This was a very different case where the offenders were charged with three different conspiracies, all connected with the manufacture and supply of guns and ammunition. In our judgment it affords little assistance in this appeal. 14. So far as Ali was concerned, on his behalf Mr Iqbal makes a number of submissions. They can be summarised as follows: it is submitted that he was only involved in the conspiracy on the one day, namely 7 June. His involvement, it is submitted, was very limited and he was unaware that there were weapons in the car which he was driving until he heard a clunk of metal and telephoned his co-accused, Ishfaq Ali. He was then told that what he was carrying was weapons. 15. Reliance is placed on his guilty plea. It is accepted that it was tendered at a late stage, but, as the judge took into account, it was notified a little earlier. Mr Iqbal draws attention to this appellant's good character. He submits that there was no pre-sentence report which might have assisted the judge in setting the appropriate sentence. 16. In sentencing these two appellants and their co-accused the judge said: "All four of you in a variety of ways were involved in the professional distribution of firearms. This was a professional enterprise and its only purpose could have been to supply other criminals with packages for them to use during their activities. In total there were six firearms. They all were brand new, having come from Russia, having been altered and without identification marks. Each was an automatic pistol and each was to be packaged with a silencer and 30 rounds of ammunition. It is clear to me that this falls towards the highest end of this type of criminality and, in this day and age, those who traffic in firearms will receive severe sentences and those are the types of sentences I intend to pass, all of them hopefully to act as some deterrent to other criminals who are minded to act in this way." 17. We agree with the judge. These were serious offences. Gun crime in the cities of this country has become all too prevalent in recent years. Anyone found guilty of facilitating the unlawful dissemination of such weapons must expect to be punished severely. The judge described Mahmood as the organiser of the transportation and distribution of the guns. He pleaded guilty at a very late stage. In his case the sentence passed upon him was a severe sentence. In our judgment it was inevitable that he would receive a substantial sentence. As the judge said, there had to be an element to deter others. In the result we conclude that although the sentence was indeed severe, it was not manifestly excessive. His appeal is dismissed. 18. So far as Ali is concerned, he was, in the judge's assessment, the least involved and the least culpable. He pleaded guilty at a late stage, but gained some credit for his plea, which he had notified a little earlier. He is a young man of hitherto good character. In all the circumstances we conclude that the sentence passed upon him of four years was longer than was necessary, although not a great deal longer. We propose to quash his sentence of four years and for it substitute a sentence of three years and six months. To that extent, and for those reasons, his appeal succeeds.

2007_07_05-1160.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1843/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1843

37ae762d90351a5b7dcce13979981349d305d0e313405e247b15ecf2c96e1376

[2007] EWCA Crim 941

EWCA_Crim_941

crown_court

No. 2006/05527/A7 Neutral Citation Number: [2007] EWCA Crim 941 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday 2 April 2007 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) LORD JUSTICE LATHAM ( Vice-President of the Court of Appeal Criminal Division ) and MR JUSTICE TREACY __________________ R E G I N A - v - DONALD SMITH __________________ Computer Aided Transcription by Wordwave Int

No. 2006/05527/A7 Neutral Citation Number: [2007] EWCA Crim 941 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday 2 April 2007 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) LORD JUSTICE LATHAM ( Vice-President of the Court of Appeal Criminal Division ) and MR JUSTICE TREACY __________________ R E G I N A - v - DONALD SMITH __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MISS C DONNELLY appeared on behalf of THE APPELLANT ____________________ J U D G M E N T THE LORD CHIEF JUSTICE: I will ask Mr Justice Treacy to give the judgment of the court. MR JUSTICE TREACY: 1. On 28 March 2006, following a trial in the Crown Court at Canterbury, the appellant Donald Smith was convicted of offences of buggery and rape. On 3 October 2006, he was sentenced by His Honour Judge Webb as follows: for buggery, five years' imprisonment and for the rape, an extended sentence of six-and-a-half years' imprisonment, of which the custodial element was five years. The total was an extended sentence of eleven years and six months' imprisonment. The jury was unable to agree about a number of other offences of rape on the indictment and they were ordered to remain on the file on the usual terms. The appellant appeals against sentence by leave of the single judge. 2. The offences arise out of long-term relationships which the appellant had with both complainants, one of whom we will refer to as "E" and the other to whom we shall refer as "A". E was the victim of the buggery offence which was committed in 1992. A was the victim of the rape offence which was committed in 2004. 3. In 1992 the complainant E was in a night club with the appellant and a male friend. The appellant suggested that the male friend could have sex with the complainant E and apparently E agreed to this. Accordingly sexual intercourse took place between the male friend and E while the appellant watched. Some days later the appellant and the complainant E were having consensual sexual relations in the course of which the complainant's hands were tied to the headboard of their bed. The appellant then turned the complainant onto her front. He inserted his finger into her anus, despite her protests. He then inserted his penis into her anus, again against her will. She was crying and told him to stop, but nonetheless the appellant continued. He pushed her face into a pillow as he did so. He told her that he was doing it to punish her for paying more attention to the male friend than to him a few nights earlier. The appellant then inserted his penis into the complainant's vagina and ejaculated. 4. The second offence occurred some time in March or April 2004. At that time the appellant was in a relationship with the second complainant A. Six weeks or so earlier the complainant had given birth. As a result of an episiotomy her stitches were still in place and she was unable to have sexual intercourse. In the bedroom of their home the appellant forced the complainant onto a bed and forced the victim's legs apart. She started to scream, but the appellant persisted. He then vaginally raped her whilst she struggled. 5. In passing sentence the judge observed that both complainants were deeply affected by the offences committed against them. He commented also that the appellant had put them both through the ordeal of having to give evidence. The judge expressly said that the custodial term took account of the principle of totality. 6. The appellant is 38 years of age. Apart from these matters, his only other conviction relates to an offence of theft committed in May 2001. 7. There was a pre-sentence report before the sentencing judge. The author of that report said that the appellant had shown scant regard for the complainants and that he had a need not to be perceived as a violent and controlling individual. The appellant was assessed as posing a risk to women in any future relationship. The author of the report said that the harm posed would be significant and recommended an extended sentence. 8. There was also a psychiatric report before the judge. It said that the appellant did not suffer from any significant psychiatric illness although at the time of the preparation of the report he was receiving antidepressants for mild depression. That report raised concerns about future relationships which the appellant might have with women as he would seek to be dominant and controlling within such relationships. There was no evidence that he was a sexual predator, so he did not appear to pose a risk to women outside relationships. 9. In the written grounds of appeal settled by counsel it is submitted that the sentence which was imposed was not appropriate for the totality of the criminal behaviour, and pointed out that none of the aggravating features identified in R v Milberry [2003] 2 Cr App R(S) 31 at page 142 were present. That submission has faded into the background in the course of oral submissions made to the court today. The primary thrust of the appeal is that the appellant was sentenced under the provisions which applied prior to the Criminal Justice Act 2003 and that therefore it is a more onerous sentence than had he been sentenced under the provisions of the Criminal Justice Act 2003 . Counsel submits that the effect of being sentenced under the old regime is that the appellant will be likely to spend a longer period in custody. 10. The guideline case of Milberry equates anal and vaginal rapes. It also makes plain that a rape committed by a spouse or partner is to be regarded with equal seriousness to a rape committed by a stranger. The sentence in either case must be increased or reduced by reference to specific aggravating or mitigating features. Milberry indicates a five year starting point in a contested case, but with the category of an eight year starting point where certain aggravating features are present. 11. In the current cases, whilst it may be that there are no features which clearly put either offence into the eight year category, there are aggravating features. In both cases the victims were significantly affected by their experience. In both cases the appellant took advantage of his relationship with the women to commit the offences. In E's case what was done was done as a punishment. In A's case the offence was committed against a woman known to the appellant to be suffering from the physical after effects of childbirth. The appellant had already committed the serious sexual offence against E. 12. In our judgment, there being no real mitigation to the appellant, a judge dealing with each case in isolation would probably have passed a greater sentence than five years for the episode involving E, and certainly would have in A's case. The judge was right to pass a consecutive sentence for the second offence. He plainly made allowance for totality, and indeed he said so. In our judgment he made an appropriate allowance and the total term of ten years cannot be criticised on grounds of totality. Indeed, counsel has recognised as much before us this morning. There is no criticism of the 18 month extension period which was entirely justified on the information available to the judge. 13. We turn to deal with counsel's second submission which is that, since both of these matters fell to be sentenced under the pre-2003 Act sentencing regime, the appellant will spend longer in custody than someone sentenced under the new regime in Chapter 6 of Part 12 of the Criminal Justice Act 2003 . The point is made that the sentence falls under the former long-term sentence Release on Licence provisions which applied to sentences of four years or more, whereas had the second offence been committed after 4 April 2005 the present release provisions under the 2003 Act would have applied to the sentence, irrespective of the fact that one of the offences was committed in 1992. The sentence in this case was imposed in October 2006. 14. Paragraph 19 of Schedule 2 of SI 2005 No 950 provides that the new release provisions have no effect in relation to a sentence of imprisonment imposed for an offence committed before 4 April 2005. The old provisions which were contained in sections 32 -39 of the Criminal Justice Act 1991 provided a system of discretionary early release for those serving four years or more. A prisoner might be released after half the custodial term was served. He was entitled to release after two-thirds of the period had been served. He would then be subject to licence up to the three-quarter point of the sentence. The 2003 Act provides that a prisoner serving 12 months or more is automatically released after serving half of the sentence, but then is on licence for the whole of the remainder of the sentence and liable to recall to custody throughout the period. 15. In considering the effect of these changes the Sentencing Guidelines Council gave guidance in New Sentences: Criminal Justice Act 2003 . This guidance was published in December 2004. At paragraph 2.1.2 of the relevant part of the guidance it is said that the impact of a custodial sentence under the new framework will be more severe since the period in custody and under supervision will be for the whole of the period set by the judge. At paragraph 2.1.7 the Council recommended that, in order to maintain consistency between the length of sentence under the former framework and the new, the judge imposing a fixed term of twelve months or more for an offence committed after 4 April 2005 should consider reducing the overall length of sentence which would have been imposed under the former provisions by about 15%. 16. We accept the analysis that sentences under the new provisions are to be regarded as more onerous than previously. Accordingly it follows that no discount was required to be made to reflect the fact that sentencing was under the pre-2003 Act regime. Moreover, we point out that under the old regime the appellant is eligible for discretionary release at the halfway period of his sentence, and indeed that had he been sentenced under the new provisions the judge would have had to have given very serious consideration to imposing a sentence of imprisonment for public protection. 17. That being so, the argument advanced must fail, as must this appeal which is dismissed. _____________________

2007_04_02-1060.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/941/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/941

e2e426c64fc7d4bb9795c48bac10e6e4d5864f23bc04133a389fc1bc8160f420

[2017] EWCA Crim 2383

EWCA_Crim_2383

crown_court

Neutral Citation Number [2017] EWCA 2383 (Crim) No: 201701540/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 8 September 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE HOLGATE SIR KENNETH PARKER - - - - - - - - - - - - - - - - R E G I N A v ARRAN CAVAGNUOLO - - - - - - - - - - - - - - - - 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:

Neutral Citation Number [2017] EWCA 2383 (Crim) No: 201701540/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 8 September 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE HOLGATE SIR KENNETH PARKER - - - - - - - - - - - - - - - - R E G I N A v ARRAN CAVAGNUOLO - - - - - - - - - - - - - - - - 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 G Hepburne-Scott appeared on behalf of the Appellant Mr R Merz appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE SIMON: 1. On 9th March 2017 in the Crown Court at Lewes before His Honour Judge Gold QC and a jury, the appellant was convicted in his absence of a single count of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861 and sentenced to a term of imprisonment. He appeals by his counsel against conviction under an implied authority with the leave of the single judge. 2. On 6th April 2015 there was an incident in a Brighton nightclub during which the victim, Ian Pointer was struck on the head by a tall man he had noticed earlier in the evening. He did not know this man and was at a loss to explain why the man had struck him. He sustained a two-inch cut to his head and believed he had been struck with a square glass object. He subsequently identified the appellant as the man who had struck him. The friends he had been with failed to identify the appellant as the assailant. 3. CCTV images were recovered which showed a tall man grappling with security staff before escaping. This man could be seen wearing a watch which was missing in later images. A Rolex watch was recovered from the scene by police on which the appellant's DNA was present. He made no comment in interview on 13th May 2015 and he did not attend his trial. 4. The prosecution case was that the appellant was the victim's attacker. It relied on Mr Pointer's positive identification, together with the presence of the appellant's DNA on the watch. The CCTV was also relied upon in relation to the presence of the watch on the appellant's wrist. The prosecution further relied on the appellant's bad character - two convictions for offences of violence. No evidence was called by the defence. 5. The issue for the jury was whether they could be sure that the appellant was the man who struck the blow to Mr Pointer. 6. Mr Pointer told the jury that he was on a night out with two friends, Craig Fryer and Greg king. He had noticed a group of two men and two women standing close to them at the bar. One of the men was very tall, of Mediterranean appearance, in his mid-thirties and smartly dressed. There was no issue between them and no words were exchanged, but some time later he felt a blow to his head. The blow had been delivered by the smartly-dressed man. He fell to the floor and did not remember much thereafter. He had consumed four to five bottles of beer but was not affected by drink. One of the women in the group had come over and apologised. He had seen an item in the man's hand as he delivered the blow, something square and made of glass. He had never seen the man before and he reiterated that the man was noticeable because of his height. 7. On 22nd May he had attended a video identification procedure and had positively identified the appellant as his assailant. In cross-examination he accepted that he did not know the man and had no cause to speak to him. He had seen the man for a few seconds but was 95 per cent sure of his identification. 8. Craig Fryer gave a similar description of the tall man. At one stage he had seen this man striking a form of karate pose which had seemed strange. Later, from the corner of his eye, he saw the man make an over-arm motion and Mr Pointer "go down". He subsequently saw something on the floor which was possibly a candle holder and which he gave to the police. The tall man went to the exit and was grabbed by a doorman but got away. The whole incident had taken 15 to 30 seconds. In cross-examination he said he might have asked the man where his shoes had come from, although he had not recalled any reaction to this. In hindsight he thought it might have caused difficulty. He had not been 100% sure of the identification procedure and had been unable to gauge a height from the photographs. As he was not 100% sure he was not prepared to make an identification. 9. Greg King gave a similar description of the tall man. He said this man appeared to be showing off and this made him feel uneasy. He had not seen the incident involving Mr Pointer but saw a man grappling with bouncers. The man had thrown them off and ran out. In cross-examination he said they had been to a number of pubs. He agreed that he had not identified the appellant at the identification procedure. 10. DC Grimes confirmed that a Rolex watch had been seized. He also confirmed that the appellant gave a no comment interview on 13th May. He had previous convictions for inflicting grievous bodily harm from 2010 and assault occasioning actual bodily harm in 2012. There was evidence before the jury that the appellant's DNA was found on the Rolex watch. That link had been established on 28th May 2015, some days after the interview, and the appellant had not been asked about it. 11. The defence statement was to the effect that he had sold the watch earlier but as Mr Hepburne-Scott points out, this could not be advanced at the trial. 12. Mr Hepburne-Scott said that he might have been in a position to prepare a short prepared statement dealing with this. However, it is fair to point out that the appellant was asked in interview about the watch and did not say he had sold it three weeks before, as the defence statement suggested. Indeed, as we have pointed out, he did not say anything in interview. CCTV images showed the assailant wearing a watch before the incident and the watch missing after it. 13. We turn then to the first ground which relates to the ruling that the appellant be tried in his absence. On 7th March 2017, the day before the date fixed for trial, the prosecution applied that the appellant be tried in his absence in circumstances where he had not been in contact with the police pursuant to his bail conditions since November 2016. The Crown submitted that he had been warned at the plea and case management hearing that he might be tried in his absence if he failed to attend for trial and he had been notified that the case was a fixture for the week beginning 6th March. In these circumstances, submitted the prosecution, he should be tried in his absence. Mr Merz outlined the evidence against the applicant of bad character and identification, as well as the fact that one witness had already been lost as he had gone to South Africa without leaving contact details, there having been an unsuccessful application to adduce his evidence under section 116 of the Criminal Justice Act 2003 . 14. Prosecuting counsel referred to the cases of Haywood in the Court of Appeal and Jones in the House of Lords, to which we will come later in this judgment. Defence counsel had indicated that he felt able to represent the appellant on the instructions he had. The right to be present could be waived by the accused in circumstances that included voluntarily absenting himself when he knew where and when his trial was to take place. The appellant had a bail condition of residents at his parents' address but they did not know where he was. It was submitted that a trial judge had a discretion as to whether a trial should continue in the absence of the accused, although the discretion had to be exercised with great care. It was recognised that only in a rare and exceptional case should it be exercised in favour of a trial taking place, particularly where the accused was unrepresented. Fairness was the primary consideration but fairness to the prosecution also had to be taken into account. The case was an old one and one witness had already been lost. The remaining witnesses were showing signs of disquiet at being constantly warned to attend. The appellant had absented himself from the trial and it was argued in doing so he had waived his right to be present. It was not known whether if the matter were adjourned the appellant would ever attend. The police had been looking for him since November. It was not known how long any adjournment might be. As to whether he wished to be represented, it was assumed that he wanted to be represented. The defence would be able to challenge the correctness of the identification but it was accepted it would not be able to put forward an alibi that had been raised in the defence statement. The prosecution acknowledged that there was also a difficulty in relation to the watch, as he had given no explanation for it. In his defence statement he said he sold it about three weeks before the incident, but the defence would not be able to put that in evidence before the jury. The Crown recognised that the defence would be at a disadvantage in not being able to give this account. The jury could be properly directed to avoid improper conclusions being drawn from his absence. 15. Having regard to all these factors, the Crown contended that it was right for the trial to take place in the appellant's absence. We note that Mr Merz's submissions followed closely the criteria established in Haywood and Jones and the points he made were both in favour of the application and against. 16. Mr Hepburne-Scott, who appeared for the defence, conceded that the appellant was aware of the trial date. However he pointed out that in was only in a rare and exceptional case that a trial should proceed in the absence of a defendant. The defence faced evidential difficulties and there were aspects of the case in respect of which no evidence could be put before the jury. This placed the appellant at a fundamental disadvantage. His "no comment" answers in interview was another feature which placed him at a disadvantage. The applications in relation to hearsay and bad character also raised difficulties for the defence. Counsel only had basic instructions and would be unable to call alibi evidence, although it was recognised that alibi had not been raised in interview. 17. The importance of a trial being held within a reasonable time of the alleged offence and the issue of delay ought not to count against him as the delay had been caused by the court; and although it was his fault that he had not attended the hearing of the case had been delayed through no fault of his. 18. Having heard these submissions, the judge ruled that the trial should proceed in the appellant's absence. He was satisfied that the appellant was aware that the trial was to take place and had absented himself in breach of his bail conditions. Having considered the criteria in Jones and the submission on each side, the judge expressed himself quite satisfied that it was a proper case to be tried in the appellant's absence. 19. This ruling gives rise to the first ground of appeal, although Mr Hepburne-Scott stresses that the grounds are cumulative and must be taken both individually and together. He submits that the judge erred in allowing the case to proceed in the appellant's absence in circumstances where he was placed at a significant disadvantage if the case went ahead. The relevant circumstances being first his having given a no comment interview, and second, his not having had an opportunity to comment on the DNA evidence. 20. For the Crown, Mr Merz submits that the judge was referred to and applied the criteria established by the cases of Haywood and Jones . It was a matter for his discretion and he exercised his discretion appropriately. In particular the appellant had chosen not to respond to questions relating to the evidence against him. He was entitled to do so, but he was warned that it might have consequences if he later mentioned something that he could have mentioned in interview. He had not been asked about the DNA evidence because it had not been available at the time. 21. He was warned at the plea and case management hearing that if he did not attend he might be tried in his absence. In November 2016 he had stopped reporting to police and thereafter his whereabouts was unknown. At this time he was fully aware of the case against him and absented himself. It was his voluntary decision not to respond to questions in interview, to attend court or to give evidence. There was no reason to think he might attend at any future date if the trial were adjourned. The prosecution had already lost a witness who had identified the appellant at an identification procedure. He had left the country without leaving his contact details. The remaining witnesses were expressing discontent at the delay. Whilst no detailed reasons were given by the judge it could properly be inferred that having addressed the relevant principles he had found that it was in the interests of justice to have a trial in the appellant's absence. 22. The principles to be derived from Haywood [2001] QB 862 and Jones [2003] 1 AC 1 , are conveniently summarised in Blackstones Criminal Practice 2017, D15.86-87. So far as material to the present appeal, they can be summarised as follows. (a) A defendant has a right to be present at his trial and be legally represented. (b) Such rights can be waived separately or together, wholly or in part, by the defendant. They may be waived if knowing or having the means of knowledge as to when and where his trial is to take place he deliberately and voluntarily absents himself. (c) The trial judge has a discretion as to whether the trial should take place in the absence of a defendant. (d) That discretion must be exercised with great care and it is only in rare and exceptional cases that it could be exercised in favour of a trial taking place, particularly if the defendant is unrepresented. (e) In exercising that discretion fairness to the defence is of prime importance. But fairness to the prosecution must be taken into account. The judge should have regard to all the circumstances of the case, including in particular, in the present case: (1) the circumstances in which the defendant absents himself, such as whether his behaviour is deliberate, voluntary and such that he plainly waived his right to appear; (2) whether an adjournment might result in him attending his trial; (3) whether, although absent, he can be taken to wish to be legally represented; (4) if so the extent to which the legal representative is able to put forward a defence; (5) the extent of the disadvantage to the defendant in not being able to give his account, having regard to the nature of the evidence against him; (6) the general public interest and the particular interest of alleged victims and witnesses that a trial take place within a reasonable time of the events to which it relates; (7) the effective delay on the memory of witnesses. (f) If the judge decides that a trial should take place he must ensure that the trial is as fair as the circumstances permit. He or she must in particular take reasonable steps both during the evidence and in the summing-up to expose any weaknesses in the prosecution case and make such points on behalf of the defendant as the evidence permits. In summing-up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case. 23. The fact that these factors may point to different conclusions, for example what we have characterised as principle e (5) on the one hand and e (6) on the other, emphasises that the judge is necessarily exercising a discretion, weighing up the factors in favour and against a trial in the defendant's absence, as is made clear from principle c. Furthermore, it is clear that proceeding in the absence of an entirely unrepresented defendant is plainly less desirable than proceeding where the defendant is represented and has provided instructions. Equally the fact that the defendant has had an opportunity of providing answers to questions in interview, will militate in favour of a trial notwithstanding his absence. 24. It is unfortunate that the judge confined his reasoning to four lines of transcript. On the other hand, Mr Metz had set out in detail points both in favour and against an adjournment by reference to the Haywood and Jones principles; and it is clear that the judge must have accepted the prosecution's submissions and regarded the defence submissions as of insufficient weight to weigh the balance against those points. The appellant had plainly waived his right to attend his trial. He knew when the trial was due to take place. He absented himself and in doing so breached his bail conditions. He is still at large. This was not a case in which a short adjournment would have resulted in him attending his trial. It is therefore clear now, if not clear then, that the consequences of an adjournment would be no trial or a trial involving delays to the grave prejudice of the prosecution and the witnesses. He was represented by competent counsel who has addressed us today shortly but effectively. Counsel was able to put forward those points at trial which could properly be put forward in his defence. There were difficulties caused by the no comment answers to questions put in interview but those difficulties would not have evaporated if he had attended his trial. 25. As the single judge observed, the strongest point in favour of the appeal is the fact that the prosecution relied on DNA evidence which had not been available when the appellant was interviewed, so that the significance of the evidence had not been addressed in interview and could not be addressed by his evidence at trial. However, as we have noted, he was specifically asked about the watch and gave no comment answers. He gave an explanation for the DNA findings in his defence statement but it was not something which could be put before the jury on his behalf unless he gave evidence. However, as we have noted, he was specifically asked about the watch and gave no comment answers. Furthermore, he was asked what he would say if his DNA was found on the watch; and his response was ‘no comment’. 26. Despite this point we are not persuaded that it was unfair for the trial to proceed in the appellant's absence. A test of rarity and exceptionality is not easy to apply in an individual case but it provides a salutary warning against the development of any habitual practice. On the present facts we are satisfied that the judge came to a decision that was open to him in the circumstances of the case and accordingly we reject ground 1. We would add that it is hardly in the overall interests of justice if a defendant having given no comment answers in interview was able to rely on this as the foundation of an argument he should not be tried in his absence. 27. As we have noted, only Mr Pointer positively identified the applicant as his assailant. It is this fact that underlies the complaint in ground 2. When the judge came to the identification evidence he gave an appropriate direction on how the jury should approach his identification (see Turnbull [1977] QB 224 ) about which no complaint is or could be made. It is what he said after this that gives rise to ground 2. 28. At 7H he said this: "Please don't approach the case on the basis that because only one out of three witnesses picked him out on the identification parade that you only have a one third identification. That obviously would not be a sensible approach. I am sure you will readily understand that when people witness a crime they may get differing views of the person alleged to have committed the offence. They may have differences in recollection. There may be different periods of time between the incident and the identification parade and they may simply just not be as good at retaining the facial features of someone as another witness so the fact that two witnesses didn't pick him out does not assist the defence, it is entirely fact neutral. It does not mean that Mr Pointer's evidence of this defendant being the assailant and picking him out on the parade is more or less likely to be right." 29. Mr Hepburne-Scott submits that this passage unfairly minimised a point that the defence was entitled to make; namely, that two out of the three eyewitnesses had failed to identify the appellant and the one who did had said he was only 95 per cent sure it was him. 30. We accept that this passage might have been understood to lessen the defence point that two out of the three eye-witnesses had failed to identify the appellant as the assailant; but we believe the point that the judge was making was that the failure of Mr Fryer and Mr King to identify the appellant did not undermine the identification of Mr Pointer who was the person most directly affected by the assault. When he summarised their evidence he made the point that they had not identified the appellant and, in the case of Mr Fryer, gave the reasons for it. No doubt the point was also made in the defence closing speech to the jury. We would accept that the passage from the summing-up might have been expressed more felicitously but it was not unfair and it did not in our view amount to a material direction such as to render the conviction unsafe, nor did it constitute an infraction of principle (f) to be derived from Haywood and Jones . 31. We turn then to the final point which arises from the single judge's observations when giving leave on grounds 1 and 2, that the summing-up on the appellant's bad character was "unusual". It is unnecessary to recite the relevant passages in the summing-up (page 8H to 9G). The passage referred to the appellant's previous convictions as "background". In our view that was not a proper approach to the direction on bad character. In the context of the present case the relevance of his previous convictions for violence was his propensity to commit acts of violence and there was no good reason not to use the word "propensity". A proper direction on bad character should cover three material points: (1) A clear warning against placing undue reliance on the previous convictions; (2) Emphasising that evidence of bad character cannot (a) be used to bolster a weak case, or (b) prejudice the jury against him; and (3) Directing the jury that they should not infer guilt from the existence of conviction. Unfortunately, and it is unclear why, the judge did not avail himself of the guidance in the Crown Court Compendium on bad character. If he had done so he would have avoided what we regard as a single omission. Although diffuse, the direction covered all these points other than point 2 (b). Nevertheless, in the circumstances, and read as a whole, we are satisfied that although there was a misdirection it was not a material misdirection, nor did it constitute a breach of principle (f) to be deprived from Haywood and Jones . 32. In conclusion, neither individually nor collectively do these three points give rise to a doubt about the safety of the conviction, and for these reasons we dismiss the appeal.

2017_09_08-4060.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2383/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2383

e84cb9b1022ae17016c9857a021b296e25081fcbbbf2e4460332fcf09ead16c2

[2018] EWCA Crim 185

EWCA_Crim_185

crown_court

No. 2017/05107/A1, 2017/05149/A1, 2017/05110/A1 & 2017/05108/A1 Neutral Citation Number: [2018] EWCA Crim 185 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday 24 th January 2018 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Burnett of Maldon ) MR JUSTICE WARBY and MR JUSTICE DOVE - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCES UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A

No. 2017/05107/A1, 2017/05149/A1, 2017/05110/A1 & 2017/05108/A1 Neutral Citation Number: [2018] EWCA Crim 185 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday 24 th January 2018 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Burnett of Maldon ) MR JUSTICE WARBY and MR JUSTICE DOVE - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCES UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - MORGAN CLARKE DECLAN ANDREWS ANTON CRAIG THOMPSON - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A Telephone No: 020 404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr P Jarvis appeared on behalf of the Attorney General Mr M Brady appeared on behalf of the Offender Morgan Clarke Miss S Duckworth appeared on behalf of the Offender Declan Andrews Mr D James appeared on behalf of the Offender Anton Craig Thompson - - - - - - - - - - - - - - - - - - - - J U D G M E N T Wednesday 24 th January 2018 THE LORD CHIEF JUSTICE: 1. On 23 rd October 2017, in the Crown Court at Manchester, the offenders, Clarke, Thompson and Andrews, were sentenced by Her Honour Judge Goddard QC for a range of serious offences, including kidnapping. 2. This is an application by Her Majesty's Attorney General, pursuant to section 36 of the Criminal Justice Act 1988 , for leave to refer their sentences as unduly lenient. There is an also an application for leave to appeal against sentence made by Andrews on the basis that the sentence imposed was manifestly excessive. 3. Before turning to the detail of the offending, it is important to note the ages of the offenders. The offending occurred in early 2017. Clarke was born on 11 th December 1998 and so was just 18 at the time of the offending. Thompson was born on 26 th August 1997 and so was 19. Andrews was born on 3 rd December 1999 and so was 17. 4. In paragraph 40 of the Final Reference the submission was advanced that only Andrews should have received a discount by virtue of his youth. He was the only one under the age of 18 at the time of the offending. In support of his application for leave to appeal against sentence, Andrews made a similar point. Miss Duckworth refers to the Sentencing Council guideline for the sentencing of children and young people. The guideline undoubtedly applied to Andrews. She submits that his sentence should have been reduced by half or more, pursuant to the principle articulated in paragraph 6.4(6) of that guideline, as compared with the other offenders. In the course of his oral submissions Mr Jarvis, on behalf of the Attorney General, accepted that there was no stark cut-off point that applies in sentencing an offender aged 18. Miss Duckworth accepted the same proposition. 5. Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters [2005] EWCA Crim 605 , [2005] 2 Cr App R(S) 101 is an example of its application: See paras [10]-[12]. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18 th birthdays. Experience of life reflected in scientific research (e.g. The Age of Adolescence: thelancet.com/child-adolescent; 17 January 2018) is that young people continue to mature, albeit at different rates, for some time beyond their 18 th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18 th birthday. The ages of these offenders illustrate the point. The youth and immaturity of Clarke and Thompson were appropriate factors for the judge to take into account in these cases event though both were over 18 when they offended. It is apparent that the Judge did so, not only in the case of Andrews. 6. The offenders fell to be sentenced for the following offences: All three offenders: (a) Kidnap, the particulars of which were that between 20 th January 2017 and 23 rd January 2017 all three offenders unlawfully and by force or fraud took or carried away Carl Cain against his will. (b) Blackmail, contrary to section 21(1) of the Theft Act 1968 , the particulars of which were that between the same dates all three offenders, with a view to gain for themselves or another, made an unwarranted demand of monies from Connor Cain with menaces. Clarke alone: (c) Attempted robbery, contrary to section 1(1) of the Criminal Attempts Act 1981 , the particulars of which were that on 19 th May 2017 Clarke attempted to rob Ashley Bird. (d) Having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1954, the particulars of which were that on 19 th May 2017, without lawful authority or reasonable excuse, Clarke had with him in a public place an offensive weapon, namely a hammer. Thompson and Andrews together: (e) Doing an act tending and intended to pervert of public justice, the particulars of which were that on 4 th March 2017 they entered the home address of the Cain family and made a series of threats towards the family which had a tendency to pervert the course of public justice in that they intended the Cain family to retract their allegations. (f) Theft, contrary to section 1(1) of the Theft Act 1968 , the particulars of which were that on 4 th March 2017 Thompson and Andrews stole a Transition Mountain Bicycle and a Cube Mountain Bicycle belonging to Connor Cain. Thompson alone: (g) Having an offensive weapon, contrary to section 1 of the Prevention of Crime Act 1953 , the particulars of which were that on 4 th March 2017, without lawful authority or reasonable excuse, he had with him in a public place offensive weapons, namely a hammer and a machete. (h) A number of summary only driving matters and handling stolen goods were committed for sentence. Andrews alone: (i) Having an offensive weapon, contrary to section 1 of the Prevention of Crime Act 1953 , the particulars of which were that on 4 th March 2017, without lawful authority or reasonable excuse, had with him in a public place offensive weapons, namely a hammer and a machete. 7. In respect of those offences the offenders were sentenced as follows: Offence Clarke Thompson Andrews Kidnap 4 years 8 months 4 years 8 months 3 years 1 month Blackmail 3 years 4 months (concurrent) 3 years 4 months (concurrent) 2 years 5 months (concurrent) Attempted robbery 2 years 4 months (consecutive) _ _ Having an offensive weapon 12 months (concurrent) _ _ Perverting the course of justice _ 2 years 4 months (consecutive) 2 years 5 months (consecutive) Theft _ NSP NSP Having an offensive weapon _ 12 months (concurrent) _ Handling stolen goods _ 4 months (concurrent) _ Summary driving offences _ NSP 6 penalty points _ Having an offensive weapon _ _ NSP Total 7 years’ detention 7 years’ detention 5 years 6 months’ detention 8. Thompson was also in breach of a suspended term of detention. The judge activated four months of that sentence and ordered it to run concurrently. A little later, at a "slip rule" hearing, the judge also imposed an appropriate disqualification and other sentences relating to the driving offences. 9. Given their ages at the time of the sentencing exercise, Clarke and Thomson received sentences of detention in a young offender institution. Andrews was sentenced to detention, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 . The Facts: Kidnap and Blackmail 10. We deal first with the kidnap and blackmail counts. On 21 st January 2017, acting together, all three offenders kidnapped a 16 year old boy named Carl Cain. They did so because they were aware that his brother Connor had received a few thousand pounds in compensation following a road traffic accident. They intercepted Carl outside a food takeaway in the early evening and told him to get his brother to come to see them. Connor was 18 at the time. Carl said that was not possible because his mobile phone had run out of credit. Thompson ordered him to accompany them. They walked towards his home address. Carl was pushing a bicycle. He tried to run off, but the offenders stopped him. They threatened him with violence were he to try to run off again. He tried to escape by jumping on his bicycle, but the offenders dragged him and pulled him from it. He was then punched and kicked. 11. Thompson and Andrews dragged Carl along the street. He was taken to a wooded area near the estate in Manchester where he lived. From there, one of the offenders phoned Connor Cain and gave Carl the telephone so that he could explain that he had been kidnapped. The offenders misidentified themselves as two men well known on the estate for being particularly tough. That caused the Cain family to panic. The offenders told Connor that a ransom of £2,000 should be paid to secure Carl's release. They also spoke to Carl's mother who genuinely feared that her son would be harmed. 12. The family immediately contacted the police. They attended quickly and were present when the offenders next telephoned. Thompson said that Carl would be stabbed and killed if their demands were not met. He, in fact, put a knife to Carl's throat. Mrs Cain explained that the most she could find was £1400. The offenders indicated that that would be sufficient. They gave instructions about where the money should be taken. Carl's father left with the money and followed the directions that the offenders had given. 13. By that time, the offenders were worried that the Cain family might have alerted the police. As a result, they moved Carl to a different spot in woods further away from his home and then kept him there all night. They told him that if he were to say anything to the police, they would rape him and kill his parents. 14. At first light the police launched a manhunt. A police helicopter was deployed. When the offenders heard the helicopter, they disposed of the knife and machete that they had with them and once more moved Carl roughly back to where they had started the evening before in the woods near to his home. They told him to take off his clothes. He removed his top. They then tied his feet and hands with his shoelaces and left him. 15. Happily, and without difficulty, Carl was able to untie the shoelaces around his ankles. He ran to the nearby house of a friend, from where he was taken home. The ordeal had lasted in total about twelve hours. 16. The impact of the events we have described were such that the family felt unsafe on the estate in Manchester and temporarily removed themselves to Scotland. Perverting the course of justice and having offensive weapons 17. By 4 th March 2017, the Cain family had returned from Scotland. On that date Carl was at home with his mother and father when two figures were spotted in their back garden. They were Thompson and Andrews. Carl's father ran towards the phone to call the police, but before he could do so he heard the sound of the kitchen window being smashed. The family ran upstairs. Both Carl and his mother were hysterical. They hid, whilst Mr Cain picked up a baseball bat and waited at the top of the stairs. Thompson was wearing an open ski mask and Andrews had his hood up. Thompson had a machete in one hand and a hammer in the other. He made a demand for money, which Carl's father rebuffed. Thompson started to ascend the stairs whilst Andrews remained at the bottom. That provided Mr Caine with an opportunity to swing at Thompson with the baseball bat. He made contact and that forced Thompson down the stairs. Both Thompson and Andrews went into the living room of the house, where they caused some damage. They then left and stole the two bicycles referred to in the theft count. 18. They were both originally charged with aggravated burglary to reflect the event which we have set out. It is clear from the transcript of the proceedings that the Crown was content to accept guilty pleas to the alternative counts which were added to the indictment, not least because there were obvious difficulties in proving the necessary intent – that is to say, an intent to steal, cause serious injury or rape – necessary to secure a conviction for aggravated burglary. The offenders accepted their aim was to discourage the family from giving evidence. Handling stolen goods and the summary driving matters 19. Overnight on 4 th /5 th May 2017 a Yamaha motor cycle, worth about £1400, was stolen. On 6 th May it was spotted by an off-duty police officer being ridden by Thompson. Attempted robbery and having an offensive weapon 20. On 19 th May 2017, at about 2.30am, a Mr Arem and his friend Mr Bird were driving along in a Mercedes car, eating pizza. They saw Clarke and another man running towards them shouting abuse. Mr Arem had to swerve to avoid them. He then drove home. He got out of the vehicle and left Mr Bird inside. Suddenly, both front doors of the car were opened. The other man who had been with Clarke appeared at the driver's door with an axe in his hand, and Clarke appeared on the other side with a hammer. Clarke indicated that they were after Mr Arem and it had nothing to do with Mr Bird. Nonetheless, Clarke aimed a number of blows at Mr Bird with the hammer, but fortunately Mr Bird was able to deflect them all . 21. The second man then got into the Mercedes and tried to start it. At the same time, Clarke attempted to get in through a passenger door. Mr Arem saw what was happening and ran from the house. Clarke started to swing the hammer at him. Both Clarke and the second man dropped their weapons and ran off. They stole a mobile phone which had been in the car. Discussion 22. The offenders pleaded guilty to all the offences in circumstances which entitled them to a full discount of one-third. 23. Andrews had no previous convictions, cautions or reprimands. 24. The same was not true of the other two offenders. Clarke had fourteen previous convictions resulting from five court appearances. These included convictions for offences of possessing cannabis, shoplifting, having a bladed article in a public place, possessing an offensive weapon, criminal damage and battery. On 9 th December 2016, Clarke had been made the subject of a youth rehabilitation order, with a number of requirements. That order lasted until 8 th December 2017. It followed that all of the offences with which we are concerned were committed during the currency of that order. 25. Thompson had 42 convictions from 28 previous appearances. They included convictions for breaching the terms of an Anti-Social Behaviour Order, burglary, theft, affray, malicious wounding, battery, possessing offensive weapons, and possession of Class A and B drugs. On 5 th January 2017, Thompson had received a community order for the offence of shoplifting. On 21 st February 2017, that sentence was varied to a four week period of detention, suspended for twelve months. All the offences to which Thompson pleaded guilty were committed during the period of the community order or suspended sentence. 26. The offences had a profound impact upon the Cain family, as one would expect. There are deeply affecting victim personal statements from Carl, his brother Connor and from their parents which lay bare the nightmare they had endured. Mrs Cain has been treated for anxiety and depression, and Carl has suffered adverse psychological consequences. 27. The mitigation advanced on behalf of Clarke focused on his youth (we remind ourselves that he was only a month beyond his 18 th birthday at the time of the kidnapping offence) and his immaturity, which was referred to in the pre-sentence report. 28. So far as Thompson is concerned, the points advanced in mitigation, apart from his relative youth, may be summarised as follows. He was brought up in very troubled circumstances with almost no parental boundaries. He was a wild child. He had started to take drugs when he was aged only 11 or 12. He progressed from cannabis to harder drugs. His father was largely absent, at least from his immediate day-to-day care, but kept in touch throughout his childhood. Four years prior to the offending, Thompson's father committed suicide. Thompson was aged only 15 at that time. His mother had long-standing and prominent mental health problems. In consequence, it was his sister who provided the familial mainstay. His antecedent record shows that he was effectively left to run amuck in his formative years. However, since 2013 the pattern of offending had been entirely different, until the offences with which we are concerned were committed. His offending was limited to minor shoplifting (at least minor as compared with what went before and what followed). 29. The reason that Thompson appeared to be turning a corner was that he had formed a serious relationship with a young woman. She placed before the sentencing judge a detailed written explanation of all of the difficulties with which Thompson had battled during his childhood and adolescent years. Then a few months before this offending, Thompson's sister committed suicide. In short, he was completely overwhelmed by the events which had occurred and once more went off the rails. Thompson himself attempted suicide and was hospitalised. He was then referred to psychiatric services. He suffers from epilepsy and depression. Thompson has demonstrated real remorse as a result of this offending, as have the other two offenders. 30. So far as Andrews is concerned, he too had been brought up in deeply dysfunctional and tragic circumstances. His medical records show that he was out of control as a young boy. The first medical intervention occurred when he was only 6 years old. He was a problem pupil and was excluded from school from time to time. There has been a recent diagnosis of adult ADHD. He was brought up by his mother who herself was troubled and seriously ill. 31. In April 2016 (when he was 16, some nine months before the offending with which we are concerned), Andrews' mother committed suicide, having been in pain for years. He reacted badly and received a provisional diagnosis of post-traumatic stress disorder. He suffered from depression, anxiety, stress and insomnia, for which medication was provided. We note, additionally, that he was himself the victim of a very serious assault in 2015. He has been assessed as being at risk of suicide. 32. On behalf of the Attorney General, Mr Jarvis submits that the sentences were unduly lenient on the following bases: (1) The sentence for kidnap should have been much higher for all the offenders, having regard to recent authority. He refers in particular to R v Warren [2016] EWCA Crim 1344 ; Attorney General's Reference No 102 and 103 of 2014 [2014] EWCA Crim 2922 ; and Attorney General's Reference No 92 of 2014 [2014] EWCA Crim 2713 . The overarching submission advanced by Mr Jarvis in this regard is that the starting point for the kidnapping offence alone should have been in double figures, before affording reduction for youth, other mitigation and for the guilty pleas. (2) Clarke and Thompson should have received significantly higher sentences than Andrews for the kidnap offence, because they were already subject to court orders. (3) Clarke's separate conviction for attempted robbery should have attracted a longer, significant consecutive sentence. (4) The separate conviction of Thompson and Andrews for perverting the course of justice in the circumstances we have described should have resulted in a significant consecutive sentence – much longer than that in fact imposed by the judge. (5) Mr Jarvis submits that there are parallels, given the circumstances between that offending and aggravated burglary. Accordingly, the guideline on aggravated burglary should have been more firmly in the mind of the judge. His submission is that the events that occurred on that occasion should themselves have attracted a starting point of ten years or more. (6) Whilst totality was properly taken into account by the judge, significantly higher sentences were warranted. (7) Although Andrews had the benefit of the youth guideline, and whilst the youth of the other two offenders was a factor that the judge could properly take into account, the circumstances of the offending in these cases was such that only a very modest reduction in what otherwise would be an appropriate sentence for a mature adult should have been allowed. 33. On behalf of the offenders, it is submitted that the judge carefully evaluated all of the relevant factors. Indeed, it is not suggested on behalf of the Attorney General that the judge failed to take account of important factors, or that she took account of factors which should have been left out of account. In the round, it is submitted on behalf of the offenders that the sentences certainly cannot be stigmatised as unduly lenient – that is to say, outside the ranges of sentence appropriate, given the circumstances of the offending and these offenders. Additionally, each of the offenders, through their counsel, reminds us of the mitigating features that apply in his case. Moreover, Miss Duckworth, on behalf of Andrews, submits that his sentence should have been significantly lower than that imposed on either of his co-accused to reflect the fact that he was 17, rather than 18 or 19 years of age. In oral argument she developed what might be described as a disparity argument. She also reminded us that Andrews had been subject to a curfew, albeit one that did not qualify for the statutory reduction in his sentence. She submits that it is, nonetheless, a factor which should bear on the totality of sentence in his case. 34. The sentencing hearing commenced on Friday 20 th October and lasted two and three-quarter hours. During that hearing, with the assistance of counsel, the judge explored carefully all of the circumstances surrounding this offending, together with the mitigation available. There was a significant amount of written material placed before the judge. It included pre-sentence reports, a very detailed psychological report on Andrews and a letter from Thompson, together with that from his girlfriend, to which we have already referred. The judge reflected on the relevant sentences over the weekend and sentenced the offenders on Monday afternoon. 35. The starting points implicit in the overall sentences imposed by the judge, before discount for the guilty pleas, but after taking account of all other mitigation, were as follows: Clarke, ten and a half years' detention; Thompson, ten and a half years' detention; and Andrews, eight years and three months' detention. Although the judge did not indicate where she had started before taking account of mitigation, including youth and immaturity – and in Andrews' case the distinct guideline relating to young offenders – it is apparent that were these offenders mature adults, they would have received sentences which would have been very much longer. There was explicit reference to the guideline relating to young offenders in the course of argument before the judge. 36. The various cases to which Mr Jarvis has drawn our attention undoubtedly demonstrate that lengthy sentences will be imposed in cases of kidnapping, especially where aggravating features are present. There is no guideline for kidnapping. As was emphasised in the cited cases, the circumstances of such offending can be very varied. We accept that the additional offences committed by these offenders were in themselves serious. That said, we do not consider that close comparison with the facts in any of the three cases with the facts of the offences with which we are concerned would provide any useful assistance. 37. We have noted that Mr Jarvis submits that the offending which surrounded the offence of perverting the course of justice had similarities with aggravated burglary. So much flows from the fact that aggravated burglary was originally charged. We have referred already to the circumstances which led to the alternative counts being preferred. Mr Jarvis recognises that the judge, not only in the course of argument with counsel but also in the course of her sentencing remarks, herself drew the parallel with aggravated burglary. He submits that she should have explicitly taken account of and referred to the definitive guideline on aggravated burglary, albeit, as we remind ourselves, that it was not submitted to her by the prosecution at the time that she should do so. Mr Jarvis submits that section 125 of the Coroners and Justice Act 2009 required the judge to consider that guideline. Section 125(1) is in these terms: "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." Mr Jarvis submits that the aggravated burglary guideline was "relevant" to the offending because of the coincidence of at least many of the factual circumstances. 38. We do not accept the submission that in using the word "relevant" Parliament intended to impose upon a judge a statutory duty to have regard to any definitive guideline from the Sentencing Council which might be useful in helping to determine the appropriate sentence for an offence for which no guideline exists. Put differently, we do not consider that a judge has a duty to consider guidelines to help with range finding in a case for which no guideline exists. The word "relevant" in this context is to be read as referring to a guideline that applies to the offence or to the circumstances of the offender. By way of example, if a youth is to be sentenced for robbery and has pleaded guilty at any stage, then at least three guidelines will obviously be in play, perhaps together with others which deal with general matters. That said, the judge plainly had in mind that the offending shared many of the indicia of aggravated burglary, and she took that into account. 39. We do not accept the submission advanced on behalf of the Attorney General that the circumstances that underpin this case should lead to the conclusion that any notional reduction in the sentences to reflect the youth of Andrews, or the relative youth of both Clarke and Thompson, should have been minimal. Such a feature may be a potent factor in determining the eventual sentence. It is quite clear from the totality of the hearing and then the sentencing remarks that this experienced judge was sensitive to the questions of youth and immaturity. 40. The underlying question for us, when considering the application made on behalf of the Attorney General, is to determine whether the sentences imposed "fell outside the range of sentences which the judge, applying her mind to all relevant factors, could reasonably consider appropriate". That is how the matter was put by Lord Lane CJ in Attorney General's Reference No 4 of 1989 (1989) 11 Cr App R(S) 517, at 521. Whilst we recognise that a different judge may have imposed longer sentences in this case, given the youth of the offenders and the mitigation available to them, we do not consider that the sentences can be viewed as unduly lenient by reference to that test. 41. For these reasons we refuse leave. 42. Moreover, we consider that the sentence imposed on Andrews cannot be attacked on the ground that it is manifestly excessive. True it is that a different judge might have drawn a greater distinction between Andrews and the other two offenders. But we are unable to accept the submission that there is any objectionable disparity in this case. Furthermore, we do not consider that the point advanced by reference to the non-qualifying curfew carries Andrews anywhere in that argument. 43. For these reasons we refuse him leave to appeal against sentence.

2018_01_24-4151.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/185/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/185

35d56a30b2fd69fe10d5f112c937de4de26c9483013b2d6ffb6908713639556c

[2007] EWCA Crim 3206

EWCA_Crim_3206

crown_court

No: 200704633/A5 Neutral Citation Number: [2007] EWCA Crim 3206 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 7TH November 2007 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE KING HIS HONOUR JUDGE WARWICK MCKINNON (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DANNY FOWKES - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Lim

No: 200704633/A5 Neutral Citation Number: [2007] EWCA Crim 3206 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 7TH November 2007 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE KING HIS HONOUR JUDGE WARWICK MCKINNON (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DANNY FOWKES - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Reid appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE HALLETT: Daniel Fowkes is a 50 year old convicted rapist. He has 11 previous convictions for 19 offences including offences of causing grievous bodily harm and possession of weapons. The relevant convictions for present purposes are as follows: in April 1980, he was convicted of rape and sentenced to 3 years' imprisonment. On that occasion it is said that he gained entry to a woman's home on false pretences, strangled her to the point of suffocation and raped her. On 22nd October 1993, for two offences of unlawful sexual intercourse with a child, he was sentenced to 12 months' imprisonment. On 24th April 1998 he was convicted of a further offence of rape and sentenced to 8 years' imprisonment. 2. As a designated sex offender he was required to comply with the requirement to notify the police of his address within three days of release and to notify the police of any change of address. Mr Fowkes resents his convictions for rape and he resents the statutory requirements. This has led to his being reported for a number of breaches. 3. On his first release on licence from the 1998 conviction for rape, he failed to notify his address as required. On 4th December 2003 he was convicted of failing to notify his address and was fined £400. His licence was revoked and he was recalled to prison. On 31st December 2005 he was again released on licence. He was required to notify the police of his address by 2nd January 2006. On 3rd January 2006 (one day late) he registered an address in Clapham Road. This failure to register in time constituted offence No 1. When the address was checked in May 2006 it was found to be a derelict taxi rank. This was the subject of offence No 2. 4. On 8th June 2007 the appellant was arrested. He said he had moved to an address in Tulse Hill. Thus, during the substantial period from February 2006 to 8th June 2007 the appellant had failed to provide his address. This formed the subject matter of offence No 3. The appellant admitted the offences in interview. 5. When interviewed for the pre-sentence report, its author recorded the appellant as saying that as a result of his being released from prison with no fixed abode, he found it difficult to find accommodation. That was why he had missed the deadline of registering by one day. Thereafter, he said he felt pressurised because the police told him he had to have an address. He gave the address of the derelict taxi rank behind which there was a squat at which he had stayed for one night. Thereafter, he said he moved on a regular basis between squats and short-term accommodation. 6. In relation to the last offence, he admitted he had found settled accommodation but he did not regularise the situation with the police. He had taken legal advice and he was aware that there were serious implications consequent upon his failure to register and he wished to avoid what was an inevitable punishment. The author of the report went on to describe the appellant as a "manipulative" individual, who had a total disregard for the rights of the community to monitor him. It was said he did not accept his conviction and showed no remorse. He tended to minimise the seriousness of his failing to comply with the statutory requirements. There had been minimal compliance with probation supervision on licence and he had failed to engage in any sex offender treatment. There were concerns about his future behaviour, given his offences against extremely vulnerable or young females in the past and the use of violence in committing sexual acts. He was described as posing a high risk of harm to the public in relation to violent and or sexual offences. In particular, he poses a high risk of harm to women and young girls. 7. On 2nd July 2007, at the Camberwell Green Magistrates' Court the appellant pleaded guilty to the offences numbers 1-3. He was committed to the Crown Court for sentence. On 1st August 2007 Her Honour Judge Karu sentenced him as follows: offence 1, failing to register an address: 3 months' imprisonment; offence 2, providing a false address: 6 months' imprisonment ordered to run consecutively; offence 3: failing to register an address, 9 months' imprisonment, again ordered to run consecutively. This made a total sentence of 18 months' imprisonment. He appeals against that sentence by leave of the Single Judge, who queried the structure of the sentence. 8. Mr Reid, on behalf of the appellant placed particular reliance, as an example of the level of sentence appropriate to this type of offending, on a decision of this Court in R v Bowman [2006] 2 Cr App R(S) 40. In Bowman the appellant was sentenced to 6 months' imprisonment. He failed to register his address as he was required to do within three days. He gave as his explanation the fact that he was homeless. His sentence was reduced by this Court to one of 2 months. 9. However, the judge below distinguished Bowman , observing that this appellant was not in the same position as the appellant, Bowman . This appellant was not a homeless man who had simply had no means of finding a home or address. She described him as someone who had deliberately and flagrantly avoided any notification procedures and avoided any form of the monitoring required by the law. 10. Mr Reid argued that the sentences were both wrong in principle and the total excessive. He argued that the three offences all arose from the same failure to register within three days of release from prison and, therefore, the three sentences should have been ordered to run concurrently and not consecutively. Further, he submitted that the sentences on offences 2 and 3 were excessive individually. He referred this Court to two further cases, as an illustration of decisions of this Court. In R v B [2005] 2 Cr App R(S) 65, 6 months' imprisonment, imposed on a man previously convicted of attempted rape who failed to notify the police of his address following his release from prison, was reduced to 3 months. In R v Clark [2003] 1 Cr App R (S) 2 , CA the appellant was convicted of attempting to abduct a child and impersonating a police officer. He was sentenced to 3 years' imprisonment. On his release he was seen in the company of young girls. A Sex Offender Order was made restricting his movement. He breached that order by living in premises where children under the age of 16 also lived. There was no suggestion that he had attempted to interfere with the children. His sentence of 3 years was reduced to one of 18 months. A 3 month sentence of imprisonment was ordered to run concurrently for failure to notify a change of address. 11. Much as we sympathise with the approach adopted by the judge below, We see considerable force in one limb of Mr Reid's submissions namely that the first two offences were in fact one incident. Arguably, it would have been sufficient to charge but one offence. As a matter of general principle the sentences imposed should, therefore, have been ordered to run concurrently. We can see no reason here to deviate from the general principle. Accordingly, we shall quash the order that they run consecutively and substitute for it an order that they be served concurrently. 12. However, that will be the extent of our intervention. We do not accept that the third offence was also part of the same incident. It was a separate and continuing offence, spread over a period of nearly 18 months. It merited a distinct and significant penalty. If ever there were an offender whom Parliament had in mind when it enacted these provisions, it was this appellant. He appears to be an unrepentant sexual predator and a danger to the community. The requirement that he register his address is a simple measure designed to offer some measure of protection to women and children whom he may encounter. It will offer no protection at all if he continually flouts the orders of the court. The appellant, whatever his own views of the statutory requirements and his convictions, must learn that he has to obey court orders. If he does not, Parliament has fixed a maximum penalty of 5 years for offences of this kind. Given the statutory maximum and the circumstances of these offences, we are not persuaded that the sentences on any of the offences or the total sentence imposed is in any way excessive. For those reasons, the appeal will be allowed to the extent indicated on count 2. The final total sentence is 15 months' imprisonment.

2007_11_07-1265.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3206/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3206

aa58dcb7489312440c3a2a141b2927b445efc868c42c637c57ce39c03b9d760a

[2009] EWCA Crim 1683

EWCA_Crim_1683

crown_court

Neutral Citation Number: [2009] EWCA Crim 1683 Case No: 2009/1257/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 7 July 2009 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE SIMON MR JUSTICE WILKIE - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 23 OF 2009 - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenogra

Neutral Citation Number: [2009] EWCA Crim 1683 Case No: 2009/1257/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 7 July 2009 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE SIMON MR JUSTICE WILKIE - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 23 OF 2009 - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss S Whitehouse appeared on behalf of the Attorney General Mr C Dunn appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE THOMAS: On 13th February 2009, Desmond Peter Merrion, a 40-year-old bespoke tailor, was sentenced to a total of three years' imprisonment by His Honour Judge Reddihough at the Crown Court at Great Grimsby for offences under the Firearms Act, each carrying statutory minimum sentences of five years. The Attorney General seeks leave to refer the sentence to this court under section 36 of the Criminal Justice Act 1988 (as amended) on grounds that it was unduly lenient, as there was no proper basis for the judge to find there were exceptional circumstances. We grant leave. 2. The offender had served in the army cadet force for a number of years. As we have said, by occupation he is a bespoke tailor. He had been married for some 23 years and has five children. Three are grown up, one is aged 14 and one is two. We shall return to those family circumstances in a moment. He participated in many activities of benefit to the community. His tailoring business prospered and took him all over the world. 3. He had an interest in guns. He had a firearms certificate for some 20 years. He was a member of a gun club. He lawfully had in his possession firearms and ammunition. Apart from certain matters when he was 13 years of age, he was of good character, and those matters are of course immaterial. 4. However, his attempt to import a pistol illegally from the United States in October 2007 in circumstances which it is necessary to set out changed his entire position and the lawful life that he had hitherto made. 5. The circumstances were these. On 19th October 2007 a firm of international carriers was asked to send a parcel to the offender's business address in Hull. The postage was insufficient. As there were no details of the sender on the parcel, it was opened by the carrier. Inside they found a barrel and handle of a pistol. They were parts of a Ruger mark 3 .22 calibre pistol. It is important to note that attempts had been made to disguise the barrel using candles in the package. The United States authorities traced the sender to a Mr George Rimby. He had been a customer of the offender's tailoring business. The United Kingdom authorities were informed by the Government of the United States. The offender was arrested on 21st May 2008. His home was searched. Several firearms and quantities of ammunition were found. A number of those were in his lawful possession, but three were not. The first was a Brocock Orion-6 self-contained pistol. Next there was a Remington self-loading shotgun. Third there was a BSA 410 shotgun which had been sawn down. There was also a firing pin mechanism and main spring for the Ruger pistol discovered in the parcel. Those were the missing parts. A quantity of ammunition was also found. 6. The offender was interviewed on the day of his arrest. He gave an account that was regrettably untruthful. He said Mr Rimby was a customer of his tailoring business and they had a mutual interest in firearms. After the offender's last visit to the United States he had left some cloth bunches with his customer and expected them to be returned in due course. He said a parcel had arrived containing a plastic Ruger box with scrap and magazines in it. He had no concerns the contents might be illegal. He stored the package and contacted the carriers to ask when the parcel containing his cloth might arrive. At that point he was informed that gun parts had been found in the second parcel which had been opened in the United States. 7. As regards the other illegal weapons that he held, he accepted that the Brocock pistol was not covered by his licence, but said he was not aware the law had changed. He said he had received the Remington shotgun from his father who wished him to dispose of it. He had placed it in his gun safe and had forgotten he had it. As regards the sawn-off shotgun, he said he had found it at the back of his shed when he had moved to his current address. He admitted he should have surrendered it. 8. On 1st July he asked to be interviewed again. On that occasion he did admit to the truth of what had happened in relation to the Ruger pistol. He said he had agreed with Mr Rimby to purchase the pistol in exchange for a hand-made waistcoat. It had been necessary to send the parcel in two parts so it would not be detected by the United States or United Kingdom authorities. He said he wanted the pistol for target practice and shooting at his club. He was interviewed again on 15th August and maintained the accounts given in relation to the other three firearms. 9. He pleaded guilty at the case management hearing to the specific offences, which it is not necessary to set out. It is evident from the background to which we have referred that there were strong mitigating factors relating to the offender and his plea. It was common ground also that he did not intend the guns for what are described as criminal purposes and had no connections with criminals, other than Mr Rimby who had plainly been engaged in this criminal enterprise. The judge sentenced him without a pre-sentence report. 10. The aggravating features were what is without doubt the deliberate and carefully planned importation of a pistol and the possession of two guns which he knew were held unlawfully. The particularly serious matter was the sawn-off shotgun. 11. The judge took the view that he was “just persuaded” that there were exceptional circumstances relating to the offence and the offender. He explained that these were his positive good character, the services to his country through the charitable and army activities, and his industrious life. He also considered as an exceptional circumstance the fact there was no question of seeking to use the weapons in a criminal way. 12. It is clear from the decision of this court in Rehman and Wood [2005] EWCA Crim. 2056 , [2006] 1 Cr.App.R (S) 77 , that the court must have at the forefront of its mind that Parliament has decided that deterrent sentences be passed to ensure that possession of guns is strictly controlled and guns are not brought into this country unlawfully. It is well known what a scourge guns are to any society and the courts must, in accordance with the will of Parliament, make sure that the policy of Parliament is carried out in the sentencing of offenders, even though in a particular case, apart from the minimum term, an offender might not merit a sentence of such severity. It is in circumstances such as those before the judge that the courts must be very, very careful to have regard to this policy. It is, we think, important to refer to one short passage in the judgment of Lord Woolf in Rehman , where he said: "So far as we can determine the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers." In referring to the exceptional circumstances, it is always important to bear in mind what Lord Bingham of Cornhill, CJ, said in R v Kelly [2000] QB, [1999] 2 Cr.App.R (S) 176: "To relieve the court of its duty to impose a life sentence under section 2(2), however, circumstances must not only be exceptional but such as, in the opinion of the court, justify it in not imposing a life sentence, and in forming that opinion the court must have regard to the purpose of Parliament in enacting the section as derived from the Act itself and the White Paper 'Protecting the Public' which preceded it." We have no doubt in this case that the learned judge was in error in treating this case as one amounting to exceptional circumstances. There were none. This was a case where the offender had deliberately attempted to bring a weapon into this country. It is, in our judgment, not a case where there is any doubt but that the conduct was deliberate, that his previous good character (although relevant in not increasing the sentence beyond the minimum) cannot amount to exceptional circumstances, nor can the fact that he did not intend to use the pistol or any of the guns held unlawfully for criminal purposes. All the circumstances identified by the judge were irrelevant. A minimum sentence of five years should have been imposed. 13. However, the position before us is changed in one respect. We have been provided this afternoon with a letter from a consultant at the Leeds teaching hospitals. It identifies (we need say no more than this) that one of the children of the offender is suffering from a very aggressive illness and this has put immense pressure upon the family. The aggressive illness is one that could be fatal, but it is hoped that, with treatment, it may not be in this case, although it will be very debilitating, during the course of the treatment, for the child. 14. It seems to us that those properly could, if they had been before the judge, have been characterised as exceptional circumstances because they go to particular and unusual circumstances that affected this offender, given the severe nature of the illness and the strain which it imposed upon the family. 15. In those circumstances, we have considered the offender’s wish to put these matters before us as an application to take these facts into account on a cross-notice for permission to appeal in relation to the five year sentence that would otherwise have been appropriate. In those circumstances we think we can properly reduce the sentence to one of three years, but beyond that we cannot go. Those who in any way contravene the Firearms Act must for the good of society, whatever the consequences are to their family, expect to receive the minimum sentence from Parliament. Judges must not feel sorrow or sympathy for any offender. The protection of the public demands nothing less than the imposition of minimum sentences. It is only in exceptional circumstances of the kind that have occurred in this case, rare as it is, that the court can exercise a degree of mercy. 16. For those reasons, therefore, we leave the sentence of three years as it is, granting the Attorney leave notionally to increase it, but we reduce it back to three years. Therefore the order of the court is that the sentence remains the same.

2009_07_07-2003.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1683/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1683

5a4eec62e5dde047b460f0445c97b3d4e298755b9f95ca2697ebb2a60e7e7d84

[2020] EWCA Crim 881

EWCA_Crim_881

crown_court

Neutral Citation Number: [2020] EWCA Crim 881 Case No: 201904630 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SHEFFIELD CROWN COURT Her Honour Judge Sarah Wright T20187254, T20190296, T20180702 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/07/2020 Before : LORD JUSTICE BEAN MRS JUSTICE MCGOWAN and MR JUSTICE MURRAY - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - DYLAN JOHN LAMB Respondent - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2020] EWCA Crim 881 Case No: 201904630 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SHEFFIELD CROWN COURT Her Honour Judge Sarah Wright T20187254, T20190296, T20180702 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/07/2020 Before : LORD JUSTICE BEAN MRS JUSTICE MCGOWAN and MR JUSTICE MURRAY - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - DYLAN JOHN LAMB Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Gordon Stables (instructed by The Registrar ) for the Respondent Hearing date : 23/04/2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Mrs Justice McGowan : Introduction 1. This case concerns the application of the principle of measured reference as it affects the imposition of sentences for historic sexual offences against children by reference to contemporary sentencing practice. R v H (J) [2011] EWCA Crim 2753 . 2. Reporting restrictions apply in this case and nothing must be published that would lead to the identification of the complainants throughout their lifetimes. Background 3. The appellant is 72 years of age. He was convicted after trial, of 21 counts of sexual abuse against five young boys in his care as a sports coach between 1977 and 1999. On 4 December 2019 in the Crown Court sitting in Sheffield, Her Honour Judge Sarah Wright sentenced him to a total term of 30 years imprisonment. 1 Indecent Assault on male s.15(1) Sexual Offences Act 1956 (D aged under 16 ) 3 years consecutive 10 years maximum 2 Indecency with a child, s. 1(1) Indecency with Children Act 1960 (L aged 13 ) 9 months concurrent 2 years maximum 3 Indecent Assault on male s. 15(1) Sexual Offences Act 1956 (L aged 13 ) 2 years concurrent 10 years maximum 4 Indecency with a child, s. 1(1) Indecency with Children Act 1960 (L aged 13 ) 1 year concurrent 2 years maximum 5 Indecency with a child, s.1(1) Indecency with Children Act 1960 (L aged 13 ) 2 years concurrent 2 years maximum 6 Indecency with a child, s.1(1) Indecency with Children Act 1960 (L aged 14 ) 2 years concurrent 2 years maximum 7 Indecent Assault on male s.15(1) Sexual Offences Act 1956 (L aged 13 ) 6 years concurrent 10 years maximum 8 Indecency with a child, s.1(1) Indecency with Children Act 1960 (L aged 13 ) 6 years concurrent 2 years maximum 9 Indecent Assault on male s.15(1) Sexual Offences Act 1956 (L aged 14 ) 6 years concurrent 10 years maximum 10 Buggery, s.12 Sexual Offences Act 1956 (L aged 13 ) 8 years consecutive Life 11 Buggery, s.12 Sexual Offences Act 1956 (L aged 14) 8 years consecutive Life 12 Indecent Assault on male s. 15(1) Sexual Offences Act 1956 (L aged 14 ) 5 years concurrent 10 years maximum 13 Buggery, s.12 Sexual Offences Act 1956 8 years concurrent Life (L aged 15 ) 14 Indecent Assault on male s.15(1) Sexual Offences Act 1956 (L aged 15 ) 5 years concurrent 10 years maximum 15 Buggery, s. 12 Sexual Offences Act 1956 (L aged 16) 5 years consecutive 10 years maximum 16 Buggery, s. 12 Sexual Offences Act 1956 (L aged 17) 5 years concurrent 10 years maximum 17 Indecent Assault on male s. 15(1) Sexual Offences Act 1956 (L aged 17 ) 2 years concurrent 10 years maximum 18 Indecent Assault on male s. 15(1) Sexual Offences Act 1956 (P aged 14 or 15 ) 3 years concurrent 10 years maximum 19 Indecent Assault on male s. 15(1) Sexual Offences Act 1956 (A aged under 15) 5 years consecutive 10 years maximum 20 Indecent Assault on male s. 15(1) Sexual Offences Act 1956 (M aged 15 ) 1 year consecutive 10 years maximum 21 Indecent Assault on male s. 15(1) Sexual Offences Act 1956 (M aged 15 ) 3 years concurrent 10 years maximum 4. As is obvious from the table above the sentence on count 8 of 6 years, at a time when the statutory maximum was 2 years is unlawful. In fact, as it was ordered to run concurrently, it has no effect on the total but must be corrected. Facts of the Offences 5. The appellant was a coach at football clubs and a hockey club during the 1970’s, 80’s and 90’s. He moved from one club to another in the general area of North Lincolnshire and South Yorkshire. He took advantage of his position as a coach to carry out acts of sexual abuse against the boys in his care. The five complainants played football or hockey for different clubs and were involved in team sports at their schools or local club at various times between the years 1977 and 1999 which was when the offending took place. The complainants ranged in age from 11 to 17. 6. In South Yorkshire where he was a football coach he went by the surname of Hawthorne and in North Lincolnshire he was a hockey coach who went by the surname of Lamb. 7. The abuse took various forms, represented in the counts on the indictment. The appellant would masturbate in front of them, he would touch them sexually, he would masturbate the boys and he performed oral sex on one of them. L, the complainant in counts 2 to 17, was raped anally on a number of occasions and had a candle put into his anus by the appellant 8. All his victims lived with the effects of what he had done to them for many years. Some confided in friends but felt unable to go to the authorities. In late 2016 one of them did decide to speak out; P, the complainant in Count 18. He was 45 years old when he went to the NSPCC to speak about the abuse that he had suffered. The NSPCC referred the matter to the police and so in his mid-40s P explained to the police what happened to him in 1982/83 when he was 11 years old at the hands of his then football coach. He described how he had met the appellant through Dearne Valley FC who had their home ground in Brampton near Doncaster, South Yorkshire. 9. Count 18 reflects the offending against P. On a Sunday in 1982 or 1983 the appellant invited P and a friend on a bike ride. They all returned to the appellant’s home. There he pulled P onto the sofa and, forcing his hand into P’s underpants, he touched P’s penis. 10. The next person to come forward was L. He was 53 when he spoke to the police in February 2017. He told the police that the appellant had regularly abused him from about 1977 to 1982/83 when he was between the ages of 13 years old and 17 years old. He had seen national media coverage regarding abuse of young boys in football clubs and realising he was not alone he decided to speak out about events that had occurred over 30 years ago. He spoke of abuse at the hands of his football coach, at the time the appellant was working at a school. That abuse saw him being groomed into having regular sexual contact with Mr Hawthorne, as he knew him. The abuse began with touching but over time developed into anal rape. The appellant and L stayed in contact over many years, the abuse in his case lasted much longer and was more severe. The following is a summary of the counts on the indictment in which L was the victim. Count 2 , the appellant masturbated in L’s presence. Count 3 the appellant masturbated L. Count 4 the appellant made L touch the appellant’s penis over clothing. Count 5 the appellant made L masturbate him. Count 6 the appellant made L masturbate the appellant. Count 7 the appellant sucking L’s penis Count 8 the appellant put his penis in L’s mouth Count 9 the appellant inserted a candle into L’s anus Count 10 buggery when L was 13. Counts 2 to 10 occurred when L was around 13 years old Count 11 buggery when L was 14. Count 12 the appellant sucked L’s penis when he was 14. Count 13 buggery when L was 15 years old. Count 14 the appellant sucked L’s penis when he was 15. Count 15 involved buggery when L was 16. Count 16 was buggery when L was 17. Count 17 the appellant sucked L’s penis when he was 17. 11. Count 19 reflects the offending against A. He was the third person to speak to the police in August 2017. He is younger than P and L and in his case the abuse took place later, in about 1994 when the appellant was a hockey coach. He was the juniors’ coach at a hockey club near Scunthorpe, in North Lincolnshire where he continued to offend. The appellant organised other events apart from hockey training and games. One event was a camping evening. Other boys spent the night under canvass but A who was 14 or 15 years old was told he could stay in the appellant’s home. A bed was made for him by pushing two chairs together and he was happy with the arrangement thinking it was a privilege. A was woken up by the appellant sucking his penis. He told him to stop and the appellant asked him “why” saying “You’re enjoying it”. 12. Count 1 reflects the offending against D. He was the next of the victims to contact the police. The offending against him occurred in the 1970s when the appellant was a football coach back in South Yorkshire but at a different club from the one that P and L attended. D went to the police in August 2017 when he was 53 years old. When he was about 12 years old he played football at a local club in South Yorkshire. The appellant, then known by the name Hawthorne, was the coach. He also used to organise other activities, including walking. On a walk, as they sat down to rest, the appellant showed pornographic pictures to D and then masturbated him. 13. Counts 20 and 21 reflects the offending against M. M was the last of these complainants to come forward. He spoke to the police in May 2018, when he was 33. He told what happened to him when he was 14 years old boy. He played hockey in 1998/9. He had heard that A had come forward and felt that it was time that he spoke to the authorities. He told the police that he had been sexually abused in a hotel room by the appellant who had first touched his nipples and then his penis under his clothing and had encouraged him to kiss another boy who was also present. 14. His offending began in South Yorkshire in around 1976 and continued until 1999 in North Lincolnshire. During that time span the appellant moved from club to club. He had used different names over that time span. 15. There was a gap in his offending as in November 1983 he was sentenced to two years for two counts of indecency, one count of indecent assault on a male under 14, intercourse with a girl under 16 and buggery of a male under 16 and five offences were taken into consideration. Sentencing Exercise 16. In passing sentence, the learned Judge rightly observed that these offences were an exploitation of the appellant’s position as a sports coach. He had targeted his victims and planned his conduct so as to be alone with them. He relied upon the fact that they were unlikely to report his behaviour and he continued on the basis that he was safe from detection, even though some other offending had come to light. He had not been deterred by conviction and a prison sentence for similar offending during the indictment period. He disguised his identity by changing his name and married without telling his wife of his previous convictions. 17. The Judge rightly commended the victims for their bravery in speaking up. She outlined the terrible and traumatic effect the abuse had on these men. It was correctly described as devastating. She found that each had suffered psychological harm and had lived with the consequences of the offending since their adolescence. 18. In the careful and considered sentencing remarks, at page 2G-3B, the learned Judge set out her approach to the dealing with such a lengthy passage of time between offending and sentence. “The offences for which I must pass sentence today took place many years ago at a time when the sentencing climate was less severe than it now is. There is clear guidance as to how I should approach this task. It is set out in annex B to the Sexual Offences Definitive Guideline. I must sentence you in accordance with the sentencing regime applicable today, not at the date of the offence, but I am limited to the maximum sentences available at the time of the offences. I must assess the seriousness of the offence and must be guided as to that by the current guideline, which offers assistance to me in the assessment of harm and culpability as well as giving broad ranges into which sentences should appropriately fall. I must consider the relevance of the passage of time carefully and decide whether that is an aggravating, mitigating or neutral factor. But it seems to me that there has been delay in bringing you to justice because, as a result of your behaviour towards them, your victims felt unable to speak up out of fear, some out of a sense of shame and some out of a fear of not being believed or a fear of being blamed themselves for what was happening to them. Where it is necessary to do so, I must consider how the offences you committed would be characterised under modern legislation and modern guidelines.” This was a model approach and correctly summarises the guidance given by the sentencing Council in dealing with cases of historic abuse. The issue in the appeal is whether she failed adequately to make measured reference to definitive sentencing guidelines now in effect, relevant to the established facts of each historic offence. 19. She found that the number, nature and gravity of these offences, the serious breach of trust and the psychological harm caused to each victim gravely aggravated the position. She also found there to be “very significant planning”. The previous convictions for like offences was obviously a statutory aggravating feature. She considered the appellant’s age as a relevant factor. The combination of the many aggravating features would have entitled her to go outside the normal range for an individual offence but she made it clear that she would apply the principle of totality to avoid a sentence that would otherwise be “out of all proportion”. Therefore, she adjusted the length of individual terms and ordered that some of those terms should run concurrently to reach the total of 30 years which she imposed. Grounds of Appeal 20. In his extremely helpful written and oral submissions Mr Stables argues that the total sentence imposed was manifestly excessive. He submits that there was a failure to make “measured reference” to the current guidelines, as a consequence of which some individual terms were manifestly excessive and insufficient adjustment was made to satisfy the principle of totality. He argues that the effect of the failure to achieve the proper measured reference meant that some of the individual sentences did not adequately reflect the relationship of the nature of offending to the historic maximum sentence. 21. He cites the sentence on count 5 as the one of the most stark examples of his proposition. The statutory maximum at the time of the offending was 2 years imprisonment. The contemporary statutory maximum is 14 years. The Judge imposed the maximum sentence available at the date of offending without adjustment to reflect the fact that within the range of offending the conduct was not at the very highest level. Similarly, on count 4, the contemporary equivalent would be an offence under s.10 of the Sexual Offences Act 2003 , causing a child to engage in sexual activity. That is the contemporary equivalent offence and has a statutory maximum of 14 years. Mr Stables argues that this incident in which the appellant made the victim touch his, the appellant’s, penis over clothing, would be a Category 3A offence on the modern guideline. It would have a starting point of 6 months. On this count the Judge imposed a term of 1 year when the statutory maximum at the time was 2 years. 22. He argues that the starting point should be lower than a contemporary starting point if the maximum sentence is lower, and in some instances much lower. The construction of the final sentence by the addition of terms that failed adequately to meet the need for calibration between the old regime and the new lead to a total term that, without further adjustment to accord with the principle of totality, was manifestly excessive. Discussion and Conclusion 23. The difficult problems in the sentencing of, often, elderly offenders for offences committed many decades ago have come before this court in many cases but definitive guidance was provided in the case of R v Forbes and others [2016] EWCA Crim 1388 , Lord Thomas of Cwmgiedd CJ set out the correct approach “The basic principles 4. As is clear from paragraphs 1 and 2 of annex B, reiterating what was said in R v H: i) The offender must be sentenced in accordance with the regime applicable at the date of sentence. The court must therefore have regard to the statutory purposes of sentencing and to current sentencing practice. ……………… ii) The sentence that can be passed on the offender is limited to the maximum sentence available at the time of the commission of the offence, unless the maximum has been reduced, when the lower maximum will be applicable. 5. Although these principles are clear and, as we shall explain, clear guidance was given in annex B, various issues have arisen in relation to their application. Regard to the guidelines for the equivalent offence 6. Paragraph 3 of the annex B provides: "The court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003 ." 7. This reflected [47] of H where Lord Judge CJ said: "(a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts. (b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. …."(emphasis added) 8. ………………………. 9. The phrase "have regard to" (which was intended to have the same meaning as "by measured reference to") was intended to make it clear that the judge should not simply apply the relevant guideline applicable at the date of sentence, subject to any lower statutory maximum sentence applicable at the date the offence was committed, but use the guideline in a measured and reflective manner to arrive at the appropriate sentence.” 23. The term “measured reference” is not intended to prescribe a mathematical exercise, but rather to cause the court to reflect the previous maximum sentence as part of the composition of the sentence based on current guidelines. It must achieve a proper calibration and thereby some reduction to reflect the statutory maximum available at the date of offending. 24. Applying the approach set out in Forbes to the current case we find that, despite the conspicuous care with which the learned Judge approached this difficult sentencing exercise, there was a failure to apply measured reference between the current guidelines and the statutory maximum terms in force at the time. 25. This court is required to look at the total sentence and assess whether the ground that it is excessive has been established. Applying the principle in Forbes and making measured reference to relevant contemporary sentencing guidelines in light of the statutory maxima at the relevant time, we conclude that the total term of 30 years is excessive and that a total of 25 years would have been appropriate. This does not, in any way, under-estimate the appalling nature of the sexual abuse in this case nor the devastating effect it has had on the victims and their families. 26. Therefore, adjusting the total to achieve a proportionate sentence without a total and unnecessary reconstruction we order that the five year term on count 15 should run concurrently to the other sentences, thereby reducing the total term to 25 years imprisonment. 27. The sentence imposed on count 8 is unlawful, the Judge imposed a term of six years for an offence that carried a two year maximum at the time. That sentence will be reduced to a term of one year. That was a serious offence and a term of half the statutory maximum was richly deserved. As it had been ordered to run concurrently, that has no practical effect on the total term. 28. To that extent this appeal is allowed.

2020_07_15-4931.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/881/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/881

216f15adc38e62284acf3ec0c5a5ec5eecd8989e62a54639e042f6f6f7a95d39

[2006] EWCA Crim 1410

EWCA_Crim_1410

crown_court

No. 2006/02087/D5 Neutral Citation Number: [2006] EWCA Crim 1410 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 24 May 2006 B e f o r e: LORD JUSTICE MAY MRS JUSTICE RAFFERTY and HIS HONOUR JUDGE DIEHL QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ CROWN PROSECUTION SERVICE DURHAM - v - C E __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telep

No. 2006/02087/D5 Neutral Citation Number: [2006] EWCA Crim 1410 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 24 May 2006 B e f o r e: LORD JUSTICE MAY MRS JUSTICE RAFFERTY and HIS HONOUR JUDGE DIEHL QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ CROWN PROSECUTION SERVICE DURHAM - v - C E __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MR B HOULDER QC and MISS A L RICHARDSON appeared on behalf of THE APPELLANT (CPS DURHAM) MR A J C LODGE QC and MR D CALLAN appeared on behalf of THE RESPONDENT (CE) ____________________ J U D G M E N T LORD JUSTICE MAY: 1. Article 6 of the European Convention on Human Rights is headed "Right to a Fair Trial". By Article 6(3) everyone charged with a criminal offence has a number of minimum rights. These include the right to examine or have examined witnesses against him. By section 6 of the Human Rights Act 1998 it is unlawful for a public authority, which includes a court, to act in a way which is incompatible with a Convention right. The Crown Court at Newcastle upon Tyne was therefore obliged to afford the respondent to this appeal by the prosecution the minimum right to examine or have examined witnesses against him. By section 3 of the Human Rights Act 1998 the court was, so far as possible, obliged to read and give effect to primary and subordinate legislation in a way which is compatible with the respondent's Convention rights. That was of general relevance to the legislation the subject of this appeal. 2. The European Court of Human Rights has considered the ambit of Article 6(1) and Article 6(3)(d) in a number of cases. These include Luca v Italy (2003) 36 EHRR 46 . The judgment in that case includes at paragraph 40 the following: ".... If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6.1 and 3(d). The corollary of that, however, is that where the conviction is both solely or to a decisive degree based on depositions that had been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6." The reference to "depositions", that is to say statements made during an investigative stage compatible with Article 6, especially when the witness refuses to repeat his deposition in public owing to fear for his safety. The Court held at paragraph 40 that if the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not contravene Article 6.1 and 3(d). 3. This court has held that the obvious principle of basic fairness, which the passage in Luca v Italy articulates, is not absolute. In R v Sellick [2005] EWCA Crim 651 , this court considered that neither Luca nor any of the other authorities to which the court referred in detail were concerned with a case in which the witness was kept away from giving evidence at the trial by fear induced by the defendant himself. The court could and should take counterbalancing measures which would allow the statement to be read. The defendant could not deny himself the opportunity of cross-examining the witness and then complain of an infringement of Article 6. Such matters, said the court, are fact specific. 4. In the present case the respondent was charged with two counts of rape. Count 1 alleged vaginal rape; count 2, anal rape. The prosecution have since accepted that there is insufficient evidence to proceed on count 2. As to count 1, they have some supporting evidence, but that evidence is insufficient in itself. The main evidence on which they wish to rely is a video-recorded, out-of-court interview of the complainant who will not attend court to give evidence at the trial and be cross-examined. The prosecution accept that the case against the respondent is solely, or at least to a decisive degree, based on this evidence. They cannot and will not proceed if the video, uncross-examined, is not admitted. 5. The prosecution applied to the trial judge, His Honour Judge Wood, to have the video evidence admitted. On 26 April 2006, the judge made a terminating ruling refusing the application. This is the prosecution's appeal against that ruling with the leave of the judge (see section 57 and those following of the Criminal Justice Act 2003) . By section 67 of the 2003 Act , this court may not reverse a ruling on an appeal such as this unless the court is satisfied that the ruling was wrong in law, that it involved an error of law or principle, or that the ruling was one which it was not reasonable for the judge to have made. 6. The application was to admit hearsay evidence within Chapter 2 of the 2003 Act (see section 114 and those following of the 2003 Act ). We have taken particular note of the matters in section 114(2), to which the court must have regard. 7. The judge was satisfied on medical evidence that the complainant was unfit to be a witness because of her bodily or mental condition (section 116(2)(b)) and that she would not give oral evidence in the proceedings through fear (section 116(2)(e)). The latter of these requires the court's leave for the statement to be given in evidence. The former was also subject to an exclusionary discretion, if nowhere else under section 78 of the Police and Criminal Evidence Act 1984 , as tempered by the Human Rights Act and Article 6 of the Convention. 8. The court's power to give leave under section 116(2)(e) is limited by section 116(4) . Leave may only be given if the court considers that the statement ought to be admitted in the interests of justice, having regard to a number of matters, including the statement's contents, any risk that its admission or exclusion would result in unfairness, and any other relevant circumstances. 9. In reaching his decision, the judge had regard to the contents of the video. At page 2 of the transcript he said: "5. .... I have viewed the video, which is some 71 minutes long. It does not mention anal rape either, but it does describe a consensual relationship which deteriorated to the point where the complainant was a virtual prisoner in her friend's house, and subjected, she alleges, to violent and non-consensual sexual intercourse over a prolonged period. Having said that, it is also a video that raises a large number of issues about the question of consent which any defence lawyer would wish to explore. These are set out in the defence skeleton argument at paragraph 14 and I think for the purpose of the transcript it is worthwhile repeating them." The judge then did indeed repeat them. They are a large list of obvious subject matters which anyone defending the respondent in a case such as this would naturally expect and wish to be able to deal with in cross-examination. They are to be found at paragraph 6 of the judge's ruling. He then went on to say: "7. To be fair to the officers who were conducting the interview, they did agree in evidence that there were issues that they might have wished to explore further with the complainant, but having taken medical advice and given what the complainant's medical state was, they thought they should not seek to challenge her in any way and should simply record her complaints as she gave them." At a later stage in his ruling the judge said: "17. Having decided the conditions of section 116(2)(b) and (e) are met, I must therefore go on to consider section 116(4) and also the provisions of Article 6(3). The video evidence is in effect the sole and decisive evidence. The sole issue in the case is consent, both whether the complainant did consent and whether the defendant reasonably believed that she did. Having viewed the video, it is plain that the witness, the complainant, did then and does now have problems with her mental health and with alcoholism. She has severe problems with memory loss and her sense of time. It is in my view very unclear as to when the violent and abusive relationship became a non-consensual one, and whether the defendant was ever aware of or informed of this change. There are grave practical difficulties over the complainant's assertion that she was, in effect, a prisoner in a house occupied by her friends, visited by her relatives and equipped with a mobile phone. To say, as the Crown do, that these are jury points deprives the defendant in my view of obtaining any kind of real explanation as to these difficulties. In my judgment, borrowing the expression from R v M the complainant is potentially a completely flawed witness." 10. Mr Bruce Houlder QC suggested that we might see the video for ourselves. We have not, in fact, done so, but we have, and have considered, a transcript of it. The judge's assessment of it and the nature of its contents is not, except in some points of detail, challenged and we do not see it as part of our function to re-assess it by watching it all over again. It is plain that its contents are problematic, confused perhaps, and that they cry out for examination by way of cross-examination. We are quite confident that detailed forensic points with reference to the transcript or the video itself would not alter that general conclusion, nor the conclusion to which, in our judgment, the judge legitimately came as to the nature of this evidence. 11. It was accepted before the judge that, although the complainant would not give evidence at a trial through fear, the fear had not been intentionally induced by the defendant so as to keep her away. The possible qualification of Luca v Italy which this court considered in Sellick did not arise therefore, although Mr Houlder makes the general point that the case is one where the complainant would not give evidence through fear of the respondent. The prosecution have attempted to stand back from that in this court by seeking to introduce two letters written from prison by the respondent to the complainant. Mr Houlder made clear that the reliance on the letters was more on the subject of credibility than on the subject of the respondent having put the complainant in fear. We are not impressed by this. The longer of the two letters was available to the prosecution in October 2005, and no persuasive reason is offered to us for not introducing it before the judge. Neither of the letters bears on the question that the complainant will not give evidence through fear. The longer one is no more than foul-mouthed and offensive general abuse of a sexually explicit nature. 12. The judge directed himself correctly as to the law and at some length. He expressed his decision as follows: "18. I do not rely on the view in Luca v Italy that simply because her evidence is the sole and decisive evidence the defendant cannot have a fair trial if she is not called. I do, however, rely on the provisions of section 116(4) that it would result in unfairness to this defendant, given how difficult it would be to challenge the statement, if the relevant person did not give oral evidence, and having regard to all the other circumstances to which I have referred. In that sense, therefore, I do find that admitting the video evidence without calling the witness would be a breach of Article 6(3). I am also satisfied that it would be unfair to admit the video evidence, having regard to the provisions of section 116(4) ." 13. The central basis of the prosecution's appeal is that the judge acted unreasonably in exercising his discretion to exclude the video statement. Reference is made in Mr Houlder's written skeleton to Wednesbury unreasonableness. That is a reference to Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 . Wednesbury unreasonableness is often expressed as perversity, recognising that appellate courts do not overturn discretionary decisions made on correct legal principles simply because another view might have been taken. So, too, we think with section 67(3) of the 2003 Act . It is said that the judge failed sufficiently to take account of the interests of the complainant and the public in seeing that cases such as this are considered by a jury whenever possible: the interests of the complainant in having her case by some means or other brought before a court. It is said that the judge failed properly to consider that it was possible for the respondent to contradict the complainant's evidence if he wished. It is also said that the judge failed to take full account of a number of detailed points. These include the suggestion that Parliament intended to find means whereby the evidence of vulnerable witnesses might be received. The judge had power to stop the case if the evidence was unconvincing. Reference is made to section 125 of the 2003 Act and to section 124 of the 2003 Act , which gives the opportunity to lead evidence as to the credibility of evidence which is not called orally. The power under section 125 is one which in substance, we observe, the judge exercised in this case (albeit not at the time that that section anticipates). Reference is also made to the importance of the evidence to the case, the circumstances of the taking of the video, the comparative reliability (so it is said) of the complainant, the fact that the respondent could himself give evidence, and the judge's power and obligation to direct the jury in strong terms. Certain other points are made about the detail of the judge's view of the video evidence and the terms of the judge's decision. It is further said that the defence have not served a defence statement. That may or may not be correct. The defence would have the opportunity to make points in relation to the video in argument to the jury. The judge, it is said, was wrong to say that recent complaint was not independent evidence. 14. We do not find these submissions persuasive. What is more, they tend, in our judgment, to obscure the main point. The sole or decisive evidence against the respondent was this hearsay, uncross-examined and untested video statement. The proposal was to adduce this as evidence without calling the complainant. She would not give evidence in part through fear, but not fear relevantly induced by the respondent. To admit this evidence would, we think, be a breach of Article 6.3 of the Convention, denying the respondent his minimum right and a breach by the court of section 6 of the Human Rights Act 1998 . Subject to this, the judge had a discretion under section 116(4) of the 2003 Act , which was evaluative and fact sensitive. We are quite unpersuaded that his decision was unreasonable, let alone perverse. Indeed, we think that a conviction on the basis of this hearsay evidence, uncross-examined, was likely to result in a successful appeal against conviction, if conviction there were. The respondent would have been denied an important component of his minimum rights to a fair trial. 15. In reaching this conclusion, we take fully into account Mr Houlder's submission that on the evidence the complainant was terrified of the respondent and that it was his conduct that put her in fear, and his submission that the circumstances were grave and that the victim was entitled to be heard. But we consider among other things that her reasons for not giving evidence were not limited to her fear of giving evidence, and we consider, importantly, that in the end this was a discretionary decision made by the judge upon correct principles, which we are unable to find was unreasonable or indeed perverse. 16. For these reasons this appeal is dismissed. 17. MR LODGE: My Lord, may I refer to section 61(3) of the Act, which is in the bundle prepared by the appellant? 18. LORD JUSTICE MAY: "Where the Court of Appeal confirms the ruling ..."? 19. MR LODGE: My Lord, yes. "Where the Court of Appeal confirms the ruling it must in respect of the offence, for each offence which is the subject of the appeal, order that the defendant shall in relation to that offence be acquitted of that offence." We would invite you, in the light of your Lordships' judgment, to make that order. 20. LORD JUSTICE MAY: Mr Houlder? 21. MR HOULDER: We cannot oppose that. 22. LORD JUSTICE MAY: The court accordingly orders that the respondent be acquitted in relation to the offence on count 1 of the indictment. 23. MR HOULDER: There is one further matter on which I would seek the court's assistance. It is section 71 . It is a matter that has been raised by those in the court from the press who are concerned with reporting this matter. Section 71 of the Act provides that no publication of a report of anything done under section 58 (and other sections as well) shall be published, but the Court of Appeal may order that that section is not to apply to a specific extent to a report of an appeal to the Court of Appeal under this Part of the Act. That is subsection (3). A defendant is given a right by subsection (5) to make any representations -- I will read it. "Where there is only one defendant and he objects to the making of an order under subsection (2)" -- that is an order that the section or reporting is not to apply -- "if the defendant objects to the making of that order, the judge, the Court of Appeal or the House of Lords are to make the order if and only if satisfied after hearing the representations of the defendant that it is in the interests of justice to do so. The order, if made, is not to apply to the extent that the report deals with any such objection or representation." So there is a right for the defence to be heard on the matter. I understand, at least from those in court, that the interest in reporting is not to do more than to report the point of law and the circumstances which gave rise to the appeal itself -- no wider than that. But I agree that any order made by this court cannot bind any other member of the press unless the order is confined within subsection (5) of section 71 . 24. LORD JUSTICE MAY: Mr Lodge, what about it? 25. MR LODGE: My Lord, I must confess that we have not considered this matter, and before my learned friend's reading out of the section we had no observations to make. 26. LORD JUSTICE MAY: I would have thought that a report in the nature of a law report which did not identify the people concerned would be unobjectionable, except that this is an ex tempore judgment and I would query whether anyone would want to report it. Is there any objection to that? 27. MR LODGE: My Lord, no. It could be referred to simply by initials as it appears on the court list at the moment. 28. LORD JUSTICE MAY: Bearing in mind that this was an ex tempore judgement, and therefore query whether it is reportable, the court indicates that section 71(1) of the 2003 Act is not to apply to any report in the nature of a law report, provided that the identity of those concerned is not revealed. Is that sufficient? 29. MR HOULDER: Yes, I think it is. 30. LORD JUSTICE MAY: Thank you very much. 31. MR LODGE: My Lord, may I mention one matter? 32. LORD JUSTICE MAY: Yes. 33. MR LODGE: This is for the benefit of the respondent, and particularly those who have his care at Holme House Prison in Stockton-on-Tees. As a result of the decision of this court, he must now be released. As a result of the previous conviction in 1998 he is subject to registration under the Sexual Offenders provisions. He was arrested for a breach of those provisions in May of last year in the City of London. He is no longer being detained in Holme House as a result of those provisions. He is being held in Holme House, up until now, having been arrested for these offences of rape. I mention this so that those who are currently in charge of him know that there is now no longer any reason for him to be detained. But I understand, and I will need to speak to the respondent about this, that there is concern about where he is going to have his registered address under the provisions that apply to him, and he may need some assistance in being brought to an address because he is not a resident or a native of the north-east. So I would welcome an opportunity to speak, through the video, to those holding him and to the respondent himself immediately the court rises. 34. LORD JUSTICE MAY: Anything that happens in that respect is a matter of executive responsibility, but no doubt the authorities will know that this court has directed his acquittal of count 1 of this indictment. The consequences of that are a matter for them, not for this court. As to speaking with the respondent, as far as the court is concerned, you may certainly do so by means of the video. ( The court adjourned ) ( Later, in the absence of counsel ) 35. LORD JUSTICE MAY: The prosecution's appeal related only to count 1 of the indictment. The court was told, and prosecuting counsel confirmed, that the prosecution did not propose to proceed with count 2. It was the court's understanding that in those circumstances the result of the appeal, which we ordered, was that a not guilty verdict should be entered on count 1. We did this on the understanding that that disposed of the indictment. We are now informed that technically count 2 has not been disposed of. We are further informed that counsel both for the prosecution and the defence are content, indeed ask, for this court to direct that a not guilty verdict is entered on count 2 as well as count 1, and this we do. ___________________________

2006_05_24-816.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1410/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1410

a79e8ce1ad8aba0720876a90ab818b4378652e02a5b4c94a6a5ae5422cafbf51

[2022] EWCA Crim 1209

EWCA_Crim_1209

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 202200602/A2 [2022] EWCA Crim 1209 Royal Courts of Justice Strand London WC2A 2LL Thursday 28 July 2022 Before: LADY JUSTICE CARR DBE MR JUSTICE FRASER THE RECORDER OF LEEDS HIS HONOUR JUDGE KEARL QC (Sitting as a Judge of the CACD) REGINA V JOHN JOSEPH HALL __________ 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 S BAHIA appeared on behalf of the Appellant J U D G M E N T MR JUSTICE FRASER: 1. This is an appeal against sentence brought with permission of the single judge, who also granted a representation order in the usual way. We have been assisted by the oral submissions of Miss Bahia of counsel on behalf of the appellant and we are very grateful to her. 2. On 8 December 2021 in the Crown Court at Warwick the appellant pleaded guilty at a mention hearing when the case was to have been fixed for trial. The charge was one count of attempting to cause grievous bodily harm with intent, contrary to section 1(1) of the Criminal Attempts Act 1981. His guilty plea came after he had attended at court at the invitation of the judge to watch CCTV footage of the incident in question. For this count he was sentenced on 9 February 2022 by Her Honour Judge de Bertodano to a term of imprisonment of 39 months. Another count against him, arising out of the same incident, which was a count of causing actual bodily harm, was not proceeded with upon his guilty plea and no evidence was offered in respect of that count. 3. The facts of the offending are as follows. The appellant was 21 at the time of sentence and 19 at the time of the offence, which had taken place on 2 February 2020. An argument had started – the reasons for it are not clear, nor are they relevant – in the early hours in or outside a nightclub in Coventry. That club is situated in a shopping precinct. The victim of what happened next is called Milad Noori and he became involved in a disagreement with a doorman at the nightclub and was ushered away by a friend of his. As a result perhaps of something that was said to an adjoining group, one of that adjoining group went back into the club and emerged with some friends. These young men then chased the friend of Milad Noori through the shopping precinct. That chase ended up in a car park. When that victim was attempting to get into his car he was set upon, including being kicked and punched when on the ground. The appellant was not involved in that attack. Milad Noori attempted to become involved and was himself chased by the attackers out of the car park. This chase group ended up back outside the club. 4. Milad Noori also returned to the vicinity of the club and then again to the car park and was again chased by some members of the same group. By this time the appellant was with someone called McCarron walking through the precinct. McCarron had been involved throughout the earlier violence in the car park. McCarron and the appellant noticed Milad Noori running towards them, being chased; one of them attempted to trip him up and the two of them then joined the chase. Eventually four of them, including the appellant, caught up with Milad Noori and he fell to the ground, whereupon they set upon him using kicks and punches. 5. The appellant kicked or stamped on Milad Noori whilst he was on the ground five times. He also took out his phone and filmed the rest of the attack. This was all captured on CCTV. We have all watched this footage and even for those accustomed to watching such material, as we are, the level of violence inflicted is shocking. It is extremely lucky for all involved that Milad Noori was not more badly injured or worse. The number of kicks and stamps to the head in total is very high and the attack continues for some time. Throughout Milad Noori is outnumbered and lying on the ground whilst he is being attacked by the appellant and others. All of this was captured by the appellant as he filmed what was happening. 6. When sentencing him, the learned judge noted the involvement of the appellant as well as that of his co-defendant William Brennan who was sentenced at the same time. Two other co-defendants had already been sentenced on an earlier occasion for this offending, as well as for far more serious offending which on a different occasion that had led to the unlawful killing of somebody and for which they were convicted of manslaughter. 7. The sentencing judge correctly noted when sentencing the appellant that maturity does not instantly descend upon someone when they reach the age of 18, and she considered the guideline on sentencing young people and the key elements and principles involved in doing so. She took express account of the impact of the Covid pandemic upon those who were sent to prison generally and had the benefit of a pre-sentence report. 8. That pre-sentence report states in relation to the attack: "All persons act as one, in what is a frenzied and prolonged attack, leaving the victim in a bad state, in and out of consciousness. All of them then flee the area back towards the car park and where they get into a vehicle and leave the area either in that or on foot. Meanwhile the police and paramedics arrive and tend to the victim. He is hospitalised with a suspected bleed on the brain, head and facial injuries and injuries to his hands. Injuries sustained are later consistent with Actual Bodily Harm." 9. The report also noted, pursuant to the account given to the Probation Officer by the appellant, that he had been drinking to the point of inebriation and was influenced by what was called "group rage". 10. Turning to the categorisation, the sentencing judge assessed harm as Category 3 due to the fact that the victim did not sustain really serious injury but with high culpability. She said that it was the fact that the offence was an attempt that put it in Category 3 and she did not discount further for the fact it was an attempt. Effectively the discount for it being an attempt, rather than the completed offence, was included in that categorisation. The judge took account of the appellant's age, good character, home circumstances and general background and said that had he been in his twenties at the time she would have started at five years. However, she took a starting point of four years due to his age and reduced it for his plea by another nine months to arrive at a figure of three years three months (or 39 months). The starting point for Category 3 is four years' imprisonment with a range of three to five years. 11. The grounds of appeal are as follows. First, it is said: "The sentence is appealed on basis that on the basis of parity alone he should have received 3 years and the distinguishing factors in his case meant there should have been a distinction between his sentence and that of Blue Brennan and Kane McCarron." 12. Brennan and McCarron were also involved in the attack. McCarron was 17 years old and Brennan was also only 17 years old. McCarron was sentenced by another judge and given 54 months, which was a figure for sentence discounted down from what he was told an adult would have been given of nine years after a trial, reduced to six years for his age. The judge who sentenced him was also sentencing for all the other offences that defendant faced. The figure of three years for that other defendant’s offending on this occasion features in this appeal in the sense that it is pointed out to us that this appellant has received the most severe sentence of any of the others involved in that attack. 13. There are three specified grounds. They are as follows: 1. The categorisation of sentence was wrong in principle based on the learned judge's sentencing remarks for Kane McCarron and Ethan Lilley. 2. The sentence should have been further adjusted to reflect that this was an attempt. 3. The personal mitigation was not reflected in the overall sentence that was imposed of three years and three months. 14. Lilley was sentenced to a period of two years for this attack, but that was ordered to run with other sentences including one for manslaughter which led to a total sentence in his case of 14 years. 15. We deal firstly in general terms with the criticism of parity, or more accurately the lack of it, that is raised in the grounds. There are two reasons why such an approach to challenging a sentence in this court is flawed. First, parity is not a point which generally has much traction in this court, which is solely concerned with whether a sentence for any particular offence on any particular individual is manifestly excessive or wrong in principle. Secondly, specific to this case, two of the other defendants whose sentences are identified as demonstrating a lack of parity were only 17 years old at the time and far less mature. They were not in legal terms adults at the time of their offending. One of them, as we have explained, was given a concurrent sentence to run at the same time as a far longer sentence for manslaughter. 16. Additionally, none of those others took their phones out and filmed the attack. This is additional degradation or humiliation for the victim and in the court's view is a serious aggravating factor. It is a feature of offending which only affects the appellant and not the other members of the group involved in the attack. 17. Turning to the suggestion that the starting point should have been adjusted lower to reflect the level of harm in fact caused, which was consistent with actual bodily harm and not grievous bodily harm, the court considers this to be a flawed argument. The offence to which this appellant pleaded guilty was one of attempting to cause grievous bodily harm with intent. The approach to sentence in such cases is to take account of the substantive offence and its relevant guidelines and adjust as necessary for the fact that it was an inchoate offence only. The level of intended harm is highly relevant. Here the level of culpability was more than high enough to justify the judge's approach. She chose the relevant category based on the fact it was an attempt and made an adjustment by reason of doing so. The sentencing judge expressly took the lower categorisation into account to reflect the fact this was an attempt and she explained that she was doing so. 18. Turning to personal mitigation, we have touched on the contents of the pre-sentence report and there were also a large number of personal references, predominantly from family members but also from work colleagues. The appellant's father said that he found it hard to believe his son was before the court for sentencing, and his grandmother stated that "it would be an awful shame if his whole life was ruined by an awful momentary mistake". That description of the event as a momentary mistake is not one that sits easily with the CCTV footage, and the length of time over which the attack unfolds. This was a prolonged and vicious group attack in which an outnumbered victim is subjected to prolonged assault by a group. 19. Although the appellant is a young man and he had no previous convictions and a good work record, he also had other mitigation, for example taking a paid job to assist in the family finances after his father had left his mother and she found herself struggling alone financially. He plainly does have some positive qualities. 20. However, this mitigation was taken into account by the sentencing judge. We wish to make it clear, as the sentencing judge did, the hope of the court that upon his release at the halfway stage the appellant will go on to be a productive and worthwhile member of society. However, the circumstances of this offence are such that the resulting sentence cannot in all the circumstances be said to be manifestly excessive. We therefore dismiss the appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2022_07_28-5403.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1209/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1209

5149f7ddecccf63da2d6ac86e05cad4d3ac90afb5be67aaea3f7518dd392e1c1

[2008] EWCA Crim 114

EWCA_Crim_114

crown_court

No: 2007/5194/A2 Neutral Citation Number: [2008] EWCA Crim 114 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 17 January 2008 B e f o r e : MR JUSTICE STANLEY BURNTON MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - R E G I N A v JASON PALMER - - - - - - - - - - - - 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: 0

No: 2007/5194/A2 Neutral Citation Number: [2008] EWCA Crim 114 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 17 January 2008 B e f o r e : MR JUSTICE STANLEY BURNTON MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - R E G I N A v JASON PALMER - - - - - - - - - - - - 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 Buckland appeared on behalf of the Appellant - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE WYN WILLIAMS: On 4th September 2007 at the Crown Court at Harrow, the appellant was sentenced by His Honour Judge Moss to a total term of imprisonment of three years in respect of a number of different offences of dishonesty. With the leave of the single judge he appeals to this court against that sentence. The only ground of appeal is that the total term of three years is manifestly excessive. 2. The first offences in time occurred on 4th December 2005 in the town of Slough. During the evening of that day, the police received a report that a number of motor vehicles which had been parked in a public car park were the subject of attack by a number of men. On investigation the police discovered that four vehicles had been broken into and that a number of items had been taken from three of them. The same day a car in which the appellant was a passenger was stopped by police officers and the men inside were arrested. When he was interviewed about the offences, the appellant claimed that he had been asleep in the car and had simply been woken up by police sirens. 3. In due course the appellant was charged with three offences of theft and one offence of attempted theft arising out of this incident. He was then released on bail and he was due to appear at the Slough Magistrates Court on 5th May 2006. However, on that day the appellant failed to surrender to his bail. Accordingly a bench warrant was issued which was in due course executed. 4. Although the appellant remained in custody for some time, he was released on bail again in early August 2006. The appellant committed his next offence on 16th September 2006. This was in Luton. On that day a lady who was in the process of going to work decided first to buy herself a television set worth about £1,500. Because she was due to start work shortly after the purchase, she left the television set in her locked car at or near her place of work and then began her shift which was at 4.30 in the afternoon. At about 6.30 she was informed that her car had been broken into and when she went to investigate she discovered that the television set had been stolen. The appellant was soon implicated in this offence because he had cut himself when breaking into the car and he had left traces of his blood within the car which allowed a DNA match to be made. He was arrested on 30th October 2006 for this offence and made no comment when he was interviewed. 5. On 8th November 2006 he was again released on bail. The terms of his bail demanded that he surrender to the magistrates on 15th November, but again the appellant failed to appear. The day before, however, the appellant committed his next offence. Again it was the theft of an item from a motor vehicle. At about 6.30 pm on this day the owner of the vehicle in question parked it at a Travelodge in Burnt Oak - obviously because he intended to stay the night at the Travelodge. By 9.00 pm the car had been broken into and an item taken from it, that item being a charge unit for a satellite navigation system. On this occasion the appellant left a glove behind and again through a DNA match his involvement was ascertained in the offence. He was not arrested for it, however, until 25th May 2007. 6. Some days before that arrest the appellant committed a domestic burglary in North London. This offence occurred on 10th May 2007 and it was at the home of a retired couple. They left their home empty and secure at about 11.00 am on the morning of the offence and when they returned home in the afternoon they discovered that there had been a burglary. A satellite navigation system and a mobile telephone had been taken. The conservatory door had been jemmied open and that is how entry had been gained. Again forensic evidence was found which led to the appellant being interviewed. 7. For this catalogue of offences the individual sentences imposed were as follows. The three offences of theft and one offence of attempted theft in Slough attracted sentences of eight months concurrent. For failing to surrender to his bail following those offences the judge imposed a term of one month. In relation to the theft of the television from the car in Luton, the judge imposed a sentence of eight months and for failing to surrender to bail following that offence a term of one month. For the theft from a car in Burnt Oak the judge imposed a sentence of three months and for the burglary of the dwelling-house the judge imposed a sentence of 15 months. All the sentences, save for those in respect of the offences in Slough, were ordered to run consecutively, hence the total of three years. 8. At the time the appellant committed the offences in Luton, Burnt Oak and in North London he was on bail and subject to a community order. When he committed all his offences he was subject to a community punishment order which he had not completed. 9. The appellant came before the Crown Court because he had been committed for sentence. At the time of his sentence before the Crown Court he asked for 17 further offences of theft and three offences of causing damage to be taken into consideration. 10. On the basis of the pre-sentence report available, the principal mitigation advanced was that the appellant had pleaded guilty. It could not be said that he had done so at the first opportunity in relation to some at least of the offences, not least because he had failed to surrender to his bail, but of course he was entitled to some reduction in the sentence on account of his guilty pleas. 11. The appellant was aged 29 at the time of sentencing. He had been convicted by courts on six occasions before his appearance at the Crown Court but he had never before been sentenced to imprisonment. The likelihood is that his offending was motivated by the need to obtain money or goods with a view to buying drugs. 12. As we have said, the only ground which is pressed before us is that a total term of three years was manifestly excessive. No complaint has been made or could be made about the principle of consecutive sentencing in this case. To repeat, the attack is made simply upon the total sentence. 13. Some assistance is derived by the appellant from prison reports which have been provided to this court which show that he is making good progress in prison and which therefore demonstrates that some of the negative things said about him in the pre-sentence report may not have been wholly accurate. Nonetheless, in our judgment the issue we have to address is whether or not the totality of this sentence was in truth manifestly excessive. We recognise that it was a first sentence of imprisonment, but given this escalating series of offences, coupled with a failure to surrender to bail on two occasions, we are not persuaded that the total is manifestly excessive. We accept that the sentence is at the upper end of the appropriate range, but in our judgment it is no more than that. In all the circumstances this appeal must be dismissed.

2008_01_17-1333.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/114/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/114

8d085563c048c321e8fd464f593a8d100b9ac2cff0a59e2c45d9cb58052d8674

[2011] EWCA Crim 102

EWCA_Crim_102

crown_court

Case No: 2010/01373/D1 Neutral Citation Number: [2011] EWCA Crim 102 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT HULL MR RECORDER R MANSELL T20090178 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/02/2011 Before : LORD JUSTICE THOMAS MR JUSTICE SILBER and MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Frederick George Thompson Appellant - - - - - - - - - - - - - - - (Transcript

Case No: 2010/01373/D1 Neutral Citation Number: [2011] EWCA Crim 102 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT HULL MR RECORDER R MANSELL T20090178 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/02/2011 Before : LORD JUSTICE THOMAS MR JUSTICE SILBER and MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Frederick George Thompson Appellant - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7404 1424 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr A R Armbrister for the Appellant Miss C Sumnall for the Respondent Hearing date: 17 December 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: 1. The sole issue on which leave to appeal was granted is, as we shall explain, whether an indictment can be amended to add counts in respect of matters which have arisen after the date of the committal proceedings. At the conclusion of the hearing, we dismissed the appeal stating we would give our reasons later. These are our reasons. The facts and the course of the proceedings 2. On 21 December 2007 Trading Enforcement Officers visited the appellant’s premises in Hull. They found a number of toys made in China which had counterfeit marks; they were seized. Just under a year later on 29 November 2008, an Enforcement Officer visited the appellant’s premises and purchased four toys similar to those seized on 21 December 2007; they also had counterfeit marks. 3. Informations were laid and on 6 January 2009 summonses in respect of the seizure on 21 December 2007 were served on the appellant. On 3 March 2009 the appellant appeared unrepresented at Hull Magistrates’ Court; the case was committed for trial at the Crown Court at Hull with the PCMH at the Crown Court fixed for 27 March 2009. 4. On 27 March 2009 the appellant appeared at the PCMH at Hull Crown Court; he was arraigned on a nine count indictment charging him with nine separate offences of unauthorised use of a trademark contrary to s.92(1)(b) of the Trade Marks Act 1994 . Each of the counts charged him with exposing for sale a particular toy without the consent of the proprietor of the mark. Each count related to the toys that were seized on 21 December 2007. 5. On 11 May 2009 the trial date was fixed for 28 September 2009. 6. On 7 July 2009 warrants under the Proceeds of Crime Act 2002 were executed at the same premises of the appellant. Enforcement Officers found a quantity of toys identical to those that had been seized on 21 December 2007 with counterfeit marks. It was the seizure on this date that gave rise to the issue on the amendment, as we shall explain. 7. In August 2009 the appellant instructed his own solicitors. Papers relating to the matters charged in the indictment were served again on his solicitors. On 15 September 2009 statements were served on the appellant’s solicitors relating to the seizures on 7 July 2009 under a notice of additional evidence. 8. On 28 September 2009 the case came on for trial before Mr Recorder Campbell. The appellant asked for an adjournment on medical grounds; he was required to produce medical evidence. That was produced and an adjournment was eventually granted on 29 September 2009. During the course of the hearing, Mr Recorder Campbell directed that if the Crown wished to rely on the seizures that had been made on 7 July 2009, it should make an application to adduce that as evidence of bad character, such application to be served by 27 October 2009. 9. In that application (which was served a day late) the Crown relied on the gateways under s.101(c) and (d) of the Criminal Justice Act 2003 . All the evidence upon which the Crown intended to rely had been served, as we have set out, on 15 September 2009. 10. On 8 February 2010, the trial began before Mr Recorder Mansell. There was an uncontroversial amendment to add a count 10 to the indictment which charged a similar offence in relation to the seizures on 29 November 2008. 11. Mr Recorder Mansell expressed the view that if the Crown wished to make a case in relation to the seizures on 7 July 2009, counts should be added to the indictment in relation to those seizures; the Crown should not rely on the evidence in relation to the seizures as bad character evidence. Counsel for the Crown explained to the trial judge that counts had not been added to the indictment because, at the same time as toys with counterfeit marks were seized, the officers has seized counterfeit currency and extreme pornography and charges were to be preferred in respect of these much more serious offences. There was a concern that the Crown might not be able to pursue a prosecution of those more serious offences if counts were added to the indictment in respect of the seizures of the toys on that date. Mr Recorder Mansell made clear that he did not think that adding counts in respect of the toys with counterfeit marks would affect any future charges arising out of the more serious matters. Counsel for the Crown agreed to seek an amendment to the indictment adding two further counts, counts 11 and 12, charging the appellant with offences contrary to s.92(1)(c) of the Trade Marks Act 1994 of having in his possession in the course of a business with a view to sale various identified toys with counterfeit marks. 12. It is clear from the transcript of the argument before the Recorder that counsel on behalf of the appellant assented to this course. 13. The trial then took place. On 12 February 2010 the jury returned a verdict acquitting the appellant of the unauthorised use of a trademark on counts 1 to 10 but convicting him on counts 11 and 12. No sentence was then passed on the appellant nor had he been sentenced as at the date of the hearing of this appeal some ten months later. The view had apparently been taken that it would not be right to sentence him until the trial on the more serious matters (which is now scheduled for February 2011 having been delayed as a result, we are told, of the appellant’s bad health). Application for leave to appeal 14. An application for leave to appeal was made on two grounds, one related to disclosure and the second inconsistent verdicts. The single judge refused to grant leave on either ground. It is convenient to say that one was renewed before us, namely the contention that the verdicts were inconsistent. We have no hesitation in saying that the single judge was right to refuse leave as the verdicts were plainly not inconsistent. The toys seized on 7 July 2009 were identical to the toys seized on the earlier occasion and they had come, as the packaging showed, from the same factory; it was therefore impossible for the appellant to contend that he did not know they were counterfeit, as by the time of that seizure all the papers in respect of the seizures in 2007 and 2008 had been served upon him. 15. The single judge, however, granted leave to appeal on the question of whether the court had been right to grant leave to amend the indictment to add counts 11 and 12 as the offences post-dated not only the committal proceedings but also the PCMH. This was not a point that had been taken by counsel for the appellant. The authorities on amendment to add counts subsequent to committal 16. The power to amend an indictment is contained in s.5 of the Indictments Act 1915 which provides: “Where before a trial or at any stage of a trial it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice.” 17. S.32 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (AJA 1933) (as amended) permits a bill of indictment to be preferred if the requirements of subsection (2) are satisfied: (2) Subject as hereinafter provided no bill of indictment charging any person with an indictable offence shall be preferred unless either – (a) the person has been committed for trial for the offence; or ….. (ac) the person charged has been sent for trial for the offence under section 51 ….. of the Crime and Disorder Act 1998 ; or (b) the bill is preferred by the direction of the Court of Criminal Appeal or a judge of the High Court ….. Provided that - (i) where the person charged has been committed for trial, the bill of indictment against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed to the magistrates’ court inquiring into that offence as examining justices, being counts which may lawfully be joined in the same indictment ...” Provision similar to (i) is made for cases sent for trial. It is then provided by subsection (3) that a bill preferred other than in accordance with (2) is liable to be quashed. 18. In Osieh [1996] 2 Cr App R 145, this court considered the scope of s.2 of the AJA 1933 and s.4 and 5 of the Indictments Act 1915 when an argument had arisen as to whether it was possible to amend an indictment to charge matters that had arisen after committal and not disclosed to the committing justices. Schiemann LJ, giving the judgment of the court, concluded as follows: “The fact, if it be a fact, that the proposed amendment raises for the first time something not foreshadowed in the committal documents may be a potential ground for not permitting the amendment or, alternatively, only permitting it on terms as to an adjournment. It does not, however, operate as an absolute bar preventing a judge from permitting the amendment. The protection for an accused which is given by section 2 of the 1933 Act is, in effect, replaced by the judge’s discretion which, of course, has to be exercised within the confines of the Indictments Act and the rules made thereunder.” 19. In a characteristically powerful critique the late Professor Sir John Smith QC argued in an article entitled Adding Counts to an Indictment [1996] Crim LR 889 that the judgment was probably wrong in so far as it said there was such a power. He observed that it had been generally understood that any new counts must be founded on facts or evidence disclosed in the depositions, unless a “voluntary bill” was preferred by direction of a High Court Judge. He pointed out that earlier authorities ( Hall [1968] 3 All ER 1009 , Martin [1961] 2 All ER 747 and Johal and Ram [1972] 2 All ER 449), Morais (1988) 87 Cr App R 9, Biddis and McNeela [1993] Crim LR 393) had not been cited to the court in Osieh . In his view, what Schiemann LJ had said in relation to the power to amend was not necessary for the decision and was obiter , as the counts were in fact based on evidence that had been before the committing justices. 20. Osieh was then considered in a court presided over by Clarke LJ (as he then was) in Hemmings [2000] 1 Cr App R 360. After referring to criticism in the 2000 edition of Archbold which echoed the criticisms of the late Professor Sir John Smith QC, Clarke LJ observed, at paragraph 21, in relation to the conclusion of Scheimann LJ that, “These seemed to us to be very sensible conclusions.” He went on to add that: “It is not necessary for us to express a view upon the question whether the obiter dicta in Osieh are inconsistent with any of the cases referred to in that paragraph in Archbold . We are not here concerned with the question in what, if any, circumstances it is permissible to amend an indictment to include a charge not foreshadowed in the committal documents.” 21. The issue was next considered in R v Adams & Davy (14 June 2001), a decision only mentioned in Archbold News , but nowhere fully reported; we have the benefit of the transcript. Counsel for the appellant in that case drew the attention of the court to the decision in Ofori & Tackie (No.2) (1994) 99 Cr App R 223 which had not been cited in Osieh . Counsel submitted that the decision was inconsistent with Osieh . Laws LJ, in giving the judgment of the court, questioned how inconsistent Osieh and Ofori were. He said at paragraph 17: “If the whole of any evidence relied on is entirely new, quite separate and different from the material before the Magistrates Court, as likely as not that only could only give rise to a different case altogether against a defendant, and whether by strict application of Ofori or as a matter of general fairness, in principle the court may be likely to rule that the indictment should not be amended and the Crown should, if it chose, institute separate proceedings. But if the application to amend the indictment really does no more than take forward a case already laid on the evidence, reformulating it possibly with the assistance of some additional evidence, we doubt whether that would be improper. There are two principles here: one broad, one narrow. The broad principle is that at trial a defendant should face and only face essentially the case on which he has been committed even though it may be modified one way or another. The narrow principle is that an amendment to an indictment, like any other procedural step in the law of crime, should not be allowed if it is unfair to the defendant to allow it. In our judgment the result in the present case is clear enough whether one takes a strict view as to the power to amend or a looser one.” 22. The scope of permissible amendments was next considered in R v Mehmet , transcript 22 February 2002. After referring at paragraph 17 to criticisms made of the judgment in Osieh , Buxton LJ in giving the judgment of the court, continued: “We think it important to note that this court in Osieh stressed the wide latitude given to the court under section 5 of the 1915 Act . It would be extremely surprising if that latitude had been impliedly limited by a subsequent Act in 1933 that addresses a somewhat different subject matter. Secondly, however, we are unable to agree with Sir John [Smith] that the views expressed in this court in Osieh were obiter. That is because it is quite clear from the structure of the judgment that, although the court thought that as a matter of fact the new counts were founded on matters that had been before the justices, it is plain that they would have decided the case in the way that they did even had that not been so. In those circumstances, if obiter at all, the authority is only obiter in a very restricted sense and, as a considered decision of a previous constitution of this court, will be followed by this court unless there are good reasons for departing from it. In our judgement, no good reason is shown.” 23. Although Osieh was considered in R v DJJ [2006] EWCA Crim 946 , the court did not add anything material to the point we have to consider. The last judgment is the judgment of Sir Igor Judge, then President of the Queen’s Bench Division, who presided over a five judge constitution of this court in R v Mark Foster [2007] EWCA Crim 2869 . At paragraph 66 he referred to the decision in Osieh and pointed out that argument was not addressed to the court about the correctness and applicability of the decision. He referred to the judgment of Clarke LJ in Hemming and noted that the point would have to be examined in an appropriate case after full argument. In considering whether the indictment could be amended to include all offences on which a jury might convict at the conclusion of the evidence, he said: “To do so, overlooks the true purpose of an indictment, which is to specify the charges upon which the prosecution, not the court, is seeking a conviction or convictions. It would be likely to obscure the issues between the prosecution and the defence. It would complicate the task of the jury, which until that moment, would have been considering the evidence in the light of the charges actually included in the indictment, and it would complicate the summing up. It would also open up the possibility of additional counts being based on the evidence and at the behest of a co-defendant, and in theory at least, but subject to the unfairness principle, permit an amendment to allege a more serious charge. If the width of discretion suggested in Osieh is indeed available, the circumstances in which it may be exercised will be very rare.” The issue in this case 24. Although it was faintly suggested that the seizure on 27 December 2009 might be referable to the subsequent matters discovered on 7 July 2009 as the type of toy with the counterfeit mark was the same, it is clear in our view that this case raises for decision the question as to whether matters that have truly arisen after the committal can be added to an indictment by way of amendment. 25. In our judgment the court has power under s.5 of the Indictments Act 1915 to do so. First we consider that the analysis of Buxton LJ in Mehmet was correct and that the decision in Osieh was part of the ratio decidendi of the case and was not obiter . We have also considered again the analysis of Schiemann LJ and consider that analysis to be correct. 26. It seems to us that the wording of the Indictments Act, despite the cogent arguments of the late Professor Sir John Smith QC, is clear. S.5 confers a broad discretion. It is not subject to the provisions of s.2 of the AJA 1933; the restriction in s.2 applies to the signing of bills of indictment, not to an indictment’s subsequent amendment. The safeguards in s.2 are in respect of the signing of the bill; the safeguard at the stage where an amendment is sought is the judge’s duty to consider whether an amendment will cause injustice. 27. It is evident from the authorities to which Professor Sir John Smith referred that the general view of judges was that it was not possible to amend an indictment to add a count based on evidence not disclosed to the justices; a voluntary bill had to be preferred; the decisions are only explicable on that basis. Indeed it is evident that the court in Osieh was aware of the prevailing view as it said of counsel’s submission to this effect: “If they do so, then in our judgement, they are wrong.” 28. However, until the decision in Osieh, the point had not actually been considered, as Professor Sir John Smith acknowledged. The fact that the received wisdom was to the contrary was, of course, a powerful factor, but it did not and does not oust analysis of the statutory provisions. As we have stated, the wording of s.5 is clear; an amendment can be made to add a count where the evidence post dates committal or the PCMH, subject to the duty of the judge to consider whether it will result in injustice. 29. Although, in our judgment, there is the power to amend the indictment to add matters subsequent to the committal, we agree with the observations of Sir Igor Judge (as he then was) that circumstances in which it might be done are likely to be rare; it should be obvious at the PCMH if there are other matters and the issue then addressed. This is, however, one of those rare cases which has arisen in the circumstances which we have explained. 30. It was plain, in our view, that the issue that was to arise on the first day of the trial was one that had been obvious since the Crown had served, on 15 September 2009, papers in relation to the seizure on 7 July 2009. One Recorder took the view that the evidence could be adduced as bad character evidence but the Recorder who eventually tried the case took the view that this was not the proper way in which the matter should be dealt with, if justice was to be done. In our view, the second Recorder, Mr Recorder Mansell, was correct in his ruling that the only fair course to this appellant was that if the Crown wished to pursue allegations in respect of the seizures on 7 July 2009, he should be charged and indicted on those matters. If, therefore, that issue had been properly dealt with on 28/29 September 2009 there would have been ample time for a fresh committal to have taken place, papers to have been served, an indictment preferred in respect of those seizures and joined to the original indictment. Mr Recorder Mansell was right, as was conceded before us. If the appellant had not been indicted on those matters and the evidence adduced simply as bad character evidence, the appellant would have been subject to cross-examination on the matters and his cross-examination could have been used in subsequent proceedings where he was indicted with offences related to those seizures. 31. However, as this was not done, there was, as Mr Armbrister very properly conceded on behalf of the appellant, another course that could have been followed. On the first day of the trial in February 2010, the appellant could have been charged with the two matters relating to the seizures on 7 July 2009. A summons could have been issued immediately and Mr Recorder Mansell asked to constitute himself under s.66 of the Courts Act 2003 as a District Judge of the Magistrates’ Court. He could then have heard committal proceedings and committed the matter to the Crown Court at Hull. Provided he allowed the appellant’s defence team sufficient time to serve a defence case statement and ensured the defence team had all the papers (which it had in fact had for some months) there would have been no reason why an indictment could not then have been drawn up, signed and the appellant arraigned on that indictment. That indictment could then have been joined to the existing indictment and the matter could have proceeded. Judges on the North Eastern Circuit are prepared to sit as District Judges and errors of this kind could be dealt with in this way. 32. The real issue, therefore, on the basis that the court has power to amend the indictment in the way we have set out, is whether there is any prejudice or injustice to a defendant or to the fair and proper conduct of an orderly trial if this is done. In the circumstance of this case there was no conceivable prejudice. There was simply a failure of case management; all the matters should properly have been sorted out prior to the date of the trial through one of the routes to which we have referred so that at 10.30 a.m. on the date of trial the appellant could have been tried on the indictment upon which, in the event, he was actually tried. 33. However that is merely a criticism of the way in which the case was dealt with. The prejudice was to the efficient administration of justice and to the public purse, not to the appellant. We were told that all the hearings in this matter had taken place before Recorders as each of the judges in Hull had at times acted for the appellant who had a long history of convictions. It is a matter of considerable regret that this case was not dealt with by a full-time judge who would no doubt have managed in such a way that time would not have been lost in the trial in February 2010 and the issue on this appeal, interesting though it was, would never have arisen. Conclusion 34. We are satisfied that the Recorder acted within the discretion open to him in allowing the amendment to the indictment. We are satisfied that there was no prejudice whatsoever to the appellant and that the convictions are entirely safe.

2011_02_03-2623.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/102/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/102

2fc927f2018411f0835b25fda44ce9f895f2b48173c90f50e0ebf42613346ee2

[2012] EWCA Crim 1756

EWCA_Crim_1756

crown_court

Case No: 2011/04111/B2 & 2011/04113/B2 Neutral Citation Number: [2012] EWCA Crim 1756 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT HHJ JOHN T20107121 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/07/2012 Before : LORD JUSTICE AIKENS MR JUSTICE SWEENEY and MR JUSTICE SUPPERSTONE - - - - - - - - - - - - - - - - - - - - - Between : Daniel Terence GODDARD and Robin Jack FALLICK Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - -

Case No: 2011/04111/B2 & 2011/04113/B2 Neutral Citation Number: [2012] EWCA Crim 1756 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT HHJ JOHN T20107121 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/07/2012 Before : LORD JUSTICE AIKENS MR JUSTICE SWEENEY and MR JUSTICE SUPPERSTONE - - - - - - - - - - - - - - - - - - - - - Between : Daniel Terence GODDARD and Robin Jack FALLICK Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. C Parker QC & Mr. A Morris (instructed by Hines Solicitors ) for the Appellant Mr. J Price QC (instructed by CPS ) for the Respondent Hearing date : 13/07/2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens : 1. On Friday 13 July 2012 we heard appeals against conviction brought by Daniel Goddard and Robin Fallick, aged respectively 35 and 27. The appellant Goddard also appealed against sentence. All appeals were brought with the leave of the single judge. At the end of the hearing of the conviction appeals we announced that they would be allowed for reasons that we would set out in writing. These are our reasons. As Goddard’s appeal against conviction was allowed his sentence appeal became immaterial and we did not hear argument about it. The convictions and sentences 2. On 17 January 2011 in the Crown Court at Reading before HHJ John the two appellants pleaded guilty to a number of offences of making or possessing indecent photographs of children. They are not the subject of the present appeals but are relevant to them nonetheless. 3. On 23 June 2011 after a trial before HHJ John and a jury at Reading Crown Court the two appellants were both convicted of conspiracy to rape a child under 13. That allegation was the subject of count 1 on the indictment. The particulars of the offence stated that Goddard and Fallick “between 14 th day of September 2006 and 16 th day of September 2006 conspired together to rape a male child under the age of 13 years”. For that offence each appellant was sentenced to 6 years imprisonment. Goddard was sentenced to 6 months imprisonment for the indecent photograph offences, to be served consecutive to the conspiracy offence. The total sentence imposed on the appellant Goddard was therefore 6 ½ years less time spent on remand. Fallick was sentenced to a total of 14 months imprisonment for the indecent photograph offences, also to be served consecutive to the sentence of the conspiracy offence. Thus Fallick’s total sentence was 7 years and 2 months less time spent on remand. 4. Orders consequent upon those convictions and sentences were also made; in particular both appellants were subject to Sexual Offences Prevention Orders (“SOPOs”) and requirements to register as sex offenders. 5. The appellant Fallick was acquitted of making one indecent photograph of a child (level 1), which was the subject of count 16. The jury were discharged from giving a verdict on count 2 which was an alternative to count 1. That count alleged that Fallick had incited Goddard to rape a child under 13 years. On the prosecution’s case the child concerned was the same one as was the subject of count 1. The facts 6. The facts that gave rise to the charges started to come to light as a result of a police search of Goddard’s flat in Slough on 7 August 2007 when he was first arrested. His laptop was seized and was found to contain many indecent images of children which became the subject of counts 3 – 14 to which Goddard pleaded guilty. His mobile phone was also seized and analysed. A number of text messages from Fallick were found on it. Fallick’s number was stored on Goddard’s phone as “Rob in2 young”, which was interpreted as meaning “Rob into young”. 7. A number of text messages received by Goddard from Fallick dated 15 September 2006 appeared to represent one side of an exchange about raping a six year old boy. The exchanges start at 09.35 and go on until 15.10. They are as follows: Time (hour:min:sec) Message Fallick to Goddard 09:35 I need some help rapin a 6yo 09:37:06 Next friday night 09:39:57 Its rob in slough 09:41:53 tis ok. So your in? 10:46:27 He’s about 4ft dark hair and eyes, slim, toned stomach tight round ass and perfect legs. Really soft smooth skin and ruby red lips. 11:02:29 He’ll be with me, he’s 6 11:09:18 Next friday. Yes we can do stuff but we need to make sure he doesn’t drop us in it. i’m best friends with his mum, drug him is a poss? 11:12:45 He’ll be at school 11:34:46 Yeah all night. And maybe saturday too. 12:49:30 Your thick cock will open his mouth nicely for mine. i’ll open his ass ready for you. how many sleeping pills do you reckon 12:53:36 I thought about 3 or 4, to totally knock him out. finally a bit of kid fun at last. 15:10:24 Ya know wat, fuck the sleeping pills, i wanna hear him moan and scream. I don’t care if he says anything. I’m a pedo and proud.” 8. On 31 March 2009 both appellants were arrested; Goddard in Slough and Fallick in London. Fallick was found to have indecent photographs of children stored on a hard drive, laptop and memory stick. These formed the subject matter of counts 15, 17 and 18 to which Fallick pleaded guilty. The police also seized two cameras one of which contained a photograph of a girl, whom we shall call ML, taken in the garden of her home in July 2006. Fallick denied taking the photograph. It was said to be indecent and that was the subject of count 16 of which Fallick was acquitted. 9. Both appellants were interviewed on 31 March 2009. Both declined to answer questions. Their evidence at the trial was that this decision was made on the advice of their respective solicitors. 10. On 10 June 2009 the police visited Fallick’s home again and found further indecent images of children which had been downloaded since Fallick’s previous arrest. Those formed the subject of count 19 to which Fallick pleaded guilty. 11. Fallick was friendly with a woman called LL, who had three children. One was the girl ML and another was a boy called HL who had been born in May 2001. In September 2006 he was, therefore, 5 ½ years old. The prosecution case and the defence response 12. The prosecution case was that the text messages from Fallick to Goddard on 15 September 2006 which we have set out above were evidence of an agreement to rape a young boy. The prosecution also relied on evidence of text messages sent by Goddard to others, apparently showing an interest in raping young boys. The prosecution further relied on the convictions of the appellants of possessing indecent photographs of children as showing a keen sexual interest in young boys and also in demonstrating a willingness to break the law in relation to young children. Further evidence on which the prosecution relied to prove that this was a serious plan which was intended by both appellants to be carried out, as opposed to a fantasy, was the fact that there were text messages from Fallick which referred to a particular boy, whom the prosecution said was HL, the son of Fallick’s friend LL. The prosecution said HL was the target of the rape plan. The prosecution alleged that this boy was someone to whom Fallick had access through his friendship with the boy’s mother. There was evidence that Fallick had said to LL that the boy could stay with him, although in fact he had never done so. 13. The defence case was that there was no agreement to rape a child and that the text message conversations between the two appellants represented a fantasy from which each gained sexual pleasure and that there was never, either at the outset or thereafter, any intention to carry out any plan. The appellants relied on the fact (which was the case) that they had never met and that in the time that had passed between the exchange of messages on 15 September 2006 and their arrests on these matters in 2009, nothing at all had been done to carry out this alleged plan and the boy who had been the alleged target had not been harmed in any way. Application to dismiss count 1 and the trial 14. On 17 January 2011 the judge heard an application to dismiss counts 1, 2 and 16 of the Indictment, viz. the charge of conspiracy to rape a male child under 13, incitement to rape a male child under 13 and taking an indecent photograph of ML. In relation to count 1 it was submitted that it should be dismissed because no agreement to commit conspiracy to rape could be inferred from the evidence on which the Crown relied because the texts represented only one side of a text conversation between Goddard and Fallick. The judge rejected that argument. He gave reasons and noted that the argument had centred on whether, on the basis of the texts set out above, a jury could properly infer that there had been an agreement between the two defendants to rape a male child under 13. The judge accepted that there could be no speculation on what might be on Mr Fallick’s mobile. He continued, in relation to count 1 (page 3C-G): “It has been attractively argued on behalf of Mr. Fallick that if one puts together the issues of opportunity; capability; the passage of time between the sending of the messages and the analysis of the phone and intention, that there is no evidence to support a conspiracy between the two men and so the question for me, therefore, is simply whether there is evidence upon which a jury could, if it chose, safely infer that Mr. Goddard was responding positively to the suggestions in Mr. Fallick’s text that Mr. Goddard should assist him in the rape of an identifiable child. I have carefully considered both the content and the sequence of the text set out in the defence skeleton arguments. I am satisfied that it would be open to a jury properly to infer that a plan was being worked through between Mr. Fallick and Mr. Goddard, hence the request for clarification in some of the texts, and that it would be properly open to a jury to infer an agreement to participate in the planned rape from that content and that sequence of the texts which are available. I, therefore, reject the application to dismiss count one.” 15. The trial began on 20 June 2011. At the outset the Crown applied to adduce the guilty pleas to the indecent photograph offences as “Bad Character” evidence against the two appellants, pursuant to the “gateways” set out in section 101(1)(d) and (f) of the Criminal Justice Act 2003. The prosecution argued that the persistent downloading of images of child abuse at the relevant time made it more likely that the defendant concerned would seriously embark on the plans alleged in counts 1 and 2 (in the case of the appellant Fallick) and count 1 in the case of Goddard. Counsel for both defendants argued that the evidence of the indecent images was not relevant to the issue of whether the defendants were sexually interested in young children because that issue was conceded on the evidence of the texts. Mr Morris, who appeared at the trial for Goddard, submitted to the judge that the central issue that the jury would have to decide in relation to count 1 was whether there really was a plan to carry out the agreement which appeared from the texts or whether it was just a fantasy of the two men. He submitted that the indecent images could not be evidence that would assist the jury in deciding that issue: (page 18B-D of transcript). 16. The judge indicated his view, in argument, as follows (page 20H): “It is difficult, it seems to me, to say that two men who have been downloading over considerable periods material of this kind are not demonstrating a persistent interest in young boys and I would have thought an admission to that effect would be lest harmful to their case than the risk of what the Crown’s application entails”. Following these exchanges between the judge and counsel for the appellants, it was agreed that the evidence relating to the indecent images the subject of the guilty pleas should go before the jury as an agreed fact. 17. The prosecution then called its evidence. LL gave evidence that she was a friend of Fallick in 2006. She did not leave any of her children alone with him. She never asked him to babysit but he did say that if she needed a babysitter he would help. She said that Fallick had suggested that HL should stay with him on more than one occasion and HL had said that he would but when it came to it on each occasion HL would not go. 18. The “no comment” interviews were put in evidence, albeit rather more for what was not said than what was said. 19. At the close of the prosecution case the two appellants submitted that there was no case to answer on both counts 1 and 2. The judge rejected those submissions. He said that he was satisfied, for the reasons that he gave in his ruling in the dismissal application, that there was sufficient evidence to go to the jury in relation to counts 1 and 2. He said: “the evidence…is effectively the same as it was when I gave that ruling on 7 January [2011]”. 20. The two appellants gave evidence. Goddard explained that he had never met Fallick until the court case. He admitted that he had downloaded images of young boys from August 2005 to August 2007 and that he would look at them and pleasure himself. That gave him sexual gratification. His evidence was that he had chatted on-line to others about having sex with young boys but he said that he had never taken steps to have sex with children and had never wanted to have sex with any young child. 21. He agreed that he had been part of a text conversation with Fallick on 15 September 2006 and that he must have replied and asked questions which elicited the next response in the sequence. He may have said that he was interested in taking part but he was not, in fact. The text No 23 on page 120 of the exhibits (“he is about 4 ft” etc) from Fallick to Goddard would have been in response to him (Goddard) asking what the boy looked like. This would have been to make it realistic and was part of the fantasy. Goddard said that he would have asked “who is he” and “where is he” and then masturbated to the answers given. 22. In cross-examination on behalf of Fallick Goddard said that the contact with Fallick lasted about 2 weeks and then ceased. In cross-examination on behalf of the Crown, Goddard admitted that he had a persistent interest in young males and that the idea of having sex with them was exciting to him. He said that the idea of raping a young male was exciting to him but that he would not have actually done it. He agreed that when he was specifically asked in interview whether the text messages were fantasy, he had answered no comment, on the advice of his lawyer. 23. The appellant Fallick gave evidence that he had met LL in 2004. They became quite close and had been to one another’s homes. He accepted that he had met Goddard on a gay chat-line in September 2006. He agreed that the conversations were sexually explicit and that they dealt with young boys and that the purpose of them was to achieve sexual gratification whilst masturbating. He had never met Goddard and did not know where he lived. He said that the description in message No 23 was generic and did not relate specifically to HL. He would never have carried out what was implicit in the messages. He had no other discussion with Goddard apart from the message sequence that was before the court and he did not contact him after that sequence had finished. 24. In cross-examination Fallick accepted that he had a sexual interest in young males and that in September 2006 he had obtained sexual gratification from fantasies involving them. In answer to the question that his continued downloading of images of boys even after he had been arrested and when he knew it was contrary to the law showed that he had a strong and persistent interest in young children he answered “in context, yes”. He accepted that the idea of raping a young child was sexually exciting to him but that was only fantasy. He agreed that the text messages were detailed and realistic. He agreed that HL did indeed have dark hair and eyes. But he said that the description given in the text was generic and that it was a coincidence that it was similar to that of HL. The Grounds of Appeal 25. There are three broad grounds of appeal on conviction that are advanced by both appellants, on whose behalf Mr Christopher Parker QC appeared on appeal. (He did not represent the appellants at the trial). The first ground is that the judge was wrong to reject the submission of no case to answer at the close of the prosecution case. He should have accepted it because there was no evidence on which a reasonable jury, properly directed, could be sure that each of the appellants in question intended that any apparent agreement to rape a child should be put into effect. In Mr Parker’s phrase, there was no evidence of “executory intent”. As part of this ground it is argued that the judge failed to consider what prosecution evidence, if any, could be relied on by the jury to make them sure of this executory intent. 26. The second ground is that the judge failed to direct the jury in his summing up on the issue of how they should approach evidence of intent that was founded solely upon inference from the facts that were before them. It is submitted that the judge should have identified carefully the possible evidence that could found a conclusion by the jury that there was the necessary “executory intent” and he failed to do so. 27. The third ground concerns the “bad character” evidence. This ground breaks down into a number of points. First, it is said that this evidence (even in the form of admissions) should not have been permitted to go before the jury at all. Secondly it is submitted that the judge failed to direct the jury as to the area of its relevance or the limited purpose for which it could be used. Thirdly, the converse to that is also urged, namely that the judge erroneously directed the jury to the effect that they could rely upon making or taking indecent images of children to infer that the appellants intended that the rape should be committed. Lastly it is said that the judge failed to give the jury an adequate warning, in respect of this bad character evidence, against prejudice from revulsion induced by the indecent photographs of children that comprised this “bad character” evidence. Ground One: failure to accept submission of no case to answer on count one: the legal test 28. There was some discussion before us of the correct test that should be adopted in a case like the present when a submission of no case to answer is made. On behalf of the Crown, Mr John Price QC (who also did not appear at the trial) accepted that in this case there had, in fact, been no steps to carry out the agreement to commit the criminal act in question, viz. the rape of a male child under 13 years of age. It was, of course, common ground that the Crown had to prove that, at the time that the agreement to commit a criminal act was concluded, each defendant intended in fact to carry out the unlawful plan. It was further agreed that, in this case, that intent could only be inferred from other facts as proved; there was no direct evidence of such intent in relation to either defendant. 29. The long-standing test to be applied upon a submission of no case to answer is that in R v Galbraith [1981] 1 WLR 1039 at 1042B-D. The statement of Lord Lane CJ need not be set out yet again. In the present case it had to be accepted (for the purposes of the submission of no case at least) that there was sufficient evidence of an agreement to rape a male child under 13 such that a jury, properly directed, could so find. The key issue for the judge therefore, was whether, at the close of the prosecution case, there was sufficient evidence that a jury, properly directed, could infer that there was an intent on the part of each of the defendants, at the time the agreement was concluded, to carry out that agreement. 30. A similar issue arose in R v Hedgcock, Dyer and Mayers [2007] EWCA Crim 3486 , in which the three defendants were accused of conspiracy to rape a girl under the age of 16 and conspiracy to murder a girl under 16. The prosecution case in relation to Hedgcock and Dyer was based on internet conversations between the defendants in internet “chat rooms”, in the course of which Hedgcock sent to Dyer pictures of his goddaughter and sister, aged 15 and 14 respectively (although introduced over the internet as being younger). This court held that there was clearly evidence on which a jury could reasonably conclude that there was an agreement to rape a girl under the age of 16. The key question for this court was whether the judge should have accepted a submission of no case to answer, on the basis that there was insufficient evidence from which a jury, properly directed, could reasonably infer that the defendants had the “executory intent” at the time the agreement was concluded. 31. Laws LJ gave the judgment of the court. At [19] he said that there had been argument as to “the correct approach to be taken by a jury in a criminal case to an invitation by the Crown to draw an inference adverse to a defendant from primary facts”. He referred to a statement of Lord Diplock in Kwan Ping Bong v R [1979] AC 609 at 615G and statements of Moses LJ in R v Jabber [2006] EWCA Crim 2694 at [20]-[21]. Laws LJ said that he did not think that there was much difference in the result of both statements. He then said (at [20]) that “…Elementarily the jury must apply the criminal standard of proof to the exercise of drawing inferences as [they must] to every other facet of the fact-finding process”. Laws LJ continued, at [21]: “The question was whether a reasonable jury properly directed, not least as to the standard of proof, could draw the inference proposed and thus (as it was put in Jabber) reject all realistic possibilities consistent with innocence. That approach seems to us to be entirely consistent with Lord Diplock’s remarks. If at the close of the Crown’s case the trial judge concludes that a reasonable jury could not reject all realistic explanations that would be consistent with innocence, then it would be his duty to stop the case. What is the position here?”. 32. Laws LJ then considered the facts. He said, at [26], that in the “highly unusual circumstances” of that case, the jury could only conclude that the participants (to the “chat room” conversations) actually intended to carry out the agreement to rape if there was some extraneous evidence favouring that interpretation. The conclusion the court reached was that the internet conversations only carried the matter so far, but the other “objective circumstances” if anything pointed the other way. 33. The statements of Laws LJ in Hedgcock, together with those of Moses LJ in Jabber, were considered in the very recent decision of this court in R v Anthony Darnley [2012] EWCA Crim 1148 . In that case, the appellant had been convicted of a dwelling house burglary. The police had found a fabric handkerchief in the burgled house and when that was subjected to DNA tests it was found that the DNA profile consisted of a major DNA profile which matched that of the appellant and a minor profile. The prosecution said that this DNA evidence, together with his previous convictions (evidencing propensity) and his admitted relapse into drug use all led to the inevitable adverse inference that the appellant had committed the burglary. On appeal it was said that the judge was wrong to reject the submission of no case to answer. 34. Elias LJ gave the judgment of the court. At [18] he referred to the statement of Moses LJ in Jabber, at [21] of that case that “…to draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence”. He also referred to the statement of Laws LJ in Hedgcock at [21] set out above. Elias LJ stated, at [19], that when a judge is considering a submission of no case to answer, those “tests” (our quotation marks) should not be substituted for the classic test in Galbraith. 35. Elias LJ commented that Moses LJ, in Jabber, plainly did not intend to depart from the traditional test. Then, having made further quotations from the judgment of Moses LJ in Jabber, Elias LJ continued, at [21]: “…we think that the focus should be on the traditional question, namely whether there was evidence on which a jury, properly directed could infer guilt. It is an easier test, not least because it focuses on what a reasonable jury could do rather than what it could not do. Reasonable juries may differ because the assessment of the facts is not simply a logical exercise and different views may reasonably be taken about the weight to be given to potentially relevant evidence. The judge must be alive to that when considering a half-time application. Of course, if the judge is satisfied that even on the view of the facts most favourable to the prosecution no reasonable jury could convict, then the case must be stopped. As Moses LJ points out [in Jabber ] that conclusion will necessarily involve accepting that not all realistic possibilities consistent with innocence can be excluded. It does not, however, follow that the tests are equally appropriate or that either can be adopted by a trial judge”. 36. We think that the legal position can be summarised as follows: (1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the “classic” or “traditional” test set out by Lord Lane CJ in Galbraith. (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury. 37. Thus, in the present case, the vital question for the judge to consider was whether a reasonable jury could be entitled to infer, on one possible view of the prosecution evidence, that it was sure that each of the defendants intended to carry out the agreement to rape a male child under 13. However, it is plain, as Mr Price was prepared to accept, that this specific issue was neither identified nor dealt with by the judge either at the dismissal application or at the submission of no case to answer. Therefore, as counsel accepted before us, we have to examine the evidence, as adduced by the prosecution, to see whether or not there was evidence from which a reasonable jury could infer (on one possible view of that evidence) that each of the defendants intended to carry out the agreement to rape a male child under 13. No case to answer: the facts in the present case 38. Mr Parker made the following submissions: (1) he accepted that the messages are, on the face of them, capable of being read either as an agreement or as a fantasy. However, (2) he points out that they do not disclose whether the appellants had ever met before, or whether they were living in close proximity or whether they had any realistic means of effecting their plan. There was no prosecution evidence that they did meet either before or after the exchange. (3) The description of the possible child victim is generic. (4) He accepted that there was evidence from other messages that were sent or received by Goddard which demonstrated that he did obtain sexual gratification from the discussion with other men of child sexual offences, but that fact also was equivocal. (5) There was no extraneous evidence that either appellant had taken any steps to execute the plan during the extended period between the texts being sent (in 2006) and their arrest for the count 1 offence in 2009, so that there was no evidence of overt acts to support a conclusion that, at the time of the agreement to commit the unlawful act – if there was one – that there could be inferred on the part of each defendant that he intended to put the agreement into effect. In short, the prosecution evidence, at its highest, could not entitle a reasonable jury to be sure that it could infer that each of the defendants did intend to carry out the agreement evidenced by the text exchanges. 39. Mr Price, for the Crown, submitted that there was sufficient evidence. He relied upon the following facts in particular which he said would entitle a jury to be sure it could infer an intent to carry out the plan: (1) the text exchange itself. (2) The fact that there was no evidence of masturbation by the defendants when the exchange took place. (3) The fact that no visual pornographic material was exchanged between the two defendants (unlike Hedgcock). (4) The fact that Fallick knew LL (who described him as her “best friend”) and her son ML, who, it could be inferred, was the specific intended child victim. Fallick had given an accurate description of the child and had sought to be alone with him. (5) The fact that both defendants possessed indecent images of male children. This indicated their sexual interest in young boys and their willingness to break the law to pursue such interest. (6) The fact that both defendants had given “no comment” interviews and had not answered specific questions about whether this was a fantasy or not. In that regard Mr Price drew our attention to section 34(2)(c) of the Criminal Justice and Public Order Act 1994, which provides that when a court is considering whether an accused has a case to answer it can take account of the fact that he failed to answer questions in interview. Mr Price also drew our attention to section 38(3) of that Act which states that a submission of no case to answer cannot be rejected solely on the basis of such silence. 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. Conclusion on Ground One 41. Accordingly, we would allow the appeal on this first ground alone. The Other Grounds of Appeal 42. This conclusion makes it unnecessary for us to rule on the other grounds. However, we do wish to comment shortly on some aspects of those grounds and in particular on the directions given by the judge in his summing up in this case. The first concerns the issue of whether the defendants had any executory intent to carry out the agreement at the time it was made. The judge correctly identified this as an ingredient of the offence comprised in count 1 at 4F of the transcript. We appreciate that in most cases it is wise for a judge to give no elaboration on how to infer intent other than the general one that intent is to be inferred from what has been said and done and the surrounding circumstances. However, in the circumstances of the present case, where the prosecution case was that there was a conspiracy but it was accepted that the unlawful plan was not put into action, we think that something more is needed precisely because there was simply no evidence of any overt act to show that the plan was being or was to be put into operation. In such circumstances, particularly where the allegation (a conspiracy to rape a young boy) is likely to be repulsive to the members of a jury, we think that it is important that the judge should identify specifically and in one place in his summing up the sources of evidence that the jury could use in order to draw the inference that the two defendants intended, at the time the agreement was made, to carry it out. In this case the judge did not do so, nor did he specifically warn them that they had to be sure that there was the necessary intent, as opposed to this all being a fantasy. If necessary we would have allowed the appeal on that ground as well. 43. So far as concerns the admission of the offences of possessing indecent images of children as “bad character” evidence, we have three comments to make. First, it seems to us that the judge did not fully grasp the fact that there was no issue between the parties about the defendants’ sexual interest in young boys. That was clearly admitted. So there was no point in admitting those offences as “bad character” evidence on that issue. Secondly, the judge does not appear to have considered specifically whether the admission of those offences could be evidence of either an agreement to rape a male child under 13 or evidence of an intent to carry out the plan. The point was clearly identified by Mr Morris in the course of submissions during the application to admit that evidence. We think that if the judge had analysed the matter he would have been bound to conclude that the admission of those offences could not assist in relation to those two points, whereas their admission would be highly prejudicial to the defendants. In our judgment, they should not have been admitted, either pursuant to section 101(3) of the Criminal Justice Act 2003 or pursuant to section 78 of the Police and Criminal Evidence Act 1984. 44. Lastly, we consider that if that evidence had been properly admitted, the judge would be bound to give careful directions as to the proper and limited use that could be made of that evidence by the jury. The judge set out at 11C-E of the transcript of his summing up what the prosecution case was in relation the evidence of the indecent image offences, viz. that it demonstrated an unhealthy sexual interest in young boys and that made it more likely that what they were doing on that date in September was in earnest and showed a real agreement to rape a child. But the judge does not then give the jury a specific direction on precisely what that evidence could be used for. 45. In our judgment he should have given three directions. First, he should have stated that that evidence could not be used to demonstrate that there was an agreement as such. Plainly the independent possession of indecent images could not be evidence of an agreement between two people as to a proposed course of action. Secondly, he should have directed the jury that those offences could not be used as evidence of an intent to carry out the plan, for the same reason – they were independently obtained and did not relate to the plan at all. Thirdly, assuming that the evidence was properly before the jury at all, the judge should have given a careful warning that the jury must not, by reason of those offences, conclude that the defendants must have committed the conspiracy offence. He did not do that. Conclusion 46. The appeals are allowed and the convictions quashed. The convictions in relation to the other matters remain, but it is accepted by the Crown that in consequence of the appeals being allowed, the terms of the SOPOs must be amended. Paragraphs 2 and 4 are no longer necessary and must be deleted.

2012_07_27-3030.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1756/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1756

cad5b7ab0d5410cd04daf980db1e2bcc97fcac2fc4a07e3f4f46d98c0f304555

[2013] EWCA Crim 1852

EWCA_Crim_1852

crown_court

Case No: 201104699 C1, 201203592 C1 Neutral Citation Number: [2013] EWCA Crim 1852 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT - HIS HONOUR JUDGE PRICE and HIS HONOUR JUDGE GRIEVE QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/10/2013 Before : LORD JUSTICE PITCHFORD MR JUSTICE KEITH and MR JUSTICE BLAIR - - - - - - - - - - - - - - - - - - - - - Between : JAMES ARTHUR Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - -

Case No: 201104699 C1, 201203592 C1 Neutral Citation Number: [2013] EWCA Crim 1852 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT - HIS HONOUR JUDGE PRICE and HIS HONOUR JUDGE GRIEVE QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/10/2013 Before : LORD JUSTICE PITCHFORD MR JUSTICE KEITH and MR JUSTICE BLAIR - - - - - - - - - - - - - - - - - - - - - Between : JAMES ARTHUR Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr T Owen QC (instructed by Hughmans & Co.- Solicitors ) for the Appellant Mr M Gadsden and Mr J Brown (instructed by CPS ) for the Respondent Hearing date: 16 October 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : Introduction 1. On 29 July 2011 at Southwark Crown Court before His Honour Judge (“HHJ”) Price, the appellant, James Arthur, was convicted of conspiracy to supply a controlled drug of Class A, cocaine, contrary to section 1(1) of the Criminal Law Act 1977. On 5 October 2011 he was sentenced by the trial judge to 15 years imprisonment with a direction under section 240 of the Criminal Justice Act 2003 that 344 days should count towards his sentence. 2. On 5 August 2011 the appellant pleaded guilty to a charge of conspiracy to defraud by false representation (count 2) and conspiracy to commit a money laundering offence (count 3). On 9 May 2012 His Honour Judge (“HHJ”) Grieve QC imposed a sentence of 33 months imprisonment upon each count concurrent but consecutive to the sentence imposed by HHJ Price on 5 October 2011. 3. The appellant has leave from the single judge to advance a single ground of appeal against conviction for the drugs offence, namely that the judge misdirected the jury when giving them the majority verdict direction. Following the grant of leave the appellant added a further ground of appeal to the effect that non-disclosure by the prosecution had affected the fairness of the appellant’s trial. He seeks leave in respect of his additional ground. 4. The appellant sought leave from the single judge to appeal each of the sentences imposed. Leave was refused and he renews his applications for leave to appeal against sentence. The evidence at trial 5. Jointly with Billy Sales, Paul Lewis and Terry Francis the appellant faced an indictment charging them with an offence that on or before 10 October 2010 they conspired with Adam Wickham and others to supply cocaine, a Class A controlled drug. On 28 April 2011 they each pleaded not guilty but shortly before trial Sales, Lewis and Francis changed their pleas to guilty. 6. The appellant was tried before HHJ Price at Southwark Crown Court between 11 and 29 July 2011 when he was convicted by a majority of 11-1. At the sentence hearing before HHJ Price on 5 October 2011 Sales was sentenced to 10 years imprisonment, Lewis to 8 years imprisonment and Francis to 3 years imprisonment. 7. Having regard to the pleas of guilty of the appellant’s co-accused the jury started from the position that there was without question a conspiracy in operation. The issue was whether the appellant was a member of that conspiracy. The evidence comprised surveillance, telephone records and covert recordings of conversations between the appellant and Sales both face to face and by telephone. The recordings were the product of a probe inserted in Sales’ Range Rover car during the months of April, May and June 2010. On occasions telephone conversations between one occupant of the car and a third person could be heard at both ends of the conversation, either because a loud speaker device was being used in the car or because the third person spoke loudly enough for the probe to pick up his words. On other occasions only the words spoken by an occupant of the car were picked up by the probe. It was the prosecution case that Sales and the appellant could be heard in discussion which left no room for doubt that the appellant was one of the conspirators. The prosecution sought to establish the context of the appellant’s conversations with Sales by adducing also evidence of Sales’ approximately contemporaneous conversations with other conspirators. It was thus the prosecution case that the jury were listening to conversations that constituted the conspiracy in operation. The evidence was therefore admissible hearsay. 8. The jury was provided with some 32 separate transcripts containing over 160 pages of recorded conversation. The prosecution relied on a very limited number. However, the appellant’s defence was that he was engaged alone and with Sales in other criminal activity, namely a property fraud and the sale of counterfeit watches. As to the property fraud, vacant properties would be found. Ownership was hi-jacked by means of false documents and the properties sold fraudulently to third parties. Transcripts of conversations discussing the property fraud and watches were included in the jury bundles at the request of the defence. Where there was disagreement between the prosecution and the defence as to the accuracy of the transcript of words spoken, the jury was, by agreement, provided with the defence proposed transcript and invited to reach their own conclusion upon hearing the recordings themselves. The jury was informed by Detective Constable (“DC”) Frett that he had listened to a total of 90 hours of recordings and had transcribed conversations that appeared to be relevant for evidential purposes. 9. Having regard to the assertions made in support of the additional ground of appeal (that by reason of non-disclosure the fairness of the trial was compromised) it is necessary to refer in more detail to two particular chains of communication recorded by the probe. At 6.27 pm on 20 April 2010 Paul Lewis telephoned Billy Sales. The following conversation occurred: “Sales: Hello mate Lewis: How much are those things whole to me? Sales: What ones? Lewis: The ones you were going to give me for my mate. Sales: What the re-doers? Lewis: Yeah, the re-doers, yeah. Sales: There are two different types. The really, really good one for 32 quid and the other one was 5½ quid, a bit, a corner – so that times four - 21½. Get it off him for 21½. Lewis: I have got somebody who I reckon I can smash a few of them out. Sales: How do you want to do it? Lewis: What I will do – I will have the cheap one and I will do it to him at 25 so he can … rather than trying to get 30 and do one. I would rather do some at 25. You know when I used to get them for 25. You want to go and bolt everybody up. If you got them 30 in the first place you try to do them, you’ve got fucking no chance have you? Sales: Yeah I see what you are saying. Lewis: Whereas if you got them at 25 and do them for 30 you can have yourself 5. I have got one geezer who is a proper grafter. He’s one of Roll’s pals. Sales: They have not got glitter in them or nothing. Lewis: Have they got a stamp on them? Sales: No, they come in 4 corners. Lewis: Can you get me a corner so I can show him a corner and say look, this is how they come. Sales: Yeah, tomorrow.” (Binder 1, transcript 1, pages 2-4). 10. The prosecution case was that since Lewis and Sales had both pleaded guilty to the conspiracy it was tolerably clear that they were speaking about drugs. The prosecution also relied upon the evidence of Detective Constable (“DC”) Baxter who was employed at the Specialist Crime Directorate for approximately 15 years and had been closely involved in the investigation of drug trafficking offences for the last 20 years of his professional life. DC Baxter confirmed that he had a detailed knowledge of the drug trade including the jargon used by drug dealers. In connection with the passage we have extracted above DC Baxter gave evidence that the term “re-doers” referred to remixed cocaine. The reference to “32 quid” implied that the conspirators were talking about a price of £32,000 which, at the relevant time, would have been the market price for a kilo of remixed cocaine. When referring to “the other one” Sales was speaking of a different quality of cocaine whose price was “5½ quid” for a “bit”, or “a corner”. In context a corner meant a quarter of a kilo of cocaine; hence Sales’ reference to “21½”, being £21,500 per kilo. Lewis was referring to a preference for the “cheap one” at a price of £25,000. That would provide him with a profit of approximately £3,000 per kilo. DC Baxter explained that at the time of this conversation cocaine was commonly mixed with a bulking agent containing boric acid, the consequence of which was to give the drug a shiny or sparkly appearance; hence the use by Sales of the word “glitter”. A cartel exporting cocaine from South America to the United Kingdom would emboss the drug with a “stamp” whose presence signified that the drug was close to source and remained of high purity. 11. The prosecution submitted that the conversation demonstrated Lewis was seeking information from Sales as to the availability of cocaine by reference to quality and price. Lewis had a customer for the product. DC Baxter explained that to “smash out” the drug meant to sell it. 12. Immediately after Lewis ended his call to Sales, at 6.30 pm Sales made a telephone call to Arthur. There was no answer and at 6.31 pm Arthur returned the call to Sales. The following conversation took place: “Sales: Paul will pick that paperwork up and they are happy to do our one for what we can. Arthur: That will do then. So we don’t have to take it and show them. Sales: I recommend we should do, so we, in the future, if we decide not to use them – we can. Arthur: We can show it to them – we can show it to them anyway …. See you in the morning. Sales: No problem.” (Binder 1, Transcript 1, page 4). 13. The prosecution case was that Sales was immediately reporting to Arthur the effect of his conversation with Lewis. They were speaking of the need for the drug to be shown to a buyer. 14. At 6.32 pm Lewis again phoned Sales: “Lewis: What kinds have we got – I know about the cheap ones. What’s the other ones? Sales: They are in their jackets. Lovely jubbly 50/50’s. Lewis: How much are they? Sales: 32 quid. Lewis: 32 quid – 34 quid. Have we got the proper – how much are they? Sales: 50 quid. Lewis: What to us? Sales: Out the door at 50 … and 42½ … physical proper. Lewis: I’m meeting Raz. He’s a proper grafter and I trust him … So you remember Ian? … Remember I went on that meet in Essex with the Indians. We went to … in Greenwich, the one with the Mars bars. Well it’s him. Sales: Sweet, as long as it is all accountable, ‘cos I can’t afford to lose any more money. Lewis: I am not losing a tenner. Sales: Tell him the 50/50’s are 32’s, no sorry, they got to be 34’s or there is nothing in it. Lewis: Why don’t we start at 34.50?” (Binder 1, transcript 1, page 4-6). 15. DC Baxter was asked whether he could assist as to the use of the word “jackets”. He replied that he believed “jackets” was a term used when cocaine is wrapped in South America for trafficking. The purpose was to prevent the escape of any odour which could be detected by dogs. There may be a heavy wrapping of cling film and a rubber compound before completing with masking tape. DC Baxter interpreted Sales’ conversations with Lewis as discussing three different qualities of cocaine. A wrapped or jacketed block of cocaine would be sold at £50,000 per kilo. A remixed but good quality kilo of cocaine would cost £32,000; a lesser quality remixed kilo of cocaine would cost £21,500 if purchased in “corners”. DC Baxter could not tell simply by reason of the language used during Arthur’s conversation with Sales at 6.31 pm that their subject was the same as that discussed between Sales and Lewis. The defence tendered an alternative transcription of the conversation between Arthur and Sales in which Arthur said “Yeah, but we can show it to him, to the one, when it comes through on our I-phone, can’t we?” The defence contention was that accurately transcribed it could be seen that the conversation was more likely to be about forged or deceptive documents being prepared for a property fraud; images of documents would be sent to their I-phones. 16. At 4.59 pm on 26 April 2010, six days later, Arthur made a telephone call to Sales. As originally transcribed the prosecution suggested that the subject of the call was drugs. However, the defence submitted a transcript in which it was clear DC Frett had missed a reference to making a payment of money for “sigs”. This was a reference, the appellant explained, to signatures on documents held by the Land Registry. The property fraudsters needed to obtain copies of the signatures for the purpose of forging contract documents. Money was needed to bribe an employee in the Land Registry to provide those signatures. However, at the conclusion of the conversation Arthur said, “Alright then, get on the case and get some jackets put out, yeah”. He then suggested that Sales should “ring me in the office”. The prosecution contended that this was a reference by Arthur to a pay-as-you-go mobile telephone which Arthur used when discussing certain kinds of criminal activity. At 5.00 pm Sales did indeed telephone Arthur on his pay-as-you-go telephone number. Sales opened with the following observation: “Sales: Hello … the guy that used to see my Paki mate is in touch with Adam … because Adam reckons he will be able to do a couple, a few, a couple of them a week, every week … no problem at all. He got to see it yesterday, love it, loved the way it looked, loved the presentation, give it to someone … they was quite happy with the way it went, so … he’s just waiting for confirmation and yeah, will be able to do a few by the looks of them, be back to normal.” (Binder 1, transcript 12, page 10) 17. The prosecution asserted that following the Arthur’s reference to jackets, Sales rang Arthur back in order to bring him up to date with the drugs that were “out there”. The reference to Adam was to Adam Wickham, the person with whom it was alleged the defendants had conspired. Wickham was at large and had not been arrested by the date of trial. 18. At 5.04 pm Sales telephoned Wickham. This time, only Sales’ end of the conversation was recorded as follows: “Sales: Have you got a ETA for that job, Beckenham side? If I say 6.30/7.30. What do you think should I put those things in jackets? My ones. What do you reckon, do you want to speak to your brother. ‘Cos they are for another job. They are sitting there. They will do it for me but I need … I think that is the best way of doing it, don’t even bother about putting them in jackets ‘cos it looks like you are trying to fuck someone. Do you want to see how many you can do and when you can do them and what I can do? You know if you need to show them to anyone who you need to ring don’t you? I just want to get on with that job.” (Binder 1, transcript 12, page 12). 19. DC Baxter expressed the opinion that the conspirators were discussing how the drug should be presented to the buyer. Adam Wickham was expressing satisfaction. He discussed with Sales whether the drug should be presented in “jackets”. Sales resolved that the drug should not be presented in jackets because if they did the buyers would think that they were attempting to pass off poorer quality drugs as high purity. 20. The following morning, at about 10.25 am, 27 April 2010, Sales and Arthur were sitting in Sales’ Range Rover. The following conversation took place: “Arthur: What are we doing about some jobs mate? Sales: I will know today. Arthur: … I thought we only had two. How many did you have the other day. Sales: I don’t know, I never asked him. I had my load … I think three, so I just presumed three. Arthur: You might have done, never asked him. Sales: Adam is going to see two people today and give them bits and bobs. Arthur: Little samples. Sales: He said I am going to tell them what they are, they will be happy with what they are, let’s not put them in jackets ‘cos then it looks like we are trying to fuck people. Arthur: … fair enough some of it aren’t in jackets – I got some in jackets. I have got four in jackets and four without jackets. Sales: He reckons we can take a couple this week …” (Binder 1, transcript 13, pages 3-4). 21. DC Baxter explained that Arthur appeared to have 4 kilos of cocaine in “jackets” and, therefore, of high quality, and 4 further kilos without jackets, therefore of lesser quality. Sales appeared to be reporting that Adam would be providing samples to customers. Sales and Arthur were discussing the prospects of future sales. Later the same day, Sales and Arthur were again in Sales’ Range Rover. The prosecution contended that Sales and Arthur were discussing the prospects of future business in cocaine. The following conversation occurred: “Sales: I would like to get hold of my little Indian mates who were in Plumstead. They used to do some fucking work. … Arthur: How do you get hold of them? Sales: I am just trying to think who I could get hold of them. … Started to talk to him and it worked out that he was bang at it. I fired into him and I smashed it with him. Arthur: How can we get hold of him? Sales: I don’t know. Arthur: I have got a mate in Plumstead but he might still be in prison. I can’t remember his fucking name. What’s Thorny taken? Have you had any feedback off of him? Sales: He has put a few bits up but he is alright. He’s took that whole job … First of all he said come and get that other half but that’s right, the weekend, so he must of smashed it out of the weekend, give a few out and then people will come back and buy a bar instead of an ounce. Do you know what I mean one of them ones? Sales: So he should be up for two – get Adam to take two – that’s four a week that’s lovely. That will do alright. Arthur: That will do me. Sales: Every 10 days. Arthur: Yeah.” (Binder 1, transcript 16, pages 5-6). 22. DC Baxter explained that a bar was a generic term used for all drugs. In his view, the two men were speaking about cocaine. A bar of cocaine was 9 ounces or a corner. The person referred to as Thorny had given a few samples out which meant that people would come back and buy a bar rather than an ounce. Sales was calculating that Thorny should be up for 2 kilos. If Adam Wickham was able to take a further 2 kilos, they would be supplying 4 kilos of cocaine each week. The prosecution case was that Arthur’s response, “That will do me” was telling evidence that he was a partner with Sales in the ongoing conspiracy to supply cocaine. It was the defence case that although drugs were being discussed, to the appellant’s knowledge Sales was referring to cannabis and he, the appellant, was not involved. However, he could not explain what he meant when he said, “That will do me”. DC Baxter would not accept that the language used by Sales during the conversation could have referred to cannabis dealing. 23. The defence case was that the appellant was in partnership with Sales in business which was both legitimate and illegitimate. He accepted that he was a user of cocaine but denied that he had any involvement in the supply of the drug and denied also that he had ever purchased cocaine from Sales. He dealt in watches which he counterfeited as new by presenting them in wrappers or “jackets”. He was involved in the property fraud with Sales and others which involved hijacking the apparent ownership of unoccupied properties and making purported sales to third parties. It was the appellant’s evidence that the term “jackets” also refer to a package of forged deeds and documents which the conspirators needed to complete the frauds. He gave evidence that the word “show” was used to describe the presentation of such documents. “Samples” described samples of paperwork. In his summing up, the judge reminded the jury that it was common ground between the prosecution and the defence that their interpretation of these conversations depended entirely upon their judgment as to the context. They first had to be satisfied as to the words used, second that the appellant was discussing a conspiracy to supply cocaine, and third that the words used demonstrated that he was a participant. He reminded the jury that the point was made on behalf of the appellant that the prosecution relied on very limited snippets of conversation. Several others were inaudible. Furthermore, there were plainly occasions when Sales and Arthur were in communication with one another but their conversation was not recorded by the probe in Sales’ motor car. It was possible, the defence had submitted, that the jury was not hearing these conversations in their full context. Jury retirement and majority verdict direction 24. The jury retired to consider their verdict at 11.33 am on Thursday, 28 July 2011. Immediately before they retired the judge instructed the jury as follows: “Finally, ladies and gentleman, of course you have heard of majority verdicts. Will you forget about it? Please will you bring in a verdict which everybody agrees upon. If the time came, and I would discuss it with counsel, when we felt it possible to have a majority verdict we would let you know, but in the meantime take your time, read everything, come and have things played back if you want to. You are in charge, but try and reach verdicts which everybody agrees upon and forget about majorities. …” 25. At 2.15 pm while the jury was in retirement the judge informed counsel that they had asked to hear specific passages of some of the transcripts. It was agreed that they might use the court room for that purpose and arrangements were made for the recordings to be replayed. Thereafter the jury continued their deliberations in their room until 4.05 pm. At that point the judge released the jury for the day. 26. On the morning of Friday, 29 July 2011 the judge informed counsel that the jury had made a further request to listen to parts of the recordings. They re-commenced their deliberations, beginning with consideration of the recordings, at 11.31 am. 27. At 2.23 pm on 29 July 2011 the judge informed counsel that the jury had passed an oral message to the jury bailiff that they were not “getting anywhere”. He invited the views of counsel as to whether and when a majority verdict direction should be given. The judge resolved that the jury should be invited, in the first instance, to make any communication they wished with the court by means of a written note. At 2.37 pm the judge informed counsel that he had received a note from the jury which read: “Regrettably, after extensive discussions our jury have been unable to reach a verdict. Could you please advise or offer any alternative option?” 28. The judge observed that the jury were probably making an enquiry about a majority verdict direction, a proposition with which Mr Whittaker, for the appellant, agreed saying, “I could not argue against a majority direction”. He invited the judge to tell the jury that they were under no pressure of time and that if need be they could come back on Monday. The judge was informed that the jury had been in retirement for 7 hours and 39 minutes and he asked for the jury to return to court. Having ascertained that the jury had not reached a verdict upon which they were all agreed the judge gave them the following direction: “Members of the jury, I have had your note which I have read to counsel. I think the time has come when we could accept a majority verdict, but first of all, before I do that, I hope you feel no pressure on you for time and if this case has to go into next week it has to go into next week. Please try and reach a verdict on which everybody agrees. If after give and take and full discussion you honestly cannot do that then I can accept a verdict which at least ten of you agree. So please try and reach a verdict with which you all agree. Give and take, discuss as you will and continue to do, but if you cannot reach a verdict on which everybody agrees, I can accept one of which at least 10 of you agree.” 29. The jury retired to continue their deliberations at 2.41 pm. They returned to court at 4.10 pm to deliver their guilty verdict by a majority of 11-1. The misdirection 30. It is argued by the appellant that the judge’s majority verdict direction was flawed. By using the words “give and take” the judge was incorporating into his majority direction features of the Watson direction. There was no need to make reference to give and take because the jury had not yet had time to consider the impact upon their deliberations of the majority verdict direction. The Court of Appeal has said on several occasions that a Watson direction should not be given before or at the same time as a majority verdict direction. This was in any case an incomplete Watson direction. The judge failed to include an essential component of the Watson direction that emphasised the need for jurors to be faithful to the jury oath. The effect of the direction was to run the risk of placing pressure upon the jury to reach a verdict sooner than later. In the terms in which the judge directed the jury it was implicit that there were only two possibilities available, a unanimous verdict or a verdict by a majority. The judge did not recognise the third possibility, namely that no verdict at all could be returned if the jury could not, in conscience, reach the required majority. The cases 31. Our attention has been drawn to previous decisions of the court on the subject of the Watson direction. We must begin with Watson itself, [1988] QB 690. Lord Lane CJ, sitting with Sir Stephen Brown P, Watkins, Russell and Taylor LJJ, reviewed the use of the long standing direction employed to encourage juries to reach a unanimous verdict approved by the court in Walhein [1952] 36 Cr App R 167 . Lord Lane, delivering the judgment of the court, identified a danger that was inherent in the Walhein direction, namely that jurors may mistakenly construe it as encouragement to subordinate their own views to those of their colleagues, even if they did not accept them, for the sake of reaching a unanimous verdict, the only verdict available at the time Walhein was decided. Majority verdicts were introduced by the Criminal Justice Act 1967. The first half of the direction emphasised that argument, give and take, and the adjustment of views within the scope of the jurors’ oath was a necessary part of jury deliberations. Lord Lane observed that there could be no possible objection to such a direction to the jury. However, the second part of the Walhein direction emphasised the trouble and expense of a re-trial should the jury be unable to reach agreement. In the view of the court a direction of that kind was capable of placing improper pressure on the jury. The court concluded that the practice should be discontinued. Having examined the state of the authorities both before and after the introduction of majority verdicts, Lord Lane said at page 700: “This is an important matter of procedure and a reappraisal of the situation is overdue. One starts from the proposition that a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise. They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant the victim or the public in general if they do not do so. …” He continued: “In the judgment of this court there is no reason why a jury should not be directed as follows: ‘Each of you has taken a oath to return a true verdict according to the evidence. No-one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. The task is to pool that experience and wisdom. You do that by giving your views and listening to the views of the others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily, [10 of] you cannot reach agreement you must say so.’ It is a matter for the discretion of the judge as to whether he gives that direction at all and if so at what stage of the trial. There will usually be no need to do so. Individual variations which alter the sense of the direction, as can be seen from the particular appeals which we have heard, are often dangerous and should, if possible, be avoided. Where the words are thought to be necessary or desirable, they are probably best included as part of the summing up or given or repeated after the jury have had time to consider the majority direction”. 32. In Buono [1992] 95 Cr App R 338 the trial judge had, while giving the majority direction, also given the Watson direction, adding words that had been specifically disapproved in Watson , namely that it would be unsatisfactory from everyone’s point of view if the jury could not reach a verdict, at least by a majority of 10-1. Watkins LJ giving the judgment of the court, reiterated that the Watson direction would rarely be required. He added that it should be given in the course of summing up or after the jury had been given time to consider the majority direction. It should never, the court concluded, be given at the same time as the majority direction. Watkins LJ did not analyse what might be the unwelcome effects of giving a Watson direction at the same time as the majority verdict direction. Notwithstanding these strictures, the court was not persuaded that, read as a whole, the direction given would have caused the jury to feel under any kind of pressure. The court noted that after the direction had been given the jury deliberated for another 1 hour and 47 minutes before returning with their verdict by a majority of 10-1. 33. In Morgan (9700986WF, 26 March 1997) the jury received the majority direction at 2.08 pm. At 4.18 pm the Recorder called the jury back into court and addressed them in the terms of the Watson direction. However he added: “Let me just ask you. If unhappily 10 of you cannot reach agreement, you would say so but, if you feel you need time I would be happy for you to retire again.” There was no response from the jury and the Recorder continued: “I am not going to in effect invite you to answer that. What I will do is to ask you to retire now. As I say, once again, try and reach a unanimous verdict if you can, but if not at least 10 of you in agreement one way or the other. As I say, bear in mind what I have just said to you. It is a question of pooling your opinions and if you can do that – otherwise I will bring you back and ask you how you are making progress …” The Recorder then received from individual members of the jury five notes in which requests were made for messages to be passed on to family members and child minders. The Recorder indicated that he intended to permit the messages to be given. The jury returned to court at 4.45 pm and returned a verdict of guilty by a majority of 10-2. It was submitted on behalf of the appellant that the addition of words to the Watson direction had imposed improper pressure on the jury to reach a verdict. Rose LJ, Vice President, giving the judgment of the court, observed that the Recorder had prefaced his Watson direction with the assurance: “Do not imagine being called back in is to put any pressure at all on you.” While acknowledging that the suggestion the jury might immediately be able to reach a verdict was capable of placing pressure on the jury, the court concluded that its capacity to create pressure was immediately withdrawn. The Vice President continued: “We emphasise that judges should, as this court has said repeatedly, follow precisely the terms of the direction as laid down in Watson . If they do not do so, there is a risk that the verdict of the jury will consequentially be rendered unsafe, particularly if what is said can be construed as imposing upon the jury improper pressure to reach a verdict. In the present case, it seems to us that there is nothing either in what the judge said, departing though he did from the terms of Watson, or from the notes which the jury wrote shortly after, to suggest either that the jury was being placed under improper pressure, or that they thought that they were.” The court concluded that nothing had been done to render the verdict of the jury unsafe. We note that this was the first of the decisions upon the subject of the Watson direction cited to us that was made following the change to section 2 of the Criminal Appeal Act 1968 introduced by the Criminal Appeal Act 1995 (by which the sole test became whether the conviction was unsafe). 34. In Atlan [2004] EWCA Crim 1798 the jury informed the Recorder that they had agreed on three of the four counts in the indictment. It was, however, too early for a majority verdict direction to be given. At 2.50 pm the Recorder called the jury into court and directed them as follows: “I think the only assistance I can give you, if it’s assistance at all, is to ask you to go away and try a bit harder. I am afraid that the law doesn’t allow me to take a majority verdict from you at this stage. All I can say is that whoever is your foreman or woman needs to perhaps direct the discussion so that you all have an opportunity of saying what you want to say, and there might have to be a bit of give and take in your deliberations and your thoughts. I am afraid I can give you no further guidance than that. I cannot accept a majority verdict from you at this stage so would you go away and try a bit harder for a little bit longer.” At 3.40 pm the jury returned not guilty verdicts upon counts 1, 2 and 3, but a guilty verdict upon count 4. Keene LJ, delivering the judgment of the court identified the capacity of the words used by the Recorder to create undue pressure upon the jury to reach a verdict upon count 4 in the absence of a qualification that the jury must remain true to their oath. The effect was to invite compromise. The court expressed concern also at the timing of the direction, given as it was before the majority verdict direction was due. The court considered that the timing of the direction was likely to add to the sense of pressure upon jurors. Keene LJ concluded: “18. Ultimately the test which we, of course, have to apply is whether this conviction is safe. It seems to us to be relevant that the jury appears to have been unanimous by the time of its note that the appellant should be acquitted on all three other charges which he faced. They were divided on count 4. Following this direction by the Recorder, they ultimately convicted on that charge. Moreover, they were unanimous in acquitting the appellant on charges on which, if the parking attendant were to be believed by them, the appellant was apparently guilty. The criminal damage to the notebook is an obvious example of that. Had it not been for this direction there might well not have been a conviction on the common assault charge.” In these circumstances the verdict the jury returned upon count 4 was unsafe and the appeal was allowed. 35. In Dublin [2007] EWCA Crim 3240 the judge gave to the jury a partial Watson direction at the same time as providing them with a majority verdict direction, in the following terms: “I thank you for your note. I can say only this about its content (and effectively you scarcely need me to tell you it). It is important, if you can, to reach a verdict. It is important for the defendant, it is important for the witnesses, it is important for the public who may otherwise find themselves having to bear the cost of another trial. It is at least equally important that you should remain true to the oath that you took, each one of you, to reach a verdict in accordance with the evidence. This is, of course, the priority. So members of the jury, I have to ask you to retire once again. First of all, make a conscientious attempt to reach, if you can, a unanimous verdict. If you cannot, I can now accept a verdict which is the verdict of at least 10 of you. If it should turn out that it is impossible to reach a verdict upon which at least 10 of you are agreed then once it is plainly genuinely impossible, you had better send and let me know, but I have to ask you to make that effort.” Underhill J, delivering judgment of the court (Gage LJ, Underhill J and Sir Christopher Holland), said at paragraph 14 that the court fully endorsed what had been said by the court on previous occasions about the dangers of departing from the language prescribed in Watson and of the undesirability of providing a Watson direction at the same time as a majority verdict direction. However, it was necessary to: “Examine the circumstances of each case and see whether the course taken amounted to undue pressure on the jury in those particular circumstances.” A distinguishing and “crucial” feature of the case was that the jury informed the judge of the voting split and that the minority would not change their minds. The jury was asking “expressly for advice as to the impasse in which they found themselves”. In these circumstances the court expressed understanding why it was that the judge thought it necessary to do more than simply to provide a majority verdict direction. Underhill J concluded: “16. The question remains, however, whether the words which the judge used amounted to putting pressure on the jury. He started by emphasising the importance of reaching a verdict and mentioned in that context the cost and inconvenience to all concerned if there had to be a re-trial. It was that feature, in particular, in the Walhein direction that was thought in Watson to be potentially (though, we note, not necessarily) objectionable; and it might have been more prudent if the judge had accordingly not expressly referred to that feature. Nevertheless, he then went on to emphasis also the importance of the jurors’ remaining truthful to their oaths and he described that as the priority. Finally, and also importantly, in his concluding sentence he made it quite clear that he acknowledged that they might not be able to reach even a majority verdict.” For these reasons the court could not conclude that the jury might have felt under pressure to return a verdict contrary to their conscience. 36. A similar but not identical problem arose in W (Andrew) [2008] EWCA Crim 460 (Gage and Hughes LJJ and HHJ Paget QC). The judge provided the jury with a majority direction as follows: “First of all, it is in the public interest that there should be unanimous verdicts if you can possibly reach them, so I am going to ask you to retire and consider if you can possibly reach a unanimous verdict; one on which all of you are agreed. That will require those who are dissenting from whatever is the [apparent] simple majority to listen to each other’s arguments and exchange with care and mutual respect what lies at the heart of those misunderstandings or disagreements. If, having tried to reach a unanimous verdict, you still cannot do so, then I can accept a verdict upon which 10 of you are agreed.” 37. The court decided that the verdict of the jury was unsafe. First, the jury was considering four counts alleging the rape of a child under 13 years. There was an irreconcilable difference of opinion between the medical experts for the prosecution and the defence as to whether there was damage to the child’s hymen capable of supporting the prosecution case. Although the minimum period for delivery of the majority verdict direction had elapsed, in the view of the court the direction had been given far too early having regard to the issues with which the jury had to grapple. Secondly, the quasi- Watson direction was given at the same time as the majority verdict direction without the essential rider that the jury must remain faithful to their oath and to inform the court if they could not reach a verdict. 38. At the trial which preceded the appeal in Herbert [2009] EWCA Crim 2518 members of the jury in retirement sent a succession of notes to the judge which resulted in the prosecution making a submission that the jury should be discharged. After reflection, at the commencement of the second day of their deliberations, the judge called the jury into court and addressed them as follows: “Members of the jury I am sorry you have been kept waiting this morning. I have had a number of notes through and I want to explain to you how we are going to proceed. I have had notes from 2 jurors and I have spoken to 2 jurors who have got time commitments this afternoon which mean that we cannot sit beyond 1 o’clock today and I will call you back to court if you haven’t reached a verdict shortly before 1 o’clock. There is absolutely no pressure of time. If you do not reach a verdict by 1 o’clock you can come back on Monday fresh and continue with your deliberations. Absolutely no pressure of time whatsoever. It is not uncommon for jurors to separate when somebody has a commitment because you have lives outside of this court and the court accommodates those commitments wherever possible. Because of that and your deliberation process and your role as the jury is absolutely vital to this process that will be put into the transcript and [you] do not need to read it now. I have had another note from a juror who is finding the process of deliberation difficult and stressful and we know that it is a difficult and stressful task but you do it by discussion amongst yourselves by give and take, by concentrating on the evidence and reminding yourselves of the directions in law which I have given you which included the directions as to the burden and standard of proof and you will reach your decision in the fullness of time. Now I am going to ask you to go back and continue with those deliberations and as I indicated yesterday to continue to try to reach a unanimous verdict but it is important that you also remember I am not just going to leave you, I am thinking about you all the time and there is absolutely no pressure and your individual needs to the extent that we can are accommodated. I am conscious of the fact that you have lives outside this courtroom.” At 12.15 pm, the time at which the judge had indicated that she would give to the jury a majority verdict direction, the jury returned to court with a unanimous verdict of guilty. It was argued on behalf of the appellant that the judge’s reference to the need for “give and take” without the addition of the rider that the jury must remain true to their oath, exerted pressure upon the jury which rendered their verdict unsafe. The judge’s assurance that if the jury had not reached a verdict by 1 pm on Friday they could return on Monday to continue their deliberations could be seen as pressure to reach a verdict on Friday. 39. Aikens LJ, giving the judgment of the court, observed that several concerns had been expressed by individual jurors about their personal circumstances. The judge could not be criticised for dealing with those concerns and giving appropriate directions in the first part of her address to the jury on Friday morning. As to the principal argument that undue pressure was placed upon the jury he continued: “31. On Ms Levinson’s second argument we deal first with the judge’s reference to ‘give and take’. In our view that phrase should not have been used by the judge. If it is going to be used at all in this context, then it should be used in the context of the full, unaltered, Watson direction. But the question here, as in the cases reviewed in Watson, is whether the use of those words put pressure on the jury to come to a decision, almost any decision, even if it was not one which all the jurors really believed and was in accordance with their oath. We are quite certain that it did not do so. The judge not only went on to emphasis the need to concentrate on the evidence and the directions of law, but she emphasised that there was no pressure on them. The mere fact that the words, ‘give and take’ were used, although unwise and unfortunate, cannot in our view, by themselves mean the pressure of an improper kind was put on the jury.” The court did not consider that the judge’s reference to a continuation of deliberations on Monday, if necessary, can have had the effect of placing undue pressure on the jury to reach a verdict before 1 pm on the Friday. The appeal was dismissed. Mr Owen QC, on behalf of the appellant, submits that we should treat the decision in Herbert with some caution because it may be that the court’s attention had not been drawn to the previous observations of the court made in Dublin and W (Andrew). It was pointed out that the exhortation to apply give and take was given well before the judge intended to provide a majority verdict direction and that, when made, it did not include the essential rider that the jury must be true to their oath. We note that the only authority referred to in Aikens LJ’s judgment was Watson . We doubt very much that Watson was the sole authority considered by the court before reaching its conclusion on the facts. 40. In Pinches [2010] EWCA 2000 the trial judge, having discharged the jury from reaching a verdict upon count 1, and having been informed that the jury was deadlocked in relation to count 2, gave the standard Watson direction. Very shortly afterwards the jury returned with a majority verdict of guilty upon count 2 by 11-1. Moses LJ, delivering the judgment of the court, stated that while individual judges differed as to the wisdom of providing a Watson direction at any stage of a trial, it remained good law that it was permissible to give the direction, when appropriate in the trial judge’s assessment, at some stage after the majority verdict direction had been given. In those circumstances it was not possible to conclude, having regard to the approved terms of the direction given by the trial judge, that the jury’s verdict upon count 2 could be viewed as unsafe. 41. In Farooqi and Others [2013] EWCA Crim 1649 the trial judge, having concerns that as a result of a defence speech to the jury, the jury would not fully comprehend their responsibilities as jurors, elected in the course of his summing up to provide a direction in the Watson terms. The court (Lord Judge CJ, Tracy LJ and Sharp J) rejected the argument that it was inappropriate in the circumstances to give the Watson direction in the course of the summing up. At paragraph 151 Lord Judge made the following observations upon the use of the direction in any circumstances: “151. Care must be taken in relation to a Watson direction. There are particular dangers in departing from the wording approved by Lord Lane CJ, and difficulties arise if the direction is given in circumstances which appear to put pressure on a jury to agree when they may genuinely be unable to do so in accordance with their oaths. The cases illustrate that problems may arise if the direction is given prior to the majority direction, but after the jury has indicated some difficulty in reaching a verdict (see R v Atlan [2004] EWCA Crim 1798 ). It is also well understood that the direction should not normally be given at the same time as a majority direction (see R v Buono [1992] 95 Cr App R 338 ). In this case the judge did not deviate from the approved wording nor, since it was given on the first day of the summing which ran over 5 days, could it be thought that his direction was associated with some difficulty the jury were expressing in reaching unanimous verdicts.” Discussion 42. As the facts of some of these appeals reveal, some jurors find the process of deliberation towards a verdict to be onerous and stressful. Twelve members of the public, unknown to one another, are brought together for the first time for the purpose of assessing evidence, frequently contradictory and challenging, in order to arrive at a verdict. The process is almost certain to be unfamiliar to them. It is not uncommon for trial judges at the commencement of a trial, particularly a long or difficult trial, to provide the jury with an explanation of their role as jurors as an accompaniment to the warnings that the judge is bound to give as to their responsibilities as jurors. The judge’s words are explanatory only, referring, perhaps, to the fact that jurors bring with them their individual talents and experience to contribute to the task of assessing the evidence and reaching a verdict; that they should consider the evidence carefully as it is given, but should not reach any concluded view until they have heard all of the evidence, they have been addressed by the advocates and the judge, and they have discussed the case with the assistance of their fellow jurors; that in the process of deliberation each juror has an equal voice; that by analysis and discussion of the evidence the jury will reach their conclusions as to the relevant facts and, by applying the judge’s directions of law, they will arrive at an agreed verdict. In our view advice such as this is likely to be of assistance to the jury. It certainly carries no risk of pressure. Such an explanation is not given in the terms of the Watson direction since, at that stage of the trial, there is no occasion for anticipating any of the difficulties that sometimes arise while the jury is in retirement. 43. However, once the jury is in retirement it is of the first importance that no individual juror should feel under any compulsion or pressure to conform with the views of the majority if to do so would compromise their conscience and, therefore, their oath. Furthermore, the jury as a whole, despite the heavy cost and inconvenience of a re-trial, should not feel under any pressure to return a verdict if, conscientiously, they are not unanimous or cannot reach the required majority. When the court in Watson re-examined exhortations to the jury to return a verdict, it recognised that it had been possible since 1967 for the judge to accept a majority verdict. Parliament has provided for the circumstances in which a majority verdict can be accepted by the court. Majority verdicts are never accepted before 2 hours and 10 minutes has elapsed since the jury retired. Commonly, trial judges permit a substantially longer time to elapse before considering a majority verdict direction to allow for the evidential ground that the jury must cover before they could sensibly be expected to turn to their ultimate decision. Any interference with this process may have the effect of placing undue pressure on the jury to reach a verdict, either sooner rather than later, or at all, the consequence of which may be to encourage the minority to abandon their conscientious assessment of the evidence simply for the convenience of returning a verdict unanimously or, following the majority verdict direction, by the requisite majority. By introducing majority verdicts Parliament was alleviating pressure on the jury to be unanimous, the very pressure that the court in Watson considered could be the effect of the disapproved Walhein direction. It is undesirable to give a Watson direction before or at the time of the majority verdict direction because its effect may be to undo the benefit of the majority verdict direction for which Parliament has provided. Exceptional circumstances may arise that will require the trial judge to deal with the exigencies of the moment but, in general, there is no occasion to make exhortations to the jury to arrive at a verdict. This is why the Watson direction is rarely given by trial judges and, when it is, only as a last resort following a prolonged retirement after the majority verdict direction has been given. 44. As the decisions to which we have referred demonstrate, if complaint is made about the trial judge’s words of explanation, encouragement or exhortation the question for this court is whether the words used were appropriate in the circumstances or carried with them the risk that jurors would feel undue pressure to reach a verdict. If the effect of the judge’s direction to the jury is to create a significant risk that the jury or individual jurors may have felt under pressure to compromise their oaths, the verdict is likely to be unsafe. No juror should feel required to compromise their oath in order to fall in with the majority and no jury should feel under pressure to reach a verdict if to do so would require any one of them to compromise their oath. The danger is that all jurors, particularly the minority, will feel pressure to return a verdict unanimously or by an acceptable majority at the expense of conscientious consideration of the evidence. The closer the jury is to unanimity or to an acceptable majority the greater is the pressure to which the minority may feel exposed. As these decisions demonstrate each case must be considered on its own particular facts. 45. We turn, therefore, to consider the terms in which HHJ Price addressed the jury when giving them the majority verdict direction (see paragraphs 27 and 28). That the judge was giving the majority direction at all arose from his and counsel’s assessment that, having deliberated in retirement for over 7 hours, the jury wanted to know where they stood with regard to a majority verdict, something about which the judge had told them he would, if the need arose, give them further assistance. He opened his remarks by assuring the jury that they were under no pressure of time. He told them that they should feel under no such pressure; if necessary the court would return on Monday. Secondly, the judge told the jury that if after give and take and full discussion the jury could not “honestly” reach a unanimous verdict he could accept a majority verdict of 10. It seems to us that the judge was, by using the word “honestly”, conveying to the jury in a homely way that if they could not reach a unanimous verdict conscientiously, in other words in accordance with their oaths, the time had come when he could accept a majority verdict. By this means, in our judgment, the judge was adding the important rider as to the conscientiousness of the jury’s deliberations, the absence of which has been found in some of the cases to have been fatal to the safety of the verdict. We do not consider that the judge’s words could have conveyed to the jury that there were only two alternatives available to them, namely a unanimous verdict or a verdict by a majority. The jury had specifically asked for the judge’s assistance at a time when they were unable to return a unanimous verdict. The judge’s assistance was directed to the question whether and, if so, by what majority the court was permitted to accept a majority verdict and to nothing else. It is clear from the context, in our view, that the judge was not addressing the further eventuality that the jury might become deadlocked; neither do we think that the jury could have understood the judge’s words as dealing with that eventuality. The judge was merely answering their enquiry for assistance as to majority verdicts. 46. Mr Owen QC for the appellant and Mr Gadsden for the respondent each made submissions as to the way this court could interpret the progression of the jury towards their verdict. Mr Gadsden submitted that the fact that the jury returned a verdict of 11-1 provides some evidence that the jury never was deadlocked. The probability is that the jury, being divided 11-1, tried, following the majority verdict direction, to reach a unanimous verdict, but in the result managed a verdict only by the stated majority. Mr Owen submitted that there is at least a possibility that the jury were evenly divided but that, labouring under the prospect of having to return for a fourth week, they felt under pressure to return a verdict on Friday. In our view, there is little to be gained from a speculative consideration of events. We cannot know what the numerical division of opinion was at the time when the jury asked for assistance. What is notable, however, is that the jury remained in retirement for a further period of about 1½ hours after they had received the majority direction. No indication was given by any member of the jury that personal difficulties would arise if their deliberations continued into Monday. There is, in our judgment, no reason to conclude that the jury may not have given conscientious consideration to the evidence and their verdict once they had been informed of the majority that must be attained before a verdict could be returned. 47. The jury had asked specifically for the judge’s assistance. It was Friday afternoon. The judge accepted Mr Whittaker’s concern that the jury should not feel confined by the time available that afternoon. Accordingly, he reassured them in this respect. There was, we consider, no need for the judge to add any words of encouragement to reach a unanimous verdict save for the conventional direction that they should endeavour to reach a unanimous verdict but if they could not then the court could receive a verdict by a majority of at least 10-2. The full Watson direction was not given. It is common ground that it would have been inappropriate to give it. In the result we accept Mr Gadsden’s submission that the words actually used by the judge added almost nothing at all to the advice that the jury would have received in a standard majority verdict direction. While again expressing disapproval of the addition of words which were unnecessary we do not conclude that the judge’s references to give and take and honest consideration of the evidence rendered the jury’s verdict unsafe. Additional ground of appeal 48. In a separate trial of Gary Moore in 2013 upon a charge of conspiracy to commit property fraud admitted by the appellant in the course of his own trial for conspiracy to supply class A drugs, it was discovered by an expert, Mr Philip Harrison, instructed on behalf of Mr Moore that, contrary to the understanding of the court in the appellant’s trial, further recordings had been made by the probe in Mr Sales’ car that had not been disclosed to the defence. It is now agreed that some 30 files amounting to 15½ hours of audio product was present on a master disc that was not disclosed to the defence. Some five files recording conversations which took place on or around 20 May 2010 had been irretrievably lost. Thirdly, six files dating from 25 June 2010 that had been disclosed could not be found on the master or working copy discs from which the original material had been copied. It is submitted that these acknowledged failures demonstrate that the evidence given by DC Frett as to the completeness and provenance of the recordings was inaccurate at best. It was the appellant’s case at trial that the prosecution was relying upon a tiny proportion of the recorded material to support its assertion that the appellant conspired to supply class A drugs. In support of the appellant’s case that he was engaged in a property fraud but not a conspiracy to supply drugs it was pointed out that on many occasions during the 90 hours of recording of which the jury was aware the probe was unable to identify conversation. It is now submitted that if the jury had been aware that there was yet further material the appellant’s case would have been further supported. 49. While acknowledging an inadvertent failure to make proper disclosure of all the material available to the prosecution Mr Gadsden submits on behalf of the respondent that had the jury been made aware of the additional material it would have made no difference to their consideration of the issues raised at trial. The prosecution accepted the appellant’s assertion in evidence that, inevitably, there were conversations taking place between the appellant and Sales which were either not picked up by the probe or had taken place at a distance from the car. It followed that the point was legitimately made on behalf of the appellant that the jury could not know about all conversations which took place between the appellant and Sales upon the subject of their transactions, lawful or unlawful. Furthermore, save for the five missing files the appellant had long ago been provided with all the undisclosed material. If, therefore, it revealed any conversation which cast light upon the appellant’s case it could now be demonstrated. As to the five missing files recorded on or about the 20 May 2010, any conversation recorded was distant in time from any of the conversations upon which the prosecution relied. There was, in the submission of the respondent, not even a remote prospect that material then recorded could illuminate the correct interpretation of conversations between Sales and the appellant that took place on 20, 26 and 27 April 2010. 50. The appellant identified four areas in which the undisclosed material may have been regarded by the jury as relevant to their consideration of the appellant’s case. Firstly, it was contended by the prosecution in opening the case to the jury that the term “bags” was a reference to a quantity of cocaine. A reference by Sales in one of the undisclosed recordings to a “bag of sand” made it clear that the term “bags” could refer to money rather than drugs. However, it was demonstrated during the course of the evidence at trial that the word “bags” was used as a form of slang for money. So much was conceded by the prosecution. Accordingly, the contents of the undisclosed recording could have added nothing of significance to the defence case. 51. Secondly, in the course of an undisclosed recording made on 26 May Sales is heard arranging a meeting between himself and a man called Haroon at a property in Clapham. This is said to be a derelict property involved in the property fraud. At trial Mr Gadsden had put to the appellant in evidence the prosecution case that a text written to Adam Wickham concerning a property in Clapham was related to the drugs conspiracy rather than the property fraud. The appellant responded that there was an earlier passage on one of the discs that had been disclosed to him that supported his assertion. The appellant contends that the undisclosed conversation with Haroon adds support to his evidence that the property in Clapham had nothing to do with a drugs conspiracy. The respondent contends that there could have been no relevant connection between the issue on which the appellant was cross-examined and a meeting arranged some 30 days later, not between Sales and Adam Wickham but between Sales and Altaf Haroon. 52. Thirdly, on one of the undisclosed recordings Sales can be heard talking to a Rory Hogan, a co-defendant in the property fraud, using the term “sample” in a context which made it clear they were talking about samples of paperwork. It is submitted that had the jury been aware of this alternative use of the word “sample” they may have arrived at a different conclusion upon the use of that term in the passages of conversation upon which the prosecution relied at trial. In response, Mr Gadsden relied upon the chain of conversations to which we have referred earlier in this judgment. It is submitted that there was no prospect that the jury could have confused the sense in which the word “samples” was used in that context. The further material in the undisclosed recording would simply have confirmed that which was common ground between the prosecution and defence at trial, namely that the jury’s interpretation of words depended upon their judgment of the context in which they were used. 53. Fourthly, in the course of an undisclosed conversation on 26 April Sales is heard discussing the purchase of grams of cocaine for personal use. It is submitted that this may have had the effect of undermining the prosecution’s case that neither Sales nor Arthur would be interested in buying cocaine for personal use when they were already in possession of large quantities of cocaine that they were dealing in kilos. It was Mr Gadsden’s submission to the jury in his final speech that it was remarkable that Arthur, an acknowledged cocaine user, should insist that he had never purchased cocaine for personal use from Sales. The point being made by the prosecution on an issue of credibility was different from that which, it is asserted, Sales’ personal use may have undermined. In any event, it is submitted by the respondent that since Sales had pleaded guilty to the conspiracy to supply cocaine it was neither here or there that he may have discussed purchasing an odd amount for his own recreational use. The undisclosed conversation would have had no significant impact upon the appellant’s case at trial. 54. Finally, it is submitted by Mr Owen QC that in the course of his closing speech to the jury on 27 July 2011, prosecuting counsel asserted that there was no evidence that Gary Moore was involved in the property fraud, yet Gary Moore was subsequently charged with the property fraud. Accordingly, the jury were misled as to the state of the evidence relating to Gary Moore. Mr Gadsden in fact addressed the jury not upon whether Gary Moore was involved in the property fraud but upon changes in the appellant’s evidence as to whether he or another “Gary” was or not involved. In other words, the respondent was seeking to demonstrate that the appellant had been utterly inconsistent as to who was the “Gary” who was involved in the property fraud. In the middle of his evidence the appellant changed his account having had the weekend to reflect. The respondent had been making no assertion whether or not Gary Moore was implicated. 55. We have considered each of these competing submissions. We conclude that none of the features of the undisclosed material identified on behalf of the appellant, nor Mr Gadsden’s reference to Gary Moore in his final speech, can have had any material effect upon the jury’s consideration of the question whether in the chain of conversations on which the prosecution relied it was demonstrated the appellant was implicated in the conspiracy to supply cocaine. Conclusion 56. For these reasons we refuse leave on the additional ground and dismiss the appeal against conviction. Application for leave to appeal against sentence 57. Sales and Lewis pleaded guilty to the charge of conspiracy to supply cocaine on 1 July 2011. Counsel for Francis was not available but an indication was given to the court on 1 July that he too would be pleading guilty, which he did on 4 July 2011. The prosecution accepted that Francis was to be sentenced on the basis that he was involved as a courier only, mainly working for Adam Wickham. Sales and Lewis put forward bases of plea that amounted to a wholesale challenge to the prosecution case. A Newton hearing took place on 3 October and 4 October 2011 during which Lewis gave evidence and Sales made submissions about the effect of the prosecution statements of evidence. HHJ Price concluded as follows: “I am quite sure that there was a conspiracy, not in a limited way, kilos of cocaine and some were in fact supplied. The conspirators had a source of supply and a place to store the drugs. The fact that none were discovered does not mean that they did not exist…I am sure the conspiracy involved the potential supply of multiple kilos of cocaine and that there had been one or more kilos actually supplied. I believe this was an active conspiracy and that Mr Arthur and Mr Sales believed it could bring in £300,000 per year.” 58. Despite the lengthy Newton hearing the judge informed Sales and Lewis that because the case was complex and they had been in custody awaiting sentence he would give full credit for their pleas of guilty. He held that Sales and Arthur were at the heart of the conspiracy. He took as his starting point 15 years custody. Sales received full credit for his plea and his sentence was, therefore, 10 years imprisonment. The judge found that Lewis was next in the hierarchy. His starting point was 12 years and, after full credit for plea, his sentence was 8 years imprisonment. Francis acted as a courier for a limited period. He was a man of good character who had served in the armed services in Iraq. After full credit for his plea the sentence was 3 years imprisonment. 59. The appellant Arthur does not challenge the judge’s assessment of his prominent role in the conspiracy he identified. He argues that his co-accused were afforded such a generous allowance for their guilty pleas that his own sentence of 15 years imprisonment appears unfairly disparate. 60. In Caley [2012] EWCA Crim 2821 , [2013] 2 Cr. App. R. (S.) 47 the court (Hughes LJ Vice President, Wilkie and Popplewell JJ) reconsidered the approach to the award of credit for a guilty plea in a range of circumstances, including where a Newton hearing had taken place. The Vice President said, at paragraphs 26 and 27: “26 The Guideline expressly stipulates at para.4.3(iv) that if the trial of an issue by way of Newton hearing is necessary because the defendant asserts a false basis of plea or otherwise disputes a part of the case against him, then if his case is rejected that should be taken into account in determining the level of reduction for plea of guilty. This is only commonsense. The reduction is to recognise the public benefits which flow from a plea of guilty. If despite a plea to the indictment the defendant insists on a version of events which calls for a trial of the issue before the judge some witnesses may well have to give evidence and even if they do not court time will be taken up and further preparation by the Crown will often be necessary. Of course, if the Crown cannot prove its version, the defendant's reduction for plea of guilty will be unaffected. But if the defendant fails, the converse follows. It is of no little importance to the administration of justice that where bases of plea which will affect sentence are tendered, judges should decide the facts. It is particularly important that unrealistic bases of plea should receive no incentive. 27 We do not think that it is either necessary or possible to attempt to lay down a rule as to what (if any) reduction for plea should survive an adverse Newton finding. It will depend, as it seems to us, on all the circumstances of the case, including the extent of the issue determined, on whether lay witnesses have to give evidence and on the extra public time and effort that has been involved. Some cases involve little more than an assertion in mitigation which the judge is not minded to accept at face value, so that the defendant is given an opportunity to give evidence about it, often (sensibly) there and then. In that case, the reduction ought normally to be less than it would have been if the (false) assertion had not been made, but significant reduction for a plea of guilty will, we anticipate, normally survive. Other cases may be ones where something akin to a full trial has to take place, with full preparation by the Crown, lay witnesses having to be called and considerable court time taken up. In such a case, the reduction for plea of guilty which survives is likely, we suggest, to be very small, and may be none at all. In between there may be a considerable range of situations. These must be left to the informed judgment of the sentencing judge.” 61. The Vice President’s observations expand upon the guidance previously given in Underwood [2005] 1 Cr App R 13 (Judge LJ, Douglas Brown and Bean JJ). 62. The appellant’s argument implies that Sales and Lewis, having engaged in an unsuccessful two-day challenge to the prosecution’s case against them, had largely dissipated the credit due to them for their guilty pleas. The effect of the judge’s generosity towards them was to produce sentences that were unfair to Arthur and, accordingly, Arthur’s sentence of 15 years imprisonment was wrong in principle or manifestly excessive. Rarely, in our view, will the assessment of credit for a guilty plea in favour of one defendant, even if it is over-generous, provide a ground of appeal in the case of another to whom, admittedly, no such credit is due. Arthur’s trial lasted just over three weeks. The Newton hearing for Sales and Lewis lasted two days. Sales, Arthur’s direct comparator, did not give evidence. He invited the judge to examine the written evidence for its capacity to establish the basis upon which the prosecution contended Sales should be sentenced. We accept that the judge’s decision to award Sales full credit for his plea was generous, perhaps over-generous, but the assessment was, as the court commented in Caley , for the sentencing judge to make in the particular circumstances of the case. We do not conclude that the judge’s generosity towards Sales upon the assessment of credit due rendered the sentence in Arthur’s case unfair. Arthur was undoubtedly entitled to no credit at all and he was a leading member of the conspiracy. We do not consider that the sentence upon Francis is relevant. Both the factual basis for sentence and Francis’ personal mitigation were of a different order. 63. On 5 August 2011, following his conviction for the drugs conspiracy, Arthur pleaded guilty to a charge of conspiracy to commit fraud by false representations and a charge of conspiracy to launder money. Counsel for Arthur invited HHJ Price to sentence for all matters but sentence was adjourned to await the outcome of the trial of others charged with the fraud conspiracy before HHJ Grieve QC. 64. Arthur appeared for sentence together with Sales and Lewis before HHJ Grieve QC on 9 May 2012. The conspirators, the judge held, had targeted unoccupied properties, former family homes, whose owners were frequently old and infirm and living in care. They would pass themselves off as owners and make fraudulent sales to third parties. Nine properties had been identified but there had been others. Of these properties five had been sold for a total price of £1.2m. The judge found that Sales was the driving force behind the conspiracy and that Arthur was his partner. He acknowledged that Arthur may not have been involved in every property. In the course of the enterprise a bank manager, solicitor and Land Registry employee had been corrupted but the judge accepted that Arthur had not been directly involved in their corruption. He observed only that Arthur could be heard in one of the recordings discussing with Sales the corruption of a further bank employee. The judge found that in common with others Arthur had a callous disregard for the welfare of the true owners of the properties. The judge’s starting point in Arthur’s case was 6 ½ years custody reduced to 4 years 4 months for his guilty plea. The fraud conspiracy was entirely separate from the drugs offence although it overlapped in time. A consecutive sentence was required but it would be reduced to 2 years 9 months upon both counts, concurrent with each other but consecutive to the term of 15 years imprisonment Arthur was already serving. 65. The appellant contends that HHJ Grieve QC failed to make a sufficient discount in application of the principle of totality. The judge’s obligation was to reach a sentence that fully reflected Arthur’s offending but was, on reflection, just and proportionate. In our judgment it is not arguable that the judge erred either in his approach or in the outcome. Conclusion 66. We agree with the conclusions of the single judges who refused leave. It is not demonstrated that the sentences in Arthur’s case were wrong in principle or manifestly excessive either individually or in total, and the renewed applications are refused.

2013_10_29-3271.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1852/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1852

0dac82b4695d1f0d3c91a0cbb94208a1a2f15de2ad4669347876f0326721698a

[2012] EWCA Crim 16

EWCA_Crim_16

crown_court

Case No: 201004875D4 201004952D4 201006872D4 Neutral Citation Number: [2012] EWCA Crim 16 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT MR JUSTICE JACK T20107437 T20100665 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/01/2012 Before: LORD JUSTICE AIKENS MR JUSTICE MADDISON and HIS HONOUR JUDGE STEPHENS QC - - - - - - - - - - - - - - - - - Between: (1) Sukwinder Singh Sanghera (2) Jasbit Singh Takhar Appellants - and - R Respondent - - - - - - - - -

Case No: 201004875D4 201004952D4 201006872D4 Neutral Citation Number: [2012] EWCA Crim 16 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT MR JUSTICE JACK T20107437 T20100665 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/01/2012 Before: LORD JUSTICE AIKENS MR JUSTICE MADDISON and HIS HONOUR JUDGE STEPHENS QC - - - - - - - - - - - - - - - - - Between: (1) Sukwinder Singh Sanghera (2) Jasbit Singh Takhar Appellants - and - R Respondent - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment 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 David Spens QC and Mr Antony Dunkels for Sukwinder Singh Sanghera Mr O Pownall QC (who did not appear below) for Jasbir Singh Takhar Mr Christopher Hotten QC and Mr Philip Bradley for the Crown Hearing date: 16 th December 2011 - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens: 1. On 5 August 2010, after a trial of some seven weeks before Jack J and a jury in the Crown Court at Birmingham, Sukwinder Singh Sanghera, (“Sanghera”) who is now 25, and Jasbir Singh Takhar, (“Takhar”) who is now 24, were convicted of murder. Both appellants were sentenced to life imprisonment. The judge set Sanghera’s minimum term at 28 years less time spent on remand and he set Takhar’s minimum term at 29 years less time spent on remand. Both Sanghera and Takhar appealed their convictions with leave. Takhar also appeals against the minimum term set by the judge. We heard the appeals on 16 December 2011 and announced at the end of the hearing that the appeals would all be dismissed. We said that we would give our reasons in writing. All members of the court have contributed to this judgment. 2. The two appellants were convicted of murdering Swinder Singh Batth, the owner of Gavin’s Sports Bar in Bilston, Wolverhampton. He died as a result of a single fatal bullet wound. The prosecution case was that Sanghera, with murderous intent, fired the fatal bullet towards a crowd and it hit Batth, although it was accepted that Sanghera did not intend to kill Mr Batth in particular. 3. Seven other defendants were tried with the two appellants. Five of those defendants were also accused of murdering Mr Batth but, at the close of the prosecution case, the judge accepted a submission of no case to answer in respect of each of them. Those five (as well as Takhar and Sanghera) were, however, all found guilty of conspiracy to commit violent disorder. Those other five defendants were sentenced to various terms of imprisonment or detention. The two further defendants were only charged with intimidation of a witness, namely Kieran Mark Taundry. They were convicted of that offence and were given custodial sentences. The Facts 4. The shooting that gave rise to the charges took place outside Gavin’s Sports Bar early in the morning of 28 July 2009, but the chain of events started earlier in the evening of 27 July. Takhar was with his girlfriend Neesha Dubb, whom we shall call “ND”. (She was one of those convicted of conspiracy to commit violent disorder). They and other friends had been at Gavin’s Sports Bar. Takhar left with ND in her Renault Clio at about 2100 hours. They gave a lift to three young men: Kieran Mark Taundry, (“KMT”, a key prosecution witness), Shiv Dubb (one of the two defendants convicted of intimidation) and Ravi Patel, who was neither a defendant nor a witness at the trial. As the Clio drove away it passed a stationary Fiat Punto car which had a group of young men standing around it. One of the young men shone a laser pen beam into the Clio, which was being driven by ND. The laser beam was a strong, green light. Takhar was unhappy about this. He told ND to turn the car around and they went back to where the Punto was. Takhar remonstrated with those in the Punto and was very angry. He told ND to drive the Clio to a car park at the rear of Gavin’s Sports Bar. The Punto then drew up alongside and the occupants told Takhar he should calm down but he did not. He argued with a young black man called Kieron Wynter. The Punto drove off and Takhar remained angry. 5. The prosecution case was that Takhar then resolved to gather together a group of people to go back to the bar and confront Kieron Wynter and his associates. It was said that Takhar recruited Sanghera as the gunman in order to deal with Keiron Wynter and that Takhar recruited the other four male defendants by mobile phone. The prosecution case was that Takhar, driven by ND in her Clio, collected Sanghera from his home in Melvin Road, Smethick and then another defendant, Narinder Kumar from his home nearby at 9 Slade Close, West Bromwich. It was the prosecution case that when Sanghera got into the Clio he had a gun, a pair of gloves, a full face balaclava hat and wore body armour and, importantly, that Takhar knew that Sanghera had a gun. All in the group collected at Marbury Drive in Bilston and they then travelled in two cars to Gavin’s Sports Bar. The larger car was a Seat Alhambra in which, on the prosecution case, Sanghera and Takhar were passengers. ND drove her Clio to the bar with three others in the car, including KMT. None of the occupants of the Clio got out of the car during the ensuing incident. However, the prosecution case was that all the defendants were well aware of the plan to use or threaten violence with a gun. 6. The two cars arrived at the bar very shortly after midnight. There were about 20 people in or outside the bar. Takhar and another defendant, Sangha, went into the bar and were looking for the young men who had shone the laser beam earlier that evening. Takhar asked for Kieron Wynter by name. He was not there. Takhar and Sanga both made threats against the laser users. They came outside the bar and there was then an argument between Takhar and a young white man called Craig Martin in which there were references to the earlier incident with the laser pen, threats of violence, allegations of racial abuse and Takhar indicated the Alhambra and said he had “not come alone”. The prosecution case was that Sanghera then got out of the Alhambra wearing gloves and a full face mask which had just eye holes, he walked towards the group on the steps of the bar, raised his arm and fired a shot from a handgun into the crowd. The shot struck Swinder Singh Batth and he died shortly afterwards. The group then fled in the two cars. 7. The prosecution case was that Sanghera was the gunman and that when he fired the handgun he intended to kill or at least to grievous bodily harm. The case against Takhar was that Takhar was a secondary party to the murder of Mr Batth, so he was party to a joint enterprise to Mr Batth’s murder. The prosecution advanced two alternative bases for Takhar being part of the joint enterprise. The first was that he called Sanghera out of the Alhambra with the intention that Sanghera should fire the gun and kill or cause serious injury. It is obvious that this basis presupposed that Takhar knew that Sanghera had a gun which he could and would use when asked to do so by Takhar. The second basis was that Takhar was a party to a plan to find, threaten and use violence against Kieron Wynter and his associates and that what was going on at the bar (when Takhar’s group returned) was a part of that plan. The way the judge put the prosecution case against Takhar on this second basis (which was in a formulation that was agreed to by all counsel at the trial) was that Takhar “… realised that one of those who had come with him had a gun and that there was a real risk that in the course of the plan the gunman might intentionally kill or cause really serious injury in putting the plan into effect ”. That direction is criticised by counsel for Takhar and forms the first Ground of Takhar’s appeal. 8. The defence case for Sanghera was alibi. He said that Takhar had called at his house earlier in the evening but he refused to go out and he went to bed instead. The defendant Kumar identified Sanghera as the gunman in his police interview. KMT, who had originally been arrested on suspicion of murder and interviewed under caution, was then told that he was not to be prosecuted. He subsequently gave a statement to the police on 22 October 2009. In this witness statement he described meeting a person called “Suk” or “Suki” a short time before the incident. He also said that he was told by someone that “Suk” was wearing body armour. Subsequently, KMT took part in a video identification in which he identified Sanghera as the man to whom he had been introduced as “Suk”. 9. Sanghera said that others in the group had named him because they wanted to hide the true identity of the gunman. It was accepted at the trial by Mr David Spens QC, counsel for Sanghera, that if Sanghera was present outside Gavin’s Sports Bar, then he was the gunman. 10. Takhar’s case was that he had no knowledge that Sanghera had a gun or that it might be used. 11. The principal issues for the jury were, therefore: (i) was Sanghera present and did he use the gun; (ii) was Takhar liable as a secondary party to the murder of Mr Batth; and (iii) were any of the other defendants accused of murder guilty as secondary parties. The Trial: how the grounds of appeal arise 12. Prior to the start of the trial Takhar had pleaded guilty to the charge of conspiracy to commit violent disorder, viz count 2 on the Indictment. 13. The trial began on 14 June 2010. The prosecution applied, without notice, to permit the jury to see the material parts of the defence statements of all nine defendants, pursuant to section 6E of the Criminal Procedure and Investigations Act 1996 , which provision had been added by section 36 of the Criminal Justice Act 2003 . The application was supported by two defendants, Kumar and Ottalan so far as their defence statements were concerned. It was opposed by the appellant Sanghera and by ND. Counsel for the other defendants took a neutral stance. The judge ruled that all the defence statements should be shown to the jury. He rejected the argument of Mr Spens, on behalf of Sanghera, which was that the statements of Ottalan and Kumar should not go before the jury because it was asserted in them that Sanghera had fired the shot, yet they might not give evidence either at all or even in support of that allegation. The judge also rejected a further argument of Mr Spens based on the construction of section 6E(4)(b) of the 1996 Act . This was to the effect that the judge should direct that the defence statements of Ottalan and Kumar should be edited so as to omit the references to Sanghera being the gunman, because that was a matter “ evidence of which would be inadmissible ” within the meaning of that section. The judge held that Mr Spens’ argument was based on a mis-reading of the provision. He pointed out that evidence that Sanghera was present, had the gun and had fired the shot would all have been admissible. The judge also ruled that, in the circumstances of this case, the proper exercise of his discretion was to permit the jury to have the material parts of all the defence statements. The jury were given the defence statements in a separate bundle and they retained them throughout the trial and when they retired to consider their verdicts. 14. Ground 1 of Sanghera’s appeal is that the judge erred in this ruling. 15. The prosecution then presented its case. After the prosecution opening, in which there was reference to the interviews of all the defendants, the judge told the jury that what a defendant said in interview was not evidence against another defendant. The prosecution read out the contents of the defence statements. The judge did not say anything to the jury about the status of the defence statements; in particular he did not point out to the jury that they did not constitute evidence. 16. On 6 July 2010 the prosecution proposed calling Sharanjeet Kaur to give evidence. She is the wife of Narinder Kumar, who was one of the defendants. She had given a statement to the police on 30 September 2009. The statement related an account given by him to her shortly after the incident in which he explained how he had become involved in the incident. In the statement Kaur reports Kumar as saying that Sanghera had the gun and fired the fatal shot. The prosecution wished to adduce the evidence from her because the account was made so soon after the incident and because, it was said, the account of Kumar given to his wife constituted a confession by him to her. It was accepted that section 76 of the Police and Criminal Evidence Act 1984 (“ PACE ”) applied but there were no grounds on which the evidence could be excluded under that section. It was conceded by the prosecution that this evidence, which it said was evidence against the interest of Kumar, was evidence only against him, unless Kumar himself gave evidence and adopted what his wife had recited he had said about the incident, in particular the fact that Sanghera was present and fired the gun. 17. On behalf of Sanghera, Mr Spens objected to this evidence being admitted. He did so on the ground that it would have such an adverse effect on the fairness of the proceedings so far as his client was concerned so the court should exclude it using its powers under section 78 of PACE . The judge rejected Mr Spens’ submissions. He said that they were founded on the proposition that the jury would not follow a direction that (unless Kumar gave evidence) the statement could only be evidence against Kumar and not against Sanghera. 18. Two witnesses were called by the prosecution to prove that Sanghera was both present and the gunman. The first was KMT, who had been present at the argument between Takhar and Wynter earlier in the evening and who was also present in the Clio on the group’s return to the bar. 19. The second witness was Anthony Scott. Scott was, at the relevant time, serving a prison sentence for the violent robbery of a drugs dealer. Scott had met Sanghera in prison when Sanghera was on remand. Scott said that Sanghera had talked about the case and had shown him some papers. He said that Sanghera had admitted that he had shot Mr Batth but Sanghera had said that it was an error. Scott’s evidence was that Sanghera wanted Scott to ensure that witnesses did not give evidence either by offering them money to go abroad for a period or by other means if that failed. Scott’s evidence was that he was not interested in helping Sanghera. Scott also said in evidence that one month after he came out of prison (on 9 April 2010) he met Mr Batth’s son, Gavin Batth and Scott told him of his involvement with Sanghera in prison. Scott made a statement to the police on 28 June 2010, that is some two weeks after the trial had started. 20. The prosecution also put in evidence the police interviews of those who faced the charge of murder. All save ND had, in their interviews, identified Sanghera as being present outside the bar, if not as the gunman. The prosecution also adduced three plans of the interior of the Alhambra car, showing where various persons were sitting in the car, including Sanghera. 21. On 15 July 2010 the judge ruled that there was no case to answer on the charge of murder against Ottalan, Sanga, Kumar, Bajwa and ND. He did so on the ground that, in respect of those defendants, the jury could not be sure on the basis of the prosecution evidence that Sanghera had a gun prior to him firing it. But he held that the jury should still consider the second count against those defendants, viz. that of conspiracy to commit violent disorder. Following this ruling all of those defendants bar ND indicated that they would not be giving or calling evidence. 22. On 16 July 2010 Mr Spens, on behalf of the appellant Sanghera, applied to discharge the jury from further consideration of the case against him and to sever his case from the main trial and for an order that there be a separate trial of his case. The basis of those applications was that there would now be a large quantity of statements, in particular the co-defendants’ interviews, diagrams and defence statements which the jury had seen and read, but which were all inadmissible as evidence or material as against Sanghera. Therefore any trial of Sanghera in such circumstances would be unfair, notwithstanding any direction from the judge that the jury must not treat those statements or materials as not being evidence against Sanghera. It was submitted that those statements or materials that were inadmissible against Sanghera were so preponderant in weight that the jury would be influenced by them so that Sanghera could not have a fair trial. 23. The judge ruled against this submission and gave brief reasons when he did so. He handed down a fuller written ruling on 20 July 2010. The judge stated that he appreciated that this was a case where the jury would have to be directed that, so far as Sanghera was concerned, they must put out of their mind material which they had seen and heard. But he said that in this case Sanghera had alleged that various defendants made the false accusation against him that he was present and the gunman. But now it was clear that they were not prepared to give evidence to back up those allegations against Sanghera. The key evidence against Sanghera was that of KMT. If the jury believed that then they would not be bothered by unsubstantiated allegations of others against Sanghera. There was also the evidence of Scott. The jury should be trusted to follow the directions that the judge would give. The judge also said that he did not regard the defence statements as a problem. They had been referred to once in the opening and had not been referred to since then and it was likely the jury had forgotten about them. 24. Ground 3 of Sanghera’s appeal is that the judge erred in his ruling that the jury should not be discharged as against Sanghera or that his trial should be severed from that of the other defendants. 25. The appellant Sanghera then gave evidence. On 19 July 2010 the appellant Sanghera was cross-examined by counsel on behalf of Takhar. During this cross-examination counsel presented, without prior notice, three original pages of a note which was in Sanghera’s handwriting (“the Note”). Copies had not been previously been produced for either the judge or other counsel. Upon its production there was an adjournment to allow copies of the three pages to be made. But, at the time, no objection on behalf of Sanghera was taken to the production of this Note. In this Note Sanghera set out an account of the events of 27 July up to the point at which the Alhambra was travelling towards the bar, so far as they concerned him. It described Sanghera as being in the Alhambra car and how he had come to be there. It accepted that he was one of the team recruited by Takhar. The Note also contained diagrams of where people (including Sanghera) had been sitting in the Alhambra on the way to the bar. 26. Sanghera was then cross-examined by counsel on behalf of Kumar. Sanghera was asked directly whether he knew that, in his police interview, Kumar had said that Sanghera was the gunman. Sanghera denied knowing this and said that he had not received the interview transcripts until November 2009. It was then put to Sanghera that seven of the defendants had said in their interviews that “Suk”, viz Sanghera, was the gunman. Counsel for Siv Dubb then rose to point out that his client had not named Sanghera as the gunman in his interview. Counsel for Kumar corrected himself but said that six defendants had named Sanghera as the gunman. At that point a number of the jury laughed. Mr Spens interpreted that as their comment on the meagre difference between six and seven defendants identifying Sanghera as the gunman. 27. Mr Hotten then cross-examined Sanghera and dealt with the Note. Sanghera said that the Note had been devised by both Takhar and him but at Takhar’s instigation and it was written in Sanghera’s hand in the cells at court. He said that it was written when he thought that his co-defendants, including Takhar, were likely to give evidence and some might implicate him. He said that Takhar was also concerned about the evidence of two witnesses, Balran and Woollery, to the effect that he (Takhar) had gone to the car just before the gunman emerged and that if those witnesses were believed then Takhar was likely to be convicted of murder. Hence the production of the Note. He said that the three pages produced were part of a seven page note. Sanghera stated that Takhar had kept the Note so as to ensure Sanghera kept his side of the deal. In the remaining four pages there was a part about a revolver, which was intended to fit in with the evidence of Scott that Sanghera had mentioned a revolver. Sangera agreed with Mr Hotten that the Note “… was a squalid deal between him and Thakar to lie to a jury ”. 28. We have seen the three pages of the Note. The narrative stops at the point when the defendants and the rest of the group got into the Alhambra and Clio. It includes a diagram of where everyone sat in the two cars, including Sanghera and Takhar and it says “ this was the seating of the cars on the way to the club ”. No other pages of the Note were ever produced and there was no further evidence about it. 29. After this cross-examination had finished Mr Spens applied again for the discharge of the jury as against Sanghera and for severance of Sanghera’s trial from that of the other defendants and an order for a separate trial. The basis for this was that the cross-examination by counsel for Kumar had been improper, relying on evidence inadmissible against Sanghera. The judge said that he would defer a ruling until the close of evidence because he wished to take account of any further evidence. Following Sanghera’s evidence two further witnesses were called on his behalf but none gave evidence in support of his alibi. No other defendant gave evidence. 30. Mr Spens then renewed his application, but it was rejected by the judge. He handed down a written ruling on 23 July 2010. The judge analysed the position as follows: (a) Sanghera’s case remained that of alibi. His evidence was that the Note was not true. (b) The Note (which Sanghera had admitted was actually written by him) was apparently the result of a deal between Sanghera and Takhar, because, according to Sanghera, he felt he needed to find a story which was to be consistent with the other evidence and with what other defendants were expected to say if they gave evidence. Sanghera was prepared to give evidence in accordance with the Note. (c) However, that plan had now collapsed because the other defendants had not given evidence. Sanghera’s evidence was that Takhar therefore gave his counsel three pages of the seven page note. (d) The result of the revelation of the existence of the Note, which, at least implicitly, placed Sanghera at the scene, was that Sanghera had to explain that. His explanation for the Note was that he had felt compelled to produce a further account that would fit in with what he expected other defendants to say but which would still exculpate him from the murder. Accordingly, the judge reasoned, what the co-defendants were expected to say had become “the corner-stone” of Sanghera’s explanation for a document that was otherwise fatal to his case. (e) Therefore, “… the subject matter of Mr Spens’ objection, namely the co-defendants’ accusations made in interview, has become an essential part of Sanghera’s case ”. (f) The unfortunate statement by counsel for Kumar about the number of defendants that had placed Sanghera at the scene could be dealt with by an appropriate direction to the jury. (g) The jury would have to assess the evidence of KMT and Scott on whether Sanghera was present. 31. The judge concluded that Sanghera could still have a fair trial. 32. In the same ruling the judge recognised that he had to reconsider the issue of the defence statements, which were still in the jury bundles. Counsel for four of the defendants indicated that they would wish to refer to the defence statements in their final submissions. Mr Spens for Sanghera wanted them removed and counsel for the prosecution was content that they should be removed. 33. The judge ruled: (a) that defence statements were not, of themselves, evidence of anything; (b) a defendant was not entitled to rely on his defence statement in support of his case, particularly if he had not given evidence; (c) before ruling on whether counsel could refer to his client’s defence statement in the course of his address to the jury he wished to know what form this would take and then he would rule on whether counsel could refer to them; and (d) in the light of such further ruling, he would decide whether the defence statements should be withdrawn from the jury before they retired. 34. Ground 4 of the appeal of Sanghera is that the Note should not have been put before the jury by those representing Takhar without advance warning having been given to those representing Sanghera, because it constituted a confession for the purposes of section 76A of the Police and Criminal Evidence Act 1984 . If notice had been given, counsel for Sanghera would have been able successfully to resist the Note being put to Sanghera and so introduced to the jury, by virtue of section 76A(2) of PACE . 35. Ground 5 of the appeal is that, as a result of the judge’s ruling not to discharge the jury or order a severance after Mr Spens made his submissions following the Note incident, when the jury retired to consider the case against Sanghera there was more inadmissible evidence before the jury than the jury could have ignored. Particular reliance is placed on the five co-defendants’ interviews in which Sanghera was implicated as the gunman; the two defence statements (Ottalan and Kumar) in which he was implicated as the gunman; evidence from Sharanjeet Kaur of what Narinder Kumar told her about Sanghera’s involvement in the shooting; Keiron Taundry’s evidence about what he was told about Sanghera on 28 July 2009 and on 18 November 2009; the evidence of Anthony Scott. Because of this, Sanghera did not get a fair trial and his conviction is unsafe. 36. Immediately prior to counsel’s final addresses to the jury Jack J made a further ruling on the defence statements. He noted that the defence statements had not been referred to since the prosecution opening and that there had been no evidence from any defendant other than Sanghera in support of his statement; nor had there been any cross-examination on the defence statements. The judge also noted that there would be no reference to them in the closing submissions of prosecuting counsel. However counsel for Kumar wished to refer to Kumar’s defence statement in order to show that statements in it were supported by evidence that was before the jury. The judge ruled that such an exercise would be an illegitimate use of the defence statement because it would accord to the statement a status which it did not have, which was, to use the judge’s phrase “quasi-evidence”. We agree with that analysis. 37. However, the judge ruled that counsel for ND was entitled to refer to her defence statement in order to bolster an argument that her defence statement did cover matters which she declined to answer questions on in interview. We are not sure that this was correct. Answers by a defendant in a police interview have an evidential value because they are statements by a defendant under caution. What is said in a defence statement is not any kind of evidence. To say that there can be reference by counsel to the fact that a defendant’s defence statement “covered the matters on which she declined to answer in her interviews” seems to us to run the very same danger that the judge identified in relation to Kumar’s defence statement, viz. that of giving to the defence statement a status which it did not have of “quasi-evidence”. The judge also ruled that counsel for Narwal could inform the jury that Narwal’s defence statement accepted that he had lied in a prepared statement he had made in his police interview, but he could not rely on that statement to suggest a reason for the lie. It would have been better if that had simply been the subject of an admission, for the same reason of the danger of affording the defence statement a status it did not have. 38. The judge rejected a submission made on behalf of counsel for Shiv Dubb to refer to his defence statement in closing submissions. 39. Lastly the judge decided that he would not order that the defence statements be taken from the jury. He noted that it was unlikely that the jury had referred to them since the opening by the prosecution. He said that, after anxious thought, he had decided that to remove them with the explanation that would have to be given “ might be to a defendant’s disadvantage by carrying with it the possibility of suggestion that his case had not been established”. The judge added that the jury would have to be directed that the case statements were not evidence. The judge did give a direction to the effect that the defence statements were not evidence and he directed the jury not to look at them in the course of their deliberations: see page 107C-E of the summing up. 40. Ground 2 of Sanghera’s appeal is that the jury should not have been permitted to retain the defence statements once they retired to consider their verdicts. 41. The sixth and last ground advanced by Sanghera is that his conviction was unsafe because the only admissible evidence against him was that of KMT and Scott but their evidence was not reliable and would not or should not have been enough, on its own to convince the jury to convict Sanghera. In the absence of the evidence or material which was all inadmissible as against Sanghera, this court could not be sure that the jury’s verdict against Sanghera would have been the same. 42. As already noted, Takhar’s first Ground of appeal relates to the agreed direction that the judge gave on what was called “the second route to murder” in relation to the appellant Takhar. It is submitted that the flaws in the direction make the conviction of Takhar on the murder charge unsafe. 43. The second Ground of appeal of Takhar also relates to a direction given in the summing up. It concerns the way the judge dealt with certain evidence given by KMT. The relevant passage of the summing up is at page 70B-E. The judge said: “ Looking at the stills of the Clio and the other cars he said he didn’t recognise any of the men shown standing at the rear of the Clio. He recognised Shiv and Rabi. He said that when they came out [of] the green mini-van was there – obviously the Alhambra. There were seven or eight people there excluding the three of them. The men, he said, were greeting each other, shaking hands. He was introduced to two of them by Shiv. He named those two as Suk and as Honkar. He said he had not seen Suk before. He described him as Asian, brown-skinned, early twenties, short curly hair, a big coat and as the only one there who was wearing glasses. Somebody – he couldn’t remember who it was – had said that Suk was wearing body armour. He thought that they were joking. However, he looked at Suk and his upper body looked big in comparison with the rest.” 44. The complaint is that whilst KMT’s evidence that he was told by someone else that “Suk” viz. Sanghera, was wearing body armour was admissible against Sanghera because he was present and he did not contradict it, it was not admissible against the appellant Takhar, who was not, because it was hearsay evidence. It is said that the judge therefore wrongly permitted the jury to use this evidence as of general application and so it could, somehow, be used to support the prosecution case that Takhar knew Sanghera had on body armour and there could have only been one reason for that, viz. that Sanghera had a gun and was anticipating it being used. Therefore, it could be wrongly used to support the prosecution case that Takhar knew Sanghera had a gun before the shooting took place. 45. The third Ground of appeal of Takhar also concerns the judge’s summing up and relates to his treatment of the evidence of Anthony Scott about a conversation that Sanghera had with him whilst Scott was a serving prisoner in Winson Green prison where Sanghera was being held on remand. The relevant passage of the summing up is at page 82E-H, as follows: “… Sanghera said [to Scott] that a conviction rested on the evidence of Kieron Taundry. He said that [TMK]could take a flight to wherever he wanted. All would be taken care of. But he was not to come back until after the trial. Sanghera said that if that didn’t work maybe he, Scott, could work out something else to make sure that he didn’t turn up at court. Scott said that over a few conversations Sanghera told him about the case: that he was in for murder, there had been an argument in the bar about laser pens, someone took off, the shooting happened and somebody he knew had died. He wasn’t the intended victim. He, Sanghera, had killed the wrong man. The intended victim was Craig Martin. He also told him that he’d got the gun and body armour from a safe house just north of Wolverhampton, and that’s where they’d gone off to afterwards”. 46. It is said that the evidence may have been interpreted by the jury to mean that the gun was collected after Takhar had picked up Sanghera and thereafter the gun was returned to the same house after the shooting. Thus, the thinking runs, if Takhar knew why they were going to that house in the first place, viz. to get the gun, he would have known that Sanghera had the gun. The judge should have given a specific direction that this evidence was not admissible against Takhar but he did not. Sanghera: Appeal against Conviction 47. Ground 1: the defence case statements should not have been put before the jury or included in the jury bundle by virtue of section 6E(4) of the 1996 Act . The relevant provisions of the 1996 Act are: “ (4) The judge in a trial before judge and jury – (a) may direct that the jury be given a copy of any defence statement, and (b) if he does so, may direct that it be edited so as not to include references to matters evidence of which would be inadmissible. (5) A direction under subsection (4) – (a) may be made either of the judge’s own motion or on the application of any party; (b) may be made only if the judge is of the opinion that seeing a copy of the defence statement would help the jury to understand the case or to resolve any issue in the case.” 48. It is accepted that the application was made properly pursuant to section 6E(5)(a) and the Criminal Procedure Rules. However, it is submitted that the judge erred in concluding that the jury would be helped in understanding the case or in resolving any issues in the case by seeing a copy of the defence statements that were placed before them. It is said that the prosecution’s recital of their content was both unnecessary and prejudiced the jury against the defendant Sanghera. Moreover, it is submitted that the decision to direct that the defence statements be put before the jury was premature because it was not known at that stage whether or not the other defendants would give evidence. Although the judge did tell the jury after the prosecution opening that the defendants’ interviews were not evidence against other defendants, he did not refer to the defence case statements at that stage. 49. It is clear from section 6E(5)(b) that the judge can only make an order directing that the jury be given a copy of defence statements if the precondition set out in that paragraph is met. But it is important to note its terms: “ if the judge is of the opinion that seeing a copy of the defence statement would help the jury to understand the case or to resolve any issue in the case”. The judge has to form an opinion. Unless it can be shown that his opinion was an unreasonable one such that no judge could properly have reached the view that seeing the defence statements would help the jury to understand the case or resolve issues in the case, then the judge’s conclusion that it would help the jury to understand the case or resolve any issue in the case cannot be attacked on appeal. 50. We appreciate that, even if the judge has properly reached his opinion that it would help the jury, the judge has to exercise a judgment on whether or not to direct that the defence statements should go before the jury. The judge has to make a judgment on whether, overall, he should make the direction sought and he may also have to exercise a judgment as to when and on what terms the defence statements are to be put before the jury. 51. We have read the judge’s ruling. We think that it was a reasonable conclusion on the facts of this case where, at the start of the trial, there were seven defendants facing a murder charge and two others facing a witness intimidation charge and they had different cases. The judge considered the issue of the construction of section 6E(4)(b). In our view his conclusion on that issue was also correct. In other words, that paragraph makes it clear that the judge has a discretion on whether or not to direct that the defence statement that goes before the jury should be edited so as not to refer to matters “ evidence of which would be inadmissible ”. That is a reference to evidence of matters such as hearsay evidence or the bad character of prosecution witnesses. But, it is to be noted that the paragraph confirms that the defence statement itself is not evidence. All it can ever do is to refer to matters which may become the subject of evidence. Plainly there may be cases where a defence statement will refer to matters of which evidence may be admissible against one defendant but not another. In that case the judge will have to exercise his discretion under section 6E(4)(a) as to whether or not to direct that the jury be given copies of that statement. 52. This ground is therefore rejected. 53. We will consider Ground 2 at its proper point in the chronology of the trial. 54. Ground 3 : that the appellant was so prejudiced by the volume of inadmissible evidence put before the jury that the applications to sever his case from his co-defendants and to discharge the jury from further consideration of the case against him at those stages should have been allowed. The principles relating to severance and ordering separate trials of one of a number of defendants charged with the same offence are well established and are not in issue. The discretion to sever and order a separate trial is contained in section 5(3) of the Indictments Act 1915 which is so well known we do not need to set it out again. There are sound public policy reasons for having a single trial of two or more defendants who are jointly charged with the same criminal offences arising out of the same central facts. It is only in very exceptional cases that a judge should exercise his judgment in favour of ordering a separate trial for one or more defendants pursuant to section 5(3) . There are only two questions to consider: are the factors relied on by Mr Spens on behalf of Sanghera such as to take his case into the realms of “very exceptional” and, if they were, was the consequence of the judge’s decision not to discharge the jury from considering Sanghera’s case and of not ordering a separate trial such that the verdict of the jury in his case is unsafe. 55. It is for the judge to exercise a judgment on these issues. This court will only interfere if it takes the view that the judge’s exercise of his judgment was clearly wrong or unreasonable. We have reviewed the judge’s ruling of 20 July. He took all relevant factors into account. He appreciated that the key issue was whether the jury accepted KMT’s evidence and that of Scott. The judge rightly pointed out that the jury would be given directions on what was and was not admissible evidence as against Sanghera. He said, correctly, that the jury must be expected to follow those directions. There is no submission that proper directions in this regard were not given with regard to Sanghera. 56. We reject this ground. 57. Ground 4 : the “Note” should not have been put before the jury by those representing Takhar without advance warning being given to the appellant. Mr Spens accepted that this ground depended on whether, assuming the Note fell within the ambit of section 76A of the Police and Criminal Evidence Act 1984 , he would have been able to persuade the judge not to allow the Note to be given in evidence because the requirements of section 76A(2) had not been fulfilled. Section 76A(1) -(3) provide: 76A. - (1) In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. (2) If, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proved to the court on the balance of probabilities that the confession (notwithstanding that it may be true) was not so obtained. (3) Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above to be proved in the proceedings on the balance of probabilities. 58. Section 82(1) of the same Act provides: “ “Confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”. 59. Mr Spens disarmingly admitted that an argument based on section 76A(2) did not occur to him until after Sanghera had been convicted. The argument is that because counsel for Takhar did not give him advance notice that the Note was going to be put to Sanghera in cross-examination, Mr Spens was so taken by surprise that he did not have the opportunity to consider and take instructions on whether to represent to the judge that the Note had been or might have been obtained in consequence of something said or done which was likely, in the circumstances existing at the time, to render that “confession” unreliable. If Mr Spens had so represented then, he argued, there would have had to have been a voir dire, in which the judge would then have to investigate those issues in order to decide whether, on a balance of probabilities, the “confession” was unreliable and so should not be admited. Mr Spens submitted that the judge would have ruled against admission of the Note. 60. We will assume for present purposes that the three pages of the Note that were put to Sanghera constitute a “confession” for the purposes of section 82(1) because, at least inferentially, those pages put Sanghera at the scene and that would be “ adverse” to him. We will also assume that section 76A(2) does apply to this case, despite the fact that Takhar was not going to give evidence and it was not proposed that he was going to give evidence about the Note. 61. But, even assuming counsel for Takhar had given Mr Spens notice that he was going to put the Note to Sanghera and that Mr Spens had invoked section 76A(2) and then there had been a voir dire about the circumstances in which the Note had been produced, we are quite satisfied that the judge would have permitted the Note to be adduced in evidence. It is clear from the evidence that Sanghera did give about the Note in answer to questions from Mr Hotten that Sanghera and Takhar did a “deal” between themselves in a way that they thought would be advantageous to both of them. Sanghera would support Takhar’s case that he did not call Sanghera out of the Alhambra and Takhar would say that it was the revolver, not a handgun, which fired the fatal shot. Accordingly, we are satisfied that the judge would have ruled that it had been demonstrated, on a balance of probabilities that the “confession” had not been obtained in consequence of anything said or done, which was likely in the circumstances existing at the time, to render unreliable that “confession” made by Sanghera. It is difficult to see on what basis the judge could have prevented it being put to Sanghera in cross-examination. 62. We therefore dismiss this ground. 63. Ground 5: The appellant did not receive a fair trial – there was more inadmissible evidence before the jury than could be ignored. Ground 5 is aimed at the position overall, at the time that the jury retired to consider its verdicts. Mr Spens submitted that there was just too much evidence and material before the jury which was inadmissible against Sanghera but which was prejudicial to him and that the jury could not realistically be expected to ignore it when considering Sanghera’s case. If there was a realistic possibility that they might have done so, then, Mr Spens submitted, that must render Sanghera’s conviction unsafe. 64. Mr Spens relied on six particular areas of inadmissible material or evidence. First, he relied on the defence interviews, five of which had implicated Sanghera as the gunman. However, it is commonplace for a defendant to make an exculpatory statement in interview and at the same time to implicate a co-defendant and then not to give evidence. The judge had warned the jury at the outset of the trial that statements of a defendant in interview were only evidence against that defendant. He did so again in detail in his directions at page 102-103H. We must assume that the jury followed his directions. 65. Secondly, Mr Spens relied on the co-defendants’ defence statements, in which two of the co-defendants implicated Sanghera as the gunman. But the judge made it clear to the jury that the defence statements were not evidence and neither Ottalan nor Kumar had given evidence to back those up. We must assume that the judge’s directions were followed by the jury. 66. It is also important that, as a result of the Note being introduced and Sanghera’s evidence in relation to it, his case really had to be judged on what the jury thought of all the evidence, including Sanghera’s evidence about the Note and the reason for its production. That would involve the jury considering his evidence that one reason for its production was what he thought his co-defendants might have said had they given evidence. 67. Thirdly, Mr Spens referred to Sharanjeet Kaur’s evidence of what Narinder Kumar told her about Sanghera’s involvement in the shooting. We have already related the circumstances in which this evidence came to be adduced. As things turned out, Kumar did not give evidence. The judge dealt with Sharanjeet Kaur’s evidence at pages 104-5 of his summing up. He directed the jury that her evidence about what Kumar told her concerning Sanghera’s involvement in the shooting was “ certainly ” not evidence against either of the appellants because it was not said in their presence and it had not been supported by Kumar because he had not given evidence: see 105C-D. The direction was impeccable. We must assume the jury would and did follow it. 68. Fourthly, Mr Spens referred to KMT’s evidence of what Shiv Dubb or Ravi Patel said to him on 28 July 2009. Counsel for Kumar had asked KMT in cross-examination when Kumar first heard that it was suggested that Sanghera (Suk) was the gunman. KMT’s reply was that it might have been when he was walking home after the shooting incident or in the next day or so. He said that, in either case, he heard it from Shiv Dubb or Ravi Patel. The judge directed the jury (at 76B) that what may have been said to KMT about who the gunman was did not constitute evidence of anything save as to KMT’s own state of mind. What others had said about who was the gunman, was not something that he was able to tell the jury about directly. The direction is clear and comprehensible. Again we have to assume the jury would and did follow it. 69. Fifthly, KMT’s evidence of what he was told by Amardeep Narwal and/or a third man on 18 November 2009. This relates to evidence that KMT gave about a conversation that he had had with Amardeep Narwal (Amo) and another man near KMT’s house on 18 November 2009 when they tried to persuade him to change his witness statement and apparently threatened KMT and his family with reprisals if he did not. The judge summarised the relevant part of KMT’s evidence (at 75C) as being that the unknown man had said that KMT was “on Suki’s list or something like that”. Mr Spens cross –examined on this point and KMT agreed that he had been told that he was on “their list” rather than on “Suki’s list”. KMT said that he was told to sort the matter out within the next two days. 70. The Crown accepts that the judge did not give a specific direction as to the status of KMT’s evidence that the man told him he was on “Suki’s list” or “their list”. But, just after summarising this evidence, the judge did direct the jury at page 76A-B in the following terms: “ Mr Singh for Kumar investigated when [TMK] first heard that it was suggested that Suki was actually the gunman. He said that it might have been walking home after the shooting or in the next day or so in either case from Shiv Dubb or Ravi Patel. What may have been said to [TMK] about who the gunman was is not evidence of anything save as to [KMT’s] state of mind. It not something that he’s able to tell you about directly”. 71. That direction is clear enough. 72. Sixthly: the evidence of what Anthony Scott told Gavin Batth, DC Fulger and DC Evans. Gavin Batth, the deceased man’s son, gave evidence that he was told by Scott that Sanghera had asked Scott if he knew Anastasia McDermott or Craig Martin. In order to identify the latter, Sanghera had taken Scott to his cell and showed Scott some papers. Gavin Batth’s evidence was also that Scott had said that Sanghera had offered him £10,000 if he would finish the person and make sure that he (or they) did not come to court. 73. DC Fulger gave evidence that Scott had told her that Sanghera had come to Scott and told him that he was responsible for shooting someone outside the bar and it had been about an argument over a laser pen and that the shooting had been a mistake; the intended victim was Wynter or Martin. Her evidence was that Scott had also said that Sanghera had offered Scott £5,000 to get the main witnesses (Wynter and/or Martin) to drop their statements. Scott also told DC Fulger that he had been to Sanghera’s cell and there seen witness statements and witnesses’ phone numbers. Scott said that others were being asked by Sanghera to ring witnesses to prevent them from coming to court to give evidence. 74. DC Evans gave similar evidence about what Scott had told him concerning conversations with Sanghera and the latter’s attempts to prevent TMK from giving evidence. 75. The judge directed the jury (at 89F-H) that what Scott had told Gavin Batth, DC Pulger and DC Evans was not evidence against Sanghera. The only evidence of Scott that was against Sanghera was the evidence that Scott had given from the witness box. The judge explained to the jury that the evidence of what Scott had said to Gavin Batth, DC Pulger and DC Evans was (a) to show how Scott’s evidence had emerged; and (b) to see if his evidence was consistent. The judge also reminded the jury of Scott’s background and that this meant that they should consider his evidence with particular care before relying on it: see summing up page 92E. 76. We have considered these points both individually and collectively. We are satisfied that, given the directions that the judge gave the jury, they were in a position to see and act on the admissible evidence against Sanghera and only that evidence. This ground is rejected. 77. Ground 2 : the defence statements should not have been allowed to remain with the jury once they had retired when no reference had been made to them at any stage during the evidence. It will be recalled that on 23 July 2010 the judge made a first ruling on the future possible use of defence statements. At paragraphs 12-18 of that ruling he decided he would wish to see what use various counsel wished to make of the defence statements before he made a definitive ruling on whether they could do so. On 26 July 2010 the judge heard further submissions from counsel on the use they wished to make of the defence statements in their closing addresses and he made a ruling on that issue. He did not rule that the statements should be removed from the jury and they were not. He said that, after anxious thought, he had decided that to remove them with the explanation that would have to be given “ might be to a defendant’s disadvantage by carrying with it the possibility of suggestion that his case had not been established”. 78. We find that reasoning difficult to follow. The defence statements were not evidence at any stage of the proceedings. They could not, in themselves, assist a defendant in establishing his case. If there was evidence that supported allegations set out in the defence statement, then it would be that evidence that either did or did not “establish” the particular defendant’s case. Therefore, if the judge had directed the jury that they no longer needed to have the defence statements because they were not evidence and they did nothing either to establish or disprove the case of the defendant concerned or any other defendant, we think that there would have been no prejudice to any defendant. 79. However, the judge did give a specific direction to the jury about the defence statements at page 107D-E of the summing up. He said: “… in the way this case in fact turned out it won’t help you, in my view, to look at the defence case statements or defence statements and for safety’s sake that is why I’m going to ask that you should not do so”. 80. Therefore, even if, as we think, it would have been more sensible for the judge to have ordered the defence statements to be taken from the jury before they retired, we cannot see that a failure to do so could affect the safety of the conviction. The judge specifically told the jury not to look at them. We have nothing to suggest that they did not obey his direction. This ground is therefore rejected. 81. Ground 6 : the convictions for murder and conspiracy to commit violent disorder were unsafe. Mr Spens submitted that the only admissible evidence against Sanghera was that of KMT and Scott and that each was unsatisfactory to such an extent that, absent the inadmissible material and/or evidence, the court could not be sure that the jury’s verdicts against Sanghera would have been the same. Therefore his convictions must be unsafe. 82. In response, it was submitted on behalf of the Crown that there was compelling evidence against Sanghera. In his written submissions, Mr Hotten relied in particular on: (i) the pattern of telephone calls, which he submitted supported the prosecution case that Sanghera was collected from his home address and thence driven to Maybury Drive and the bar; (ii) the evidence of Scott and TMK; and (iii) the fact that Sanghera’s alibi was unsupported and undermined by his evidence about the Note, which was, it was submitted, a transparent attempt to meet the damaging evidence of Scott. 83. The judge described TMK as an “important witness” not least because he was the only witness who gave evidence for the prosecution who said that Sanghera was present at the bar at the time of the shooting and he picked out Sanghera at an ID parade: page 79B. But the judge also set out Sanghera’s case with respect to the evidence of TMK. He reminded the jury that Sanghera said he had met TMK six or seven times before the incident; and that the prosecution accepted that he may not have told the whole truth about events of 27/28 July: page 79F of the summing-up. 84. We have already pointed out that the judge explicitly warned the jury to take particular care before it concluded that it could rely on the evidence of Scott and that they needed to consider to what extent he had been consistent or inconsistent in what he had said to others, viz. Gavin Batth, DC Fulger and DC Evans by comparison with his evidence in the witness box: see the directions at page 92D-E. 85. In effect, this Ground is attempting to urge that the jury must have both disregarded the judge’s directions as to what evidence was admissible against Sanghera and that the jury failed also to heed the judge’s directions as to the caution they should exercise in relation to both TMK and Scott’s evidence. We do not accept that this was the case. 86. We reject this ground also. Accordingly, we dismiss Sanghera’s appeal against conviction. Appeal against conviction of Takhar 87. Ground 1: At the outset of his submissions on behalf of the appellant Takhar, Mr Pownall QC (who had not appeared at the trial) emphasised the facts that: (1) the initial argument had been between Takhar and Kieron Wynter; (2) upon the return of Takhar’s group to the bar the argument was between Takhar and Craig Martin and Wynter was not present at the bar; (3) KMT’s evidence was that Takhar was arguing with Craig Martin when the fatal shot was fired; (4) when sentencing the judge observed that he could not be sure that Takhar opened the door of the Alhambra for Sanghera to get out or that he called him out. 88. Mr Pownall accepted that the prosecution had put its case against Takhar on two alternative bases and that the judge’s directions were intended to reflect that fact. Mr Pownall does not take any issue with the first basis on which the prosecution put its case against Takhar for being a party to a joint enterprise in the murder of Mr Batth. But he submits that there is a fatal flaw in the judge’s direction concerning the third of the sub-paragraphs of the “second basis” on which the prosecution put its case that Takhar was a party to the joint enterprise to the murder of Mr Batth. 89. The judge’s directions were in the following terms: “18. The prosecution assert that he is liable on one of two bases 19. The first basis is that he called the gunman out of the Alhambra with the intention that the gunman should fire the gun and should kill or cause serious injury. If you are sure that he called the gunman out and that he had that intention when he did so, you will find him guilty of murder. You need not then consider the second basis. 20. The second basis is that: (a) Takhar was party to a plan to find, threaten and use violence against Kieron Wynter and his associates; (b) What was going on at the bar was part of putting the plan into effect; (c) He realised that one of those who had come with him had a gun and that there was a real risk that in the course of the plan the gunman might intentionally kill or cause really serious injury in putting the plan into effect. If you are sure of each of those three, you will find Takhar guilty of murder.” 90. Mr Pownall accepts, of course, that Takhar, as a secondary party, would be guilty of murder if he participated in a joint enterprise realising in the course of it that the principal (in this case the gunman) might use force with intent to kill or to cause really serious bodily harm and the principal (ie. the gunman) did kill with such intent. That is clear on the well – known authorities of R v Powell [1999] 1 AC 1 and R v Rahman [2009] AC 129 , which have very recently been confirmed by the Supreme Court in R v Gnango [2011] UKSC 59 . But, Mr Pownall emphasised, if the principal goes beyond the scope of the joint enterprise and does an act which is not foreseen as a possibility by the alleged secondary party, then that person cannot be guilty of murder or even manslaughter. 91. In terms of the facts of this case, Mr Pownall emphasised that when the Takhar group returned to the bar, the person that Takhar wanted to find (and for whom he asked by name) was Kieron Wynter, but he was not present and so no reprisals could be taken against him. Others, including Craig Martin, were present and it was Craig Martin with whom Takhar started to argue before the fatal shot was fired. Mr Pownall thus submitted that the original plan, which was to seek out Kieron Wynter and punish him with force, was no longer in operation. Therefore anything that the gunman did was outside the scope of the original plan. 92. Accordingly, Mr Pownall said that the problem with the direction the judge gave on the “second basis” of the prosecution’s case was that it did not sufficiently focus on the fact there a new situation existed when Takhar and the others reappeared at the bar. The jury should therefore have been asked: (a) are you sure that what Takhar did upon arriving at the bar was in furtherance of the joint enterprise plan to seek revenge against Kieron Wynter; if not, then (b) are you sure that Takhar realised that the gunman might leave the Alhambra and fire upon those with whom Takhar was arguing in furtherance of the original joint enterprise, with intent to kill or do really serious harm; if not, then (c) did Takhar realise that there was the risk of at least some harm short of really serious harm, in which case there would be a verdict of manslaughter. 93. Effectively, therefore, Mr Pownall criticises the use of the words “ the plan” in sub-paragraph (c) of paragraph 20 of the written directions. He submitted that the use of that phrase assumed that there was only one “plan” which was to threaten and use violence against Kieron Wynter and his associates and that the same “plan” existed when the Takhar group returned to the bar even though Keiron Wynter was no longer there and it was with Craig Martin that Takhar engaged in argument before the fatal shot was fired. 94. We asked Mr Hotten whether it had been the case of any of the defendants at the trial that there were two “plans”, viz. an original plan as identified in paragraph 20(a) of the written directions and a second “plan” or “situation” which was what developed when the Takhar group came back to the bar and there was the argument that led up to the fatal shot. His straightforward answer was “No”. We were not surprised to hear that answer. It is quite clear from the evidence that the situation that developed after the Takhar group arrived back at the bar was a continuation of what had happened beforehand. Takhar was, of course, looking for Kieron Wynter. He remained very angry about the incident with the laser and he went around asking questions of people at the bar on the whereabouts of Wynter. Takhar argued with Craig Martin about lasers, according to some witnesses. It is impossible to suggest now that there were really two different, compartmentalised, incidents so that even if Takhar realised that there was a risk that the gunman might shoot as a part of incident one, involving Keiron Wynter, it did not follow that Takhar would realise that there was a risk that the gunman might shoot as a part of incident two, involving Craig Martin and others but definitely not Keiron Wynter. 95. The fact that it was accepted by all at the trial that this was all one incident and there was only one “plan” is borne out by the fact that paragraph 20(b) of the written directions, to which neither anyone at the trial took objection and nor Mr Pownall now do so, stated that “ what was going on at the bar was part of putting the plan into effect”. It must also be recalled that Takhar pleaded guilty to conspiracy to commit violent disorder. There was only one such conspiracy, that is there was only one agreement or “plan”; and that one agreement was to commit violent disorder at the bar when the Takhar group arrived there shortly before the fatal shot. 96. Mr Pownall had to accept that counsel for Takhar at the trial had conceded in his closing speech to the jury that “ ..it might be reasonable…in the circumstances to think that Takhar knew there was a gun [but] he rightly said that was something that you [the jury] had to be sure about”: page 131F-G of the summing up. Mr Pownall submitted that concession was wrongly made. With respect we think that it was an entirely realistic concession. It more or less had to be made given Mr Spens’ concession that if Sanghera was present at the scene, he was the gunman. Therefore, if the jury accepted the prosecution case that Takhar had recruited Sanghera and he was there, then it is unrealistic to suggest that Takhar did not realise from that point that Sanghera had a gun. 97. The two “bases” for the case against Takhar, as summarised in the judge’s written direction to the jury therefore only differ in relation to (a) whether or not Takhar deliberately called the gunman out of the Alhambra; and (b) whether Takhar did so with an intention that the gunman should fire the gun to kill or cause really serious injury. The second basis dealt with the possibility that the jury were not satisfied that Takhar had deliberately called the gunman out of the Alhambra and/or had an intention that the gunman should fire to kill or cause really serious injury. If the jury were unsure on those matters, then it seems to us that it was a perfectly proper direction to the jury to ask them to consider whether Takhar realised that one of those who had come with him, had a gun and that there was a real risk that “ in the course of the plan” the gunman might intentionally kill or cause really serious injury in putting the one and only plan that existed into effect. That formulation was sufficiently broad to enable the jury to consider the case against Takhar on the basis that either they were satisfied that Sanghera was present (and so, by concession, the gunman) or was not and there was another, unidentified, gunman. 98. We therefore conclude that there was no fault with the written direction as formulated and we must reject the first ground of appeal. 99. Ground 2: We have already set out the relevant passage in the summing up (at 70B-E) that is criticised and the argument made on behalf of Takhar. In our view the argument raised on behalf of Takhar misses the point. The prosecution was not trying to prove that Sanghera was wearing body armour but that he had a gun from the moment that he was picked up by Takhar and that Takhar knew that fact. It was not suggested in this passage that the person who spoke to TMK expressed an opinion that because “Suk” was or might have been wearing body armour therefore he had a gun. Nor is it suggested that TMK drew such a conclusion from seeing that Suk’s upper body looked big by comparison with the rest. It stretches imagination to think that the jury might regard that passage as possible evidence against Takhar to support the conclusion that he knew Sanghera had a gun. It is noticeable that counsel for Takhar did not raise this as an issue at the time. We reject this ground. 100. Ground 3: We have also set out the passage of the summing up (82E-H) that is criticised under this ground and the argument made on behalf of Takhar. It is accepted by Mr Hotten that the judge did not give a specific direction that the evidence of what Sanghera told Scott was not evidence against Takhar, although it is fair to point out that the judge did refer, at 89F of his summing up to “ Scott’s evidence against Sanghera in this case…”, being that which he gave from the witness box. It is implicit in that statement that Scott’s evidence was not therefore evidence against other defendants, including Takhar. 101. More importantly, there is no mention of Takhar in the passage complained of so we fail to see how, realistically, the jury could reasonably have regarded this passage as constituting evidence that Takhar knew that Sanghera had a gun. It is not possible to deduce from that passage that Sanghera had got the gun from the safe house with Takhar’s knowledge. Once again we note that counsel for Takhar did not take any objection to the statement of the judge or his direction at 89F-G. We reject this ground also. 102. Accordingly, we reject Takhar’s appeal against conviction. Appeal against sentence of Takhar 103. Takhar also appeals by leave of the single judge against the term of 29 years, less reduction for time served on remand, which the judge ordered that Takhar should serve in custody before the question of his release might be considered by the Parole Board. 104. Takhar was born on 1 June 1987. He was therefore 22 at the time of the offences and 23 when convicted and sentenced. He had made eight previous court appearances between 2003 and 2009. His convictions included six offences of robbery, one of possessing an offensive weapon in a public place and one of affray. He had served two previous custodial sentences, the longest being a Detention and Training Order of two years in 2005. 105. In passing sentence, the judge said that Takhar had been responsible for recruiting Sanghera to join his team to exact revenge on or punish Kieran Wynter and his associates over the trivial matter of the laser pen. Sanghera had been recruited as the man who would bring a gun to be used if need be, although other weapons were also available to the team. In the event, Wynter and his associates were not at the bar when the group returned. An argument developed between Takhar and Craig Martin, whereupon Sanghera had got out of the Fiat Alhambra with the gun, aimed at Craig Martin intending to hit him, but missed and struck and killed Mr Batth. The judge stated that he could not be sure that Sanghera intended to kill Martin, but he was at least reckless as to whether Martin lived or died. 106. With some hesitation, the judge said he would sentence Takhar not on the basis that he opened the door of the Alhambra for Sanghera, or pulled him from the car, so that he could carry out the shooting, but on the basis that Takhar knew that there was a real risk that in the course of the punitive expedition Sanghera might fire with intent to kill or cause really serious injury. However, he did find that when Sanghera got out of the vehicle with the gun, Takhar intended that Sanghera should fire. As the leader of the expedition, Takhar could have stopped Sanghera, but did nothing to do so. 107. The judge referred to Takhar’s poor criminal record, but said that his age at the time of the offence provided some mitigation. As the man who initiated and planned the expedition and recruited Sanghera, the judge considered that the minimum term for Takhar must be longer than the 28 year term imposed on Sanghera, and he therefore imposed the 29 year minimum period to which we have referred. 108. On behalf of Takhar it is conceded that the degree of planning involved and Takhar’s leading role in the enterprise were aggravating factors, as was the fact that the murder was committed in a busy public place, although the judge did not expressly refer to this when passing sentence. It is submitted that there were no other aggravating factors. In our view, however, Takhar’s criminal record was an additional aggravating factor. Section 143(2) of the Criminal Justice Act 2003 requires the court to treat each previous conviction as an aggravating factor if the court considers that it can reasonably be so treated. We are satisfied that they can be so treated. It is further submitted that the sentence failed properly to reflect the mitigating factors; in particular Takhar’s age and the absence of a finding that Sanghera intended to kill or that Takhar intended that anyone should be killed. 109. The starting point, as is accepted, was one of 30 years. As we have said there were significant aggravating factors. Although the judge was not satisfied that there was an intention to kill, it was Takhar’s intention from the outset that a gun should be used, if need be, to cause at least grievous bodily harm, and as events unfolded it became Takhar’s unconditional intention that the gun should be used for this purpose. 110. Having considered all the circumstances of this case, and all the submissions made on Takhar’s behalf, we have concluded that the judge was right to impose a minimum term on Takhar greater than that imposed on Sanghera, for the reasons he explained. Given the statutory starting point of 30 years, to which the judge had to pay proper regard in the case of both Sanghera and Takhar, the minimum term of 29 years that was imposed on Takhar, although severe on a young man of his age, properly balanced the aggravating and mitigating factors in his case. It cannot properly be described as either wrong in principle or manifestly excessive. 111. Accordingly, Takhar’s appeal against sentence is dismissed.

2012_01_24-2920.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/16/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/16

93b13cafc6ae8b18a7b430402124f2639e26cc7fb2f172b758434dcbd55b102d

[2023] EWCA Crim 852

EWCA_Crim_852

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral Citation No. [2023] EWCA Crim 852 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/01357/A5 Royal Courts of Justice The Strand London WC2A 2LL Friday 14 th July 2023 B e f o r e: LORD JUSTICE DINGEMANS HER HONOUR JUDGE MUNRO KC ( Sitting as a Judge of the Court of Appeal Criminal Division ) SIR ROBIN SPENCER ____________________ ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 ____________________ R E X - v – ALAN LUCKHURST ____________________ 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) ____________________ Mr A Richardson appeared on behalf of the Attorney General Miss K Aiken appeared on behalf of the Offender ____________________ J U D G M E N T __________________ LORD JUSTICE DINGEMANS: Introduction 1. This is an application by His Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1988 , for leave to refer to this court a sentence which he considers to be unduly lenient. We grant leave. 2. The offender, Alan Luckhurst, is aged 37 years. He was aged between 30 and 35 at the time of the offences with which we are concerned. Prior to the offences he was of effective good character. 3. On 26 th January 2023, he was convicted by a jury of eight counts of sexual assault, contrary to section 3 of the Sexual Offences Act 2003 and two counts of causing a person to engage in sexual activity without consent, contrary to section 4 of the 2003 Act . Sentence was adjourned for the preparation of a pre-sentence report. Other reports were also obtained. The victims of the offending have the right to lifelong anonymity, pursuant to the provisions of the Sexual Offences (Amendment) Act. 4. On 27 th March 2023, the offender was sentenced to six months' imprisonment, suspended for 18 months, concurrently on all offences, with a requirement that he attend an accredited Horizon programme for 35 days and participate in a rehabilitation activity requirement for up to 30 days. He was also ordered to be included on the child and adults barred lists; and a Sexual Harm Prevention Order was imposed. He will be included on the sex offender register for a period of seven years. 5. It is submitted by Mr Richardson on behalf of the Solicitor General that the sentence imposed was unduly lenient because it failed to reflect two serious and sustained courses of sexual assaults committed against two separate young women, in gross abuse of trust; the offences were predatory; and he selected young women over whom he had a position of power for his own gratification. Secondly, it is submitted that the overall sentence failed to reflect the serious nature of that conduct; that one offence alone merited a sentence of over two years' imprisonment because it involved the touching of naked breasts, instead of the sentence of six months' imprisonment which was suspended; and that the learned judge had failed to apply the guidelines properly. Thirdly, it is submitted that the approach taken by the judge failed to begin to address the number of offences: there were ten offences and two courses of conduct; there was no uplift for the different victims; and the sentences should have been ordered to run consecutively. 6. It is submitted by Miss Aiken, on behalf of the offender, that the sentence was not unduly lenient; and that although there were two complainants, the offending had taken place against each of them over two days and so it was difficult to describe the offending as sustained. It was recognised that normally for two separate complainants consecutive sentences would be imposed, but it is said that, having seen him give evidence at trial, the judge had been particularly impressed with the offender's mitigation: he had had a lonely upbringing; he had suffered financially and emotionally because of his offending; he had lost a deposit which he had used to buy a business which he could not then complete because of these proceedings; he had been the subject of adverse social media and press commentary; he was married with two young children, whom he had supported financially throughout these proceedings; and he had been the victim of a long delay in so far as the first set of offences were concerned, for which he was not responsible. It is submitted that in all the circumstances this court should not interfere with the sentence that was passed. 7. We are very grateful to Mr Richardson and Miss Aiken for their helpful written and oral submissions. Factual circumstances 8. It is necessary to set the facts out in some detail because of the course that we propose to take. In 2017, the first complainant, "A", who was aged 17, was studying for a hair and beauty qualification at a local college. The course required her to undertake 36 hours of work placements in different premises. Her first placement of two days was in February 2017 and was with a hair salon in Twickenham. She was instructed to attend at 8.45 am on 10 th February. She did so, along with another student. 9. She was met by the offender. He introduced himself as the manager. He showed both students a room at the back of the salon, which appeared to be a utility or staff room. There was also an office used by the offender. 10. Shortly after 11.15 am, the two students and the offender were all in the utility room. The complainant was washing up. The offender stroked her bottom (count 1) and said "Remember not to mix up the towels and the gowns". A was concerned, but took no action. 11. At 2.30 pm, the offender asked both students to go into his office, separately, to complete paperwork. After the second girl went in, he gestured for A to sit on a plastic chair. They started to complete the paperwork. The offender said that A was pretty. He placed his right hand on both of her thighs, causing her to be concerned. After they had finished completing the paperwork, the offender asked where she lived, and whether she had a boyfriend. A answered his questions and left the office. 12. During the course of that afternoon, the offender repeatedly touched A's bottom (count 2). He did so in a way to ensure that no one else would see. He called her "babe" and "darling". She finished work at about 6 pm that day and was not due to return until the following week. 13. On Monday 13 th February 2017, A returned to the salon. It was very busy. The offender asked her if she would be interested in working at the salon. He suggested that he could help her qualify more quickly than college, and that she could leave her studies. As the conversation finished and she walked away, the offender grabbed her bottom (count 3). 14. At about 4.30 pm, A went with the offender into his office. They sat in two chairs. He pulled his chair close to hers. He positioned himself so that her legs were in between his legs. He took hold of A's left hand with his right hand and placed it at the top of his thigh, close to his genitals. She moved her hand away. He then moved her hand on to his genitals, over his trousers (count 4). She could feel that his penis was erect. He asked her if she liked it. A asked him to stop and pulled her hand away. 15. There was a conversation about head massages. The offender asked A to stand up. Her back was towards him. He moved himself so that his genitals were touching her bottom, over their respective clothing (count 7). He was quite forceful. Every time that A tried to move away, he pulled her back, using his hands on either side of her hips. The offender roughly massaged A's head. He started to breathe heavily. He began to massage her neck and moved towards her shoulders and breasts. As he came close to her breasts, A pulled away. She could feel the offender's erect penis pushing through their respective clothing in the area of her lower back. She was very scared. She was concerned that no one else was allowed in the office without knocking, so that no one would come to her aid. 16. The offender then pulled A by her hips and forced her to sit on his lap. She could feel his erect penis. She quickly stood up and asked him to stop. He said "You can sit on my lap if you want, I'm not going to stop you". She replied that she did not want to. She was upset and uncomfortable. The offender said "I could have kissed you", and A replied "It wouldn't have happened". They then discussed arrangements for further work at the salon and the prospect of her starting as a hair stylist. The offender told her that she could not have a boyfriend if she worked at the salon because he was always "flirty" and had been in trouble before for taking it too far. He told A not to tell anyone about what had taken place between them. She stood up to leave and the offender once again squeezed her bottom (count 5). As she walked out, he placed his hand through her legs and touched her vagina, over her clothing (count 6). She walked out of the office and into the utility room. She believed that she was in the office for about 45 minutes. The offender appeared and said that she could leave for the day, and that she had been very helpful. A left straightaway. She reported what had happened to her parents and boyfriend that evening. They told her not to return to the salon. 17. A subsequently reported what had taken place to staff at the college. They informed the owners of the hair salon. The offender was suspended and a police investigation began. CCTV footage was obtained from the salon which effectively supported all that A had said. 18. On 3 rd March 2017, the offender attended at Hounslow Police Station by prior arrangement, in order to be arrested and interviewed. At the beginning of the interview he provided a prepared statement in which he confirmed that he had watched the CCTV footage but denied that he had behaved inappropriately. He said that he was a tactile person and had no sexual motive when he touched A. He answered "No comment" to all the questions asked of him. 19. There was a Victim Personal Statement from A, dated 21 st January 2023. She explained that working at the offender's salon were the worst two days of her life. She felt overpowered and taken advantage of. She said: "I was an innocent 17 year old. I felt dirty, felt it was all my fault, felt I deserved it … the only one suffering is me." She explained her experience had been made difficult by the substantial delay before the trial. As a result of the offender's behaviour, she no longer wanted anything to do with the hairdressing industry. 20. The matter was investigated by the police. It seems that there were other complainants who subsequently withdrew support for the prosecution. They therefore form no part of any sentencing exercise. 21. There was a very regrettable delay from the report in March 2017 until the prosecution commenced in October 2019. The offender appeared at the Magistrates' Court in November 2019, and his case was sent to the Crown Court at Kingston Upon Thames. He was remanded on conditional bail. 22. On 19 th December 2019, at a plea and trial preparation hearing, he pleaded not guilty. A trial was fixed for 5 th October 2020. Attempts were made to bring forward that date, but they were unsuccessful, in part because the Covid 19 pandemic struck. There were then further difficulties in arranging the trial, which it is not necessary to set out, the net effect of which was that the matter did not come to trial until January 2023. During that time the offender remained on bail. He had also managed to obtain his own hair salon at The Avenue in Worcester Park. 23. On 19 th June 2021 at a time when the offender was on bail in relation to the proceedings concerning A, a second complainant, "B", started to work at his salon on Saturdays. She had trained that summer and had become an apprentice. She started to work on other days in addition to Saturday. She found the offender's behaviour unprofessional. After about a week, the offender moved her away from a sink by placing his hand on her lower back, towards the top of her bottom. She put the action out of her mind. 24. A week or so later, a pattern of behaviour developed. There was a kitchen at the back of the salon, which would be used for washing towels. When B worked there, the offender would tell her that her posture was bad. He told her to stand up straighter and to stick her "boobs" out. He would put his arm along her back. He would ask her to go to the beautician's room and ask her to lie down so that he could "crack" her back. B felt uncomfortable, but thought that the offender was helping her. He would tell her to lie on her front and in unusual positions. He would tell her to be quiet so that clients could not hear. He also told her to do the same to him, despite her making it clear that she did not want to. 25. On one occasion, whilst in the kitchen, the offender pulled the front of B's dress away from her body and looked at her breasts. He said that she was wearing the wrong sized bra. He reached out, touched, and massaged B's breasts over her clothing (count 8). He said that she should have her breasts measured. 26. On other occasions, whilst saying that he was trying to help her back, the offender would press B's hand into his groin area and would use his own hand to touch her bottom. She tried to pull her hands away but was not always able to. B never said anything about what he was doing because she felt uncomfortable. 27. About two months into her employment, B and the offender were alone together in the early evening, waiting for customers to arrive. The offender asked her to go into the beautician's room to "crack" her back. She lay facedown on the bed. The offender "cracked" her back, but this time, he felt her legs too and said that she was "tight". He then pulled her dress up and pulled down her tights just below her bottom, revealing her underwear. He told her that she had nice knickers before pulling her tights up again. He smoothed her dress and stroked her bottom. He then told her to turn over and lie on her back. He reached across B and touched her breasts inside her bra (count 10). His hands were on her naked breasts for five to ten seconds. B froze and complied. He performed what appeared to be some further stretches on B and then asked her to reach her arms out with her palms face up. As she did so, he pulled her hands towards him and placed his clothed testicles in her hands (count 11). She immediately pulled her hands away. The offender turned and left the room. B could see that he had an erect penis underneath his clothing. He went to the bathroom and was there for approximately five minutes. B went to the reception desk to wait for the final clients to arrive. When he came out of the bathroom, the offender acted as if nothing had happened. 28. The next day, B did not go to work and was subsequently dismissed. 29. B told her mother what had taken place. Her mother and grandmother encouraged her to speak to the police, which she did with some reluctance. 30. On 24 th September 2021, the offender was arrested and taken to Croydon Police Station where he was interviewed. He again provided a prepared statement in which he said that he and B had not worked together very much, and that she was unreliable. He denied any sexual touching. 31. On 4 th January 2022, the case in respect of the offences against A was listed for trial. It was adjourned and re-fixed in July 2022. 32. On 26 th January 2022, the offender was charged with offences in relation to B. After the two indictments were joined, the trial went ahead on 16 th January 2023. It lasted nine days. The offender was convicted, as we have already indicated, by the jury of count 1 to 8 and counts 10 and 11. He was acquitted of count 9 (sexual assault, in which B had said that the offender had touched her breasts "probably every day"). 33. Sentence was adjourned for the preparation of a pre-sentence report. 34. In the meantime a psychiatric report was prepared on the offender by Dr Mala Singh. It seems that Dr Singh was not aware of the earlier set of offences against A and did not have access to the past medical records, but concluded that the offender was suffering from a generalised anxiety disorder and moderate depression. Dr Singh concluded that "he will not be able to cope with a custodial sentence due to his current mental state" – a conclusion which appeared to be based on the finding of moderate depression and the generalised anxiety disorder. 35. B provided a Victim Personal Statement. She said that the offender's behaviour had affected her confidence. She would start crying and found it difficult to stop. She suffered from panic attacks. She was self-conscious about her body. She kept asking why this had happened to her and what she could have done differently. She stopped going to college, and as a result had had to repeat a year. 36. The pre-sentence report which was prepared showed that the offender accepted with hindsight that his behaviour was sexually predatory. He was only thinking of himself, not his victims. He acknowledged that it was an abuse of his position of trust, but he continued to dispute what B had alleged against him. He denied being attracted to 17 year olds, or that he had received sexual gratification from his actions. The author concluded that he may have a sense of sexual entitlement. The sentence 37. In passing sentence the Recorder noted that the offender had employed two young women and had sexually assaulted both of them. He had gone significantly further than "making passes". He had taken the women to private rooms in the rear of the salons under the pretext of discussing progress. He felt that he had some sort of licence to behave the way he did. 38. The Recorder noted the financial and business impact the offending had had on the offender and his family. He took account of the delay. As regards the offences of causing a person to engage in sexual activity without consent, the Recorder considered it arguable that the offending included features of category 2 harm, as the victims were particularly vulnerable due to circumstances, but concluded that category 3 was more appropriate. 39. As regard culpability, the Recorder concluded that there was an abuse of trust but that there were no other features of higher culpability. 40. It is not entirely clear from the sentencing remarks how the Recorder approached the sexual assault guidelines, but it appears that he found the offences to fall within category A culpability, because they had an element of abuse of trust; and he found elements of category 2, but broadly category 3 harm. He said that the bulk of the offences would notionally fall in the middle of these combined categories, with a custodial sentence of 26 weeks. He noted that there were multiple and repeated offences and he noted that the second set of offences had occurred while the offender was on bail for the first set. He concluded that the offences passed the custody threshold, but not by the greatest of margins. He had regard to totality and, as already indicated, he imposed sentences of six months' imprisonment, suspended for 18 months. Relevant provisions 41. The Sentencing Council's guideline for offences of sexual assault provides that an offence falls within category 2 harm where there is the touching of naked breasts, or a sustained incident. Category 3 applies where no features of either category 1 or category 2 are present. Culpability A applies where there is an abuse of trust. It is common ground that count 10 (the touching of B's naked breasts) was a category 2A offence. One offence provides for a starting point of two years' custody, with a range of one to four years. A single category 3A offence provides for a starting point of 26 weeks' custody, with a range of a high level community order to one year's custody. 42. In assessing these sentences, we start with the proposition that the Recorder had to apply the Sentencing Council guidelines, unless he found that it was in the interests of justice not to do so. The Recorder made no such finding, and we confirm that on the material before us there is no such material that would justify such a finding. 43. We consider that count 10 (the offence against the complainant B) should be taken as the lead offence. That was a category 2A matter, with a starting point of two years' custody, with a range of one to four years. Having regard to principles of totality, all of the other offending against B should be aggregated on to that one offence. The aggravating features of the deliberate targeting, the deliberate isolation of a young trainee and the fact that the offences against B took place when the offender was on bail should be taken into account. 44. In our judgment the least sentence on count 10, following a trial and taking all those matters into account, would be a sentence of three years' custody, before taking into consideration mitigating features. There was no delay in relation to the counts involving the complainant B, but there was substantial mitigation available to the offender in his personal life – not only the effects of the offending and the financial punishment, which he had brought on himself, but also the effect that any sentence of imprisonment will have on his young family and the fact that he had carried out considerable charitable works in the past, the details of which are before us. Having regard to all of those factors, in our judgment a sentence of two years' imprisonment for count 10, to reflect all of the offending against B and all of the aggravating and mitigating factors, is the least sentence that could have been imposed. 45. The counts involving the first complainant were offences which fell within category 3A, with a starting point of six months' custody. There were numerous offences. The sentence on each will run concurrently. Having regard to all of those matters and the aggravating factors, which mirror those that were set out in relation to the second complainant (apart from the fact that the offending against B took place on bail), in our judgment the least sentence that could be properly imposed for each of those offences would be a sentence of one year's imprisonment, to run concurrently with each other, before having regard to the considerable mitigation. There was the mitigation already indicated, but in this respect there was also the issue of delay, which was substantial. It is right that that affected the complainant A very significantly, but it also affected the offender who had to live with the consequences of the outstanding trial and investigation over a prolonged period. Doing the best we can, and having regard to all those factors, we will reduce that sentence of 12 months down to a sentence of six months' imprisonment. That sentence has to be consecutive to the sentence in relation to the offending against B because it involved separate criminality and separate harm to A. 46. In those circumstances, we find that the original sentence was unduly lenient and we allow the Reference. We will impose the shortest possible sentence on the offender that we can, which is an overall aggregate sentence of two years and six months' imprisonment, made up of two years' imprisonment on count 10. The other sentences for the offences in relation to B of six months' imprisonment will run concurrently with each other and with the sentence on count 10. In relation to the offending against A, the sentences on each count will be six months' imprisonment, to run concurrently with each other, but consecutively to the sentence on count 10. The effect of an aggregate sentence of two years and six months' imprisonment means that the sentence can no longer be suspended, and therefore the order for suspension will be revoked. 47. That leaves the issue mentioned in Dr Mala Singh's report, that of suicidal ideation expressed by the offender. We are told by Miss Aiken this morning that the offender, who has not attended before us and who is at home, had also expressed suicidal ideas overnight. Miss Aikens solicitors have been in contact with him. 48. In those circumstances we direct that the offender report to the Kingston Upon Thames Police Station by 4 pm today. We will also direct that the prosecution should ensure that the police officers to whom the offender is to report are made aware of Dr Mala Singh's report. 49. The sex offender notification requirements will accordingly be extended for life. __________________________________ 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_07_14-5751.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/852/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/852

30235f82f3f5d0001e47150f491fff3cd4ae9aa42a051770d4e7bc100b5a8cfa

[2004] EWCA Crim 2954

EWCA_Crim_2954

crown_court

No: 200405489/A2 Neutral Citation Number: [2004] EWCA Crim 2954 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 4th November 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MRS JUSTICE HALLETT DBE MRS JUSTICE DOBBS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 114 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190

No: 200405489/A2 Neutral Citation Number: [2004] EWCA Crim 2954 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 4th November 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MRS JUSTICE HALLETT DBE MRS JUSTICE DOBBS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 114 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS C CUNNINGHAM appeared on behalf of the ATTORNEY GENERAL MR R HORWELL appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Solicitor-General for the Attorney-General seeks the leave of the Court, under the Criminal Justice Act 1988 , to refer a sentence said to be unduly lenient. 2. The offender is 23 years of age, having born in February 1981. On 13th July 2004 he pleaded guilty to three counts in the indictment against him. Count 1 was of possession of a firearm with intent to cause fear of violence, contrary to section 16 A of the Firearms Act 1968 and counts 2 and 3 were of possession of a bladed article, two folding lock-knives, contrary to section 139(1) of the Criminal Justice Act 1988 . On 2nd September 2004 he was sentenced by His Honour Judge Lambert, at Bristol Crown Court, to a total of three-and-a-half years' imprisonment, 3 years on count 1 and 6 months concurrently on each of counts 2 and 3, but consecutively to the 3 years on count 1. 3. In outline, what happened was that, on 11th April 2004, at about 1.30 in the morning, police officers attended a nightclub where there had been an altercation and a shot fired. The two people involved were pointed out to them, one of them: one of t hem was the offender. He squatted down behind a wall and sought to get rid of a handgun. He also had two folding lock-knives. He was arrested and he made full admissions in interview. 4. The circumstances, in a little more detail, were that when police attended, they had been informed that guns had been seen and a shot fired. When they followed the offender into an alleyway he, as we have said, sought to get rid of a handgun; he failed to do so, and to the nature of that gun we shall return in a moment. He also had two folding lock-knives in his possession and was wearing a bullet proof vest. 5. The gun was a Bruni 1911, with a 13 centimetre barrel. It originally had been designed to fire blanks but had been converted to fire 8 mm steel balls attached to the blank cartridges. The steel balls had a smaller dimension than the barrel and so gas generated by firing partly escaped. There was enough energy to discharge the ball from the barrel, but insufficient to activate the recoil process: so the next round had to be produced from manual recocking rather than automatic reloading. There was evidence from an expert that the gun was a prohibited weapon, as defined by section 5(1) of the Firearms Act 1968 , its barrel being less than 30 centimetres in length and its overall length being less than 60 centimetres. 6. The offender, having been arrested, was interviewed. He said that he had been out with friends and at the nightclub. He had felt threatened by another group in the club and had gone home to collect the gun. When he came back, and was outside the club, he again felt threatened and though his brother was likely to be shot by someone from the other group. So, he fired the gun, once, to threaten that other person. He said he had not pointed the gun to kill. He had fired it merely to scare the other group. After the initial shot, the gun had jammed, for reasons which we have already sought to explain. He had the two knives because others also had knives. 7. Section 287 of the Criminal Justice Act 2003 came into force on 22nd January 2004, that is to say, 3 months before these offences were committed. It imposes a minimum term of 5 years in relation to an offender aged 18 or over, who is in possession of a prohibited weapon. No offence of possession of a prohibited weapon contrary to section 5 such as to trigger that mandatory penalty, was included in the indictment. It is apparent from the sentencing remarks of the learned judge that he was unaware that this weapon was a prohibited weapon. We shall come a little later to events before him, in relation to the possible amendment of the indictment. As will emerge, nobody on behalf of the prosecution suggested that an amendment should be made to charge an offence contrary to section 5 . 8. After the judge had passed sentence, the case was re-listed before him, on the same day. At that stage, prosecuting counsel reminded the judge of the minimum 5 year sentence for possession of a prohibited weapon. The judge's response was that he was aware of that, but, bearing in mind that no offence, contrary to section 5 had been charged, the statutory minimum did not apply. He commented that he had never been told that this particular firearm was a prohibited weapon. 9. The offender has no previous convictions. There was before the sentencing judge a report indicating that the offender claimed that his family had been threatened as part of a local gang dispute. He had bought the gun and knives for his own protection and had used the gun to frighten. The assessment made of the offender, by the probation officer, was that he constituted a low risk of re-offending, taking into account his lack of previous offending, although he posed a high risk of causing serious harm, having regard to the current feud involving him and others. 10. The mitigation advanced on behalf of the offender was that he had pleaded guilty at the first opportunity, and the wearing of the bullet proof vest was indicative of the offender's genuine belief that he had been threatened in a manner likely to cause him serious harm. It was also stressed that he had fully co-operated with the police when he had been interviewed. 11. The learned judge, in passing sentence, said that he did so on the basis that, in the absence of any further evidence from the Crown, he could not be sure that the 'bullet' would have had the capacity to kill somebody. The offender had made a premeditated use of the gun, but there was no discharge of the weapon amounting to a threat to life of which he could be sure. He commented, in relation to the knives, that their carrying by young men had to be deterred. 12. On behalf of the Solicitor-General, Mr Horwell draws attention to five aggravating features. First, the firearm was a prohibited weapon, possession of which carried a minimum term of 5 years. Secondly, the offender had deliberately armed himself in anticipation of using unlawful violence and then returned to the scene so armed. Thirdly, the firearm had been discharged in a public place, when others were present. Fourthly, the offender had been assessed as presenting a high risk of causing serious harm to others. Fifthly, such offences are prevalent. 13. Mr Horwell draws attention to the mitigation to be found in the plea of guilty and the absence of previous convictions. 14. Mr Horwell advances three submissions in support of the general proposition that the sentence passed by the learned judge was unduly lenient, in failing to reflect the gravity of the offence and the new statutory minimum term for the possession of a prohibited weapon, and public concern about firearms offences. First, he submits that it is not necessary to incorporate in an indictment a count alleging possession of a prohibited weapon, contrary to section 5 of the Firearms Act, in order to trigger the statutory minimum sentence of 5 years. Secondly, he submits that, if no such count is necessary, the sentence passed by the learned judge ought to have been the minimum of 5 years. Thirdly, in the alternative, if the addition of a section 5 count is necessary, the total sentence passed by the learned judge was unduly lenient. 15. In support of the first of those propositions, Mr Horwell sought sustenance from a judgment of this Court given by the Lord Chief Justice Lord Woolf in Benfield & Ors [2004] 1 Cr App R(S) 307. In that case, the issue which the Court was addressing was the propriety of an automatic life sentence in relation to a plea of guilty to a single count of robbery. The statutory provision which the Court was considering was section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 . That section requires a life sentence to be imposed for a second serious offence. Section 109(5) identifies those offences which are serious for the purpose of that section. They include: "(g) an offence under section 16 , (possession of a firearm with intent to injure) section 17 (use of a firearm to resist arrest)or section 18 (carrying a firearm with criminal intent) of the Firearms Act 1968 (h) robbery, where at some time during the commission of the offence the offender had in his possession a firearm or imitation firearm within the meaning of that Act ." 16. The question which was being addressed in paragraph 14 of the judgment, on which Mr Horwell relies, is whether, in that statutory context, it is necessary to include in an indictment an additional count in relation to a firearms offence in order to establish that the offence of robbery is one within (h), that is to say, the offender had in his possession a firearm or imitation firearm. 17. In that context, Lord Woolf said this, at paragraph 13: "However, the fact that the position that arises in relation to s 109(5) is different from that which arose under the Sexual Offences Act does not mean that it is not important that a defendant should have the opportunity of obtaining the verdict of a jury if there is an issue as to whether or not he falls within s 109(5) (h). Where there is an issue, that issue will be determined in favour of the defendant unless he has been convicted of an offence which establishes that at the time of the commission of the robbery he was in fact in possession of a firearm, or an imitation firearm, or he unequivocally admits that that is the position 14. We consider that that is an outcome which is to be preferred to requiring the indictment always to contain an additional count of a firearm offence. If the indictment always had to include an additional offence of that sort then in practice s 109(5) (h) would add nothing to s 109(5) (g). Furthermore, it would mean that where an offender did not dispute that he had in his possession at the time of the offence a firearm or an imitation firearm, the indictment would have to be cluttered up with an extra count purely for sentencing purposes. Accordingly, we consider that it is only where there is an issue that that is required. We also consider that the fact that there is not an issue must be established to be abundantly clear from what happened in the court below. We recognise that this will mean inconvenience. In many cases it will involve looking very carefully at the proceedings in the court before whom the appellant appeared. It will involve doing this not only with regard to the more recent offence (the later offence), but also in respect of the earlier offence to see if that offence is one which pursuant to s 109(5) (h) is a serious offence." 18. As it seems to us, paragraph 14 in the judgment in Benfield , which was clearly obiter and does not sit easily with the judgment in R v Eubank [2002] 1 Cr App R(S) 11, in so far as Eubank required the addition of a count does not lend sustenance to Mr Horwell's submission. We say that for two reasons in particular: first, as is apparent, the Court in Benfield were considering the statutory provisions of section 109 , which are not only quite different from the provisions with which this Court is concerned, but they establish a particular regime in relation to the imposition of life sentences, which is not the context of the present case. Secondly, Lord Woolf was at pains to emphasise that "the fact that there is not an issue must be established to be abundantly clear from what happened in the court below." It is apparent, in part from what we have already said and in part from what we are about to say, that it was far from clear in the court below in the present case what the true position was. 19. Miss Cunningham, on behalf of the offender, pointed out that there was a stage, prior to plea and sentence, where there was a discussion before the learned judge and counsel as to whether or not the indictment should be amended. The prosecution wanted to substitute a count for an offence contrary to section 16 of the Firearms Act in place of the count charging an offence contrary to section 16 A. The difference between those two offences is that, under section 16 , the possession of the firearm has to be with intent to endanger life, or to enable another person to endanger life, whereas, under section 16 A, the count to which the offender pleaded guilty, possession of the firearm is accompanied by an intent to cause fear of violence. 20. After some discussion, the prosecution withdrew their application to amend the indictment to charge a count under section 16 rather than section 16 A. At no stage did that discussion include any suggestion that a count should be added of an offence contrary to section 5 . In those circumstances, it is not, as it seems to us, in the least surprising that, by the time the judge came to pass sentence, he was unaware that the firearm in question was being said to be a prohibited weapon within section 5 . 21. Mr Horwell accepted that it would be no great burden on the prosecution if they were required, in cases in which they sought to invite a judge to impose the minimum 5 year term under section 5 , to add a count under section 5 , if one was not already present in the indictment. 22. As it seems to us, that is the course which should be followed. It will avoid the confusion which was manifest throughout this case in the Crown Court. And it will make clear to a defendant, and those advising him, that he is at risk of a minimum sentence of 5 years if an offence under section 5 is proved against him or admitted by him. In our judgment, no unnecessary cluttering of the indictment will occur if the prosecution follow that course. It follows that we reject Mr Horwell's first submission and it is unnecessary to consider his second submission. The remaining question is whether or not the sentence passed by the learned judge was unduly lenient. 23. In that regard Mr Horwell rightly drew the Court's attention to R v Avis [1998] 2 Cr App R(S) 178, R v Corry [2000] 1 Cr App R(S) 47 and R v Doyle [2001] 2 Cr App R(S) 8. Miss Cunningham submits that, in the light of all the circumstances of this case, the sentence passed by the learned judge should not be characterised by this Court as being unduly lenient. In the alternative, if it is to be so characterised, it should not, in the discretion of the Court, be interfered with. 24. It is a striking feature of this case that this young man was hitherto of good character. It is comparatively unusual for firearms offences to be committed by people with a previously clear record. The sentence which the learned judge passed, as it seems to us, was not one, for the reasons which we have already given, which ought properly to have been influenced by the minimum 5 year term. The learned judge was undoubtedly correct in imposing a consecutive sentence in relation to the knives which were carried on the same occasion. It is pertinent that this young man pleaded guilty at an early opportunity. Taking all of these circumstances into account, we take the view that the sentence passed by the learned judge was within the proper ambit of the judge's sentencing powers. Perhaps the time has come to repeat the observations of Lord Lane CJ which were made in Attorney-General's Reference No 4 of 1989 11 Cr App R(S) 517 at 521, because those observations are as pertinent today as they were when they were first uttered. We do not, of course, overlook the fact that the present application by the Solicitor-General was made because of the arguments sought to be advanced in relation to the statutory minimum under section 5 . However, what Lord Lane said was this: "It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased - with all the anxiety that that naturally gives rise to - merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular the guidance given by this Court from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature." This application is refused.

2004_11_04-367.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2954/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2954

172c29c38c586fba5fc5337662c47cf150d105fffe1daefe37dbca35c037c04c

[2020] EWCA Crim 1360

EWCA_Crim_1360

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 [2020] EWCA Crim 1360 CASE NO 2019 04531 B4 Royal Courts of Justice Strand London WC2A 2LL Friday 16 October 2020 LORD JUSTICE MALES MRS JUSTICE CHEEMA-GRUBB DBE HIS HONOUR JUDGE EDMUNDS QC REGINA v PATRICK CLEERE 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 D PARVIN appeared on behalf of the Appellant MR R SELLERS appeared on behalf of the Crown J U D G M E N T LORD JUSTICE MALES : 1. On 21st November 2019, at Harrow Crown Court, the appellant Patrick Cleere, now aged 67, was convicted of one count of perverting the course of public justice. He was subsequently sentenced to 18 months' imprisonment to run consecutively to a sentence which he was already serving. His former wife was also convicted and received a suspended sentence. Other defendants were acquitted. He now appeals against conviction by leave of the single judge. 2. The ground of appeal is that the judge was wrong to allow the prosecution to adduce evidence of the appellant's previous conviction for fraud, a fraud which had been perpetrated on elderly victims. It was a roofing fraud. It was the trial which led to that conviction for fraud which gave rise to the facts of the present offence. 3. The appellant was due to stand trial at Blackfriars Crown Court on 16th July 2018 accused of the roofing fraud. It was a case which was expected to last some weeks, although we were told that it had had a fairly chequered history with a number of adjournments and that the appellant had instructed his counsel to apply for a further adjournment that morning. On the morning when the trial was due to start the appellant, together with members of his family and friends, including those who in due course became his co-defendants on the perversion of the course of justice allegation, arrived outside Blackfriars Crown Court. From about 9.15 they located themselves in the vicinity of the court entrance and approached members of the public who were making their way into and out of the court building. They explained that they were representing a company called Candleverse, which sells candles online, and invited those they approached to visit the company website. In what might be thought an unusual marketing strategy, they handed out £20 notes to the people they approached together with Candleverse business cards. We were told that a total of £2,000 was collected in due course from those to whom this money had been handed out. Clearly, Candleverse would need to sell a lot of candles to recoup this outlay and show a profit. Those approached included lawyers, court staff, police officers, defendants, witnesses and jurors, both those who were serving on juries in other cases and those who might be selected to serve on the jury to try the appellant for fraud. 4. The prosecution case was that the appellant had made a deliberate attempt to frustrate his trial because he knew that jurors would be instructed to bring to the attention of court staff anything or anyone that they recognised. Thus it would be inevitable that jurors who had been handed cash and Candleverse business cards would raise this and would not be able to participate in the trial; indeed, Candleverse was to feature in the trial as the appellant was a director of the company. It was not alleged to have been involved in criminal activity itself, but it was a name which the jurors would hear and thus, having received these business cards and been given money, would be duty bound to raise that and would be unable to serve or to continue to serve. The prosecution said that the appellant's object to abort the trial was achieved, and indeed the court decided that it could not start the trial on that day (16th July) due to jury contamination. The trial was adjourned. 5. It did take place in due course and the appellant was convicted and sentenced. It is that conviction which gives rise to the present appeal, the submission being that, at the trial for perverting the course of justice, the judge ought not to have allowed evidence of the fact of that conviction to be put before the jury. 6. The defence case, as set out in the defence case statement and in the appellant's evidence at trial, accepted that he together with co-defendants had attended the area around Blackfriars Crown Court and had handed out the money and business cards. He said that this was conducted as part of a legitimate strategy to promote the Candleverse business and that the material and money had been handed out to potential customers with a view to inviting them to make a purchase from the Candleverse website. He denied that he had any intention of interfering with the criminal proceedings. It was a promotional strategy which took place on that date and at that location simply as a matter of convenience. The cash was intended to be an incentive to visit the website and was supposed to be used towards the purchase of candles, although it was cash which was handed out without any strings attached to the way in which it would be used. It was not, for example, a money off voucher or anything of that nature. 7. In his evidence the appellant added that he had expected only to be at court for a short period of time on 16th July and had intended to carry out a promotion at Borough Market once he was free to leave court. However, when he arrived outside the court building in the morning he decided to do a practice run so that those helping him with the promotion could get use to the promotion and how people would react to being handed cash. He said that he had carried out the promotion with success elsewhere. Indeed, he called a witness in his support (a lady called Rita Choudhury, who was employed at WH Smith in Ealing) who gave evidence that she had been handed a £20 note and a Candleverse business card on an occasion when she had been working in Ealing. The prosecution were not in a position to challenge that evidence in any significant respect because no notice had been given, either in the defence statement or in any other way, that this witness would be called or even that such marketing had been carried out on previous occasions in Ealing. 8. In opening the case the jury were told, of course, that the appellant had been due to stand trial at Blackfriars Crown Court on the morning in question, but they were not told either the nature of the offence with which he was charged or the fact that he was convicted. There were apparently attempts to agree some wording to deal with that position, but in the event that was overtaken by what occurred during the appellant's cross-examination and the judge's ruling which then followed. 9. During cross-examination by counsel acting for the co-accused Rita Cleere (the appellant's former wife) evidence was given which we must set out. It appears that counsel acting for the appellant's former wife had previously represented the appellant both in the fraud trial which eventually took place and at earlier stages of the present proceedings. In the light of that, the questions which were asked were somewhat unfortunate in our view. We set them out now: "Q. At the time that we’re looking at, July 2018, what was your primary occupation? What were you doing? A. I cared for my grandson Kian for years, and permanently for the last two or three years it’s just me and him living together. Prior to that, since he’s born I’ve always been with him, in the sense of being around him. Q. Why did you have to care for Kian? A. He is classic autistic, he is doubly incontinent, he doesn’t speak, but he is a living angel. Q. What level of care does he require? A. 24/7. He’s not -- I don’t see it as a burden to care. It’s just care for him. He is --as I said, we are like that. We don’t have any -- we have 100% non-verbal communication, so it’s not like -- basically doubly incontinent is the big issue." 10. At that point, the judge intervened, perhaps not surprisingly, to question the relevance of this evidence. Counsel then moved to a different topic. 11. That led to an application by the Crown to adduce bad character evidence of the appellant, namely his conviction for the fraud trial. It was submitted that the answers in cross-examination to counsel for the appellant's wife had asserted good character and had given a false or misleading impression to the jury so that the evidence became admissible under the bad character provisions of the Criminal Justice Act 2003, in particular section 101(1)(f). 12. The judge acceded to that application, and in a ruling which he gave in due course he decided that the evidence was admissible under two of the provisions of section 101. His reasons were as follows: "Having listened recently to his evidence, and taking his evidence in the round, Mr Cleere was clearly trying to give the jury the impression of a thoroughly altruistic and hardworking legitimate businessman. That was certainly his intention. I find that section 105(2)(a) applies, that a defendant is treated as responsible for the making of an assertion if the assertion is made by the defendant in the proceedings. I am of the view that the clear impression running though his evidence was the one I have stated, considering the combined effect of his evidence that -- his company had a spiritual dimension, and the example he gave of a parent grieving for a deceased child; the long history and expertise behind the family business, Candleverse, and the very high quality of its product; his role as a carer for a grandson, with full details being given of the child’s disabilities in answer to the simple question -- what was your occupation in July 2018; the fact that the trial was the last thing on his mind. This impression was not inadvertent, but very much the intention of the defendant in my view, having listened to the evidence. ... There is nothing to suggest that what the defendant said about his grandson is untrue, nor what he said about the company and its product. However, the evidence he gave in sum total would leave the jury with a wholly misleading impression of him. This is to be balanced by the jury hearing of the single conviction he was tried for at Blackfriars -- a roofing fraud on the vulnerable and elderly. There is nothing unfair or disproportionate about this, it simply equips the jury with a more truthful and balanced picture of the defendant, both the good and the bad aspects of his character. This is especially so as he chose to emphasise the caring side of his character to the jury, which may well be true, but taken in isolation is misleading. I have considered my discretion to exclude under Section 78 of PACE, and consider that the introduction of this single conviction, and not any of the other 50 previous convictions recorded against him, achieves the right balance." 13. The judge ruled also that Gateway (d) was passed because the evidence was relevant to an important matter in issue between the prosecution and defence. That arose because the appellant said in evidence that the trial was the last thing on his mind that day. The judge said it was therefore relevant for the jury to know the nature of the allegation, which was serious, and the fact that the appellant was in fact guilty of it. 14. In the event, however, when he came to direct the jury, the judge did not direct them on that possibility, and it is unnecessary therefore to say any more about it. The summing-up and the submissions on this appeal have been concerned with the question of false or misleading impression. We note that the section refers not only to a false impression but also to a misleading one and this is the basis on which the judge admitted the evidence. It appears that the evidence given was in fact true, but the judge formed the view that it was misleading for the reasons which he explained. 15. When he came to direct the jury, the judge referred to the aborted proceedings as being concerned with a conspiracy to defraud homeowners, including the elderly, in connection with a roofing fraud. He referred also to the appellant's evidence about building up the Candleverse company over many years and being a legitimate business, and his evidence about being the full-time carer for a seriously disabled grandson and saying that the case on 16th July 2018 was the last thing on the appellant's mind. The judge said that the appellant was perfectly entitled to ask the jury to consider those matters in his favour, but that as a result the prosecution had been allowed to present evidence which showed that there may be another side to his character apart from those worthy aspects, namely the fact that he was found guilty of the conspiracy to defraud for which he was due to be tried and that it involved the defrauding of elderly home owners in a roofing fraud. The judge directed the jury that the prosecution asserted that the appellant was trying to mislead them when he gave evidence about being a caring person and a legitimate businessman, while the defence said that it was not misleading because what he had said about Candleverse and the care of his grandson was true. The judge said that if they were sure that the appellant was trying to mislead them, that would not mean that he was trying to mislead them about everything, but it was evidence that they could use in deciding whether or not he was a truthful witness. If they were not sure that the appellant was trying to mislead them then the previous conviction would not be relevant. He went on to warn them in standard terms that the conviction only formed a part of the evidence, that they should not convict the appellant only or mainly because of it and should not be prejudiced against him, and that it did not necessarily follow that he was guilty of the fraud. 16. On appeal, Mr Parvin for the appellant has submitted that the judge was wrong to allow the evidence of that conviction to go before the jury, together with the information about the nature of the fraud, in circumstances where the parties had been careful up to that point not to provide the jury with information about the nature of the allegations or the fact of the conviction. He submitted that this would have a seriously adverse effect so as to render the trial unsafe and emphasised the fact that the appellant's answers were not suggested to be untrue. He was in fact the carer for his grandson, who suffered from the disabilities about which the appellant had given evidence. He accepted, however, realistically and necessarily, that this evidence did present the appellant in a positive light. It therefore did give a positive impression to the jury, but he submitted that it was not such that the evidence should have been admitted. The appellant had little or no choice but to answer the question which had been put to him in cross-examination. He could not have anticipated the application which would then follow. 17. For the prosecution, Mr Sellers has supported the decision made by the judge, submitting that the evidence did give a false impression, and that the gateway in question is not limited to allowing bad character to be given when the evidence given or assertion by the defence is untrue. He emphasised that the trial judge was best placed to decide how to deal with this matter. 18. It seems to us that the judge was right to say that the evidence did amount to giving a misleading impression. The evidence went further, and unnecessarily further, than simply answering the question which had been asked, which was limited to what the appellant's primary occupation was at the time of the proposed Blackfriars trial in July 2018. The appellant took the opportunity not only to say that he was the carer for his grandson but to emphasise the disabilities from which his grandson sadly suffers and to emphasise the positive aspects of the appellant's character in caring for him in a devoted manner. We would accept, therefore, that the judge was entitled to consider that this passed through the relevant gateway, but this does not necessarily mean that the evidence had to be admitted in accordance with the prosecution application. The judge referred to having considered an exercise of discretion to exclude this evidence, although he said that he thought admitting it created the right balance. 19. We would respectfully part company with the judge on that issue, having regard to the way in which the evidence came out, which was effectively on the spur of the moment in response to cross-examination by a co-defendant's counsel, and to the serious impact upon the trial and the picture therefore that the jury would have had that adducing this evidence resulted in. It would have effectively transformed the jury's view of the proceedings in Blackfriars by giving them the information in question. We think therefore it would have been better if this evidence had been excluded. 20. However, the question ultimately is whether this conviction is safe. In giving permission to appeal the single judge drew express attention to this question and commented that the nature of the appellant's case was far-fetched and that it may well be concluded that the jury would have reached the same conclusion without knowing about the conviction and that this is something which the full court would need to consider. We have considered that matter with considerable care, and we have reached the firm view, in agreement with the provisional view reached by the single judge, that the defence here was far-fetched and that the conviction in the circumstances which we have described was entirely safe. For that reason we dismiss this appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

2020_10_16-5000.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1360/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1360

f69962f612f90bd0181b361711c11835c9a327d4576ab74221e80bb0647675be

[2023] EWCA Crim 1569

EWCA_Crim_1569

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1569 Nos. 202202076 B4 202202101 B4 202202106 B4 202301911 B4 Royal Courts of Justice Thursday, 30 November 2023 Before: LADY JUSTICE WHIPPLE MR JUSTICE GOSS HIS HONOUR JUDGE DENNIS WATSON KC REX v ALFIE FERGUSON KAIYAN DECORDOVA SAMUEL BARTLEY JAMAL DAKISSAGA-BENITEZ __________ 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 I. Henderson KC appeared on behalf of the Appellant Ferguson. Ms S. Elliott KC and Ms K. O’Raghallaigh appeared on behalf of the Appellant Decordova. Ms S. Tafadar KC appeared on behalf of the Appellant Bartley. Mr A. Campbell-Tiech KC appeared on behalf of the Appellant Dakissaga-Benitez. Mr J.C. Dawes KC appeared on behalf of the Crown. _________ JUDGMENT LADY JUSTICE WHIPPLE: 1 At around 9 o'clock on 23 October 2020, 17-year-old Bubacar Jabbie was walking alone towards his home on Westbury Road in Walthamstow when he was attacked and killed by the appellants. He was stabbed through the chest by the appellant Ferguson and died yards from his home. He was discovered by a passer-by who contacted the emergency services. He was pronounced dead at the scene. Buba, as he was called by his family, was killed just outside his home. He was seen there by members of his family. The victim impact statements describe the trauma of the events of that night and the family's lasting distress at Buba's loss. 2 Four young men were convicted of his murder on the basis of joint enterprise following a 10-week trial at the Central Criminal Court before Her Honour Judge Dhir KC. At the time of the murder three of them were aged 17 - Ferguson, Bartley and Dakissaga-Benitez ("Benitez") - and one was just 18, Decordova. With the leave of the single judge, Ferguson, Bartley and Decordova appeal against the sentences imposed for the murder. The fourth, Benitez, applies for an extension of time of 340 days in which to apply for leave to appeal which application has been referred by the registrar to the full court. In the circumstances we grant that extension of time and we grant him leave to appeal also. 3 All advocates representing the appellants in this Court represented the at trial also except for Mr Campbell-Tiech KC who acts for Mr Benitez. Mr Dawes KC prosecuted at trial and appears in this court also. We are grateful to all counsel and their legal teams for their most helpful submissions. Sentences 4 The sentences imposed were as follows, taking the youth defendants first and putting them in descending order of length of term imposed, finishing with the single adult defendant: Ferguson was detained at His Majesty's Pleasure for life with a minimum term of 22 years; Bartley was detained at His Majesty's Pleasure for life with a minimum term of 19 years; Benitez was detained at His Majesty's Pleasure for life with a minimum term of 17 years; and Decordova was sentenced to custody for life with a minimum term of 20 years. Each appellant was given credit for time served on remand. The usual consequential orders were made. Facts 5 The facts can be shortly stated. The appellants came from the Priory Court Estate, 15 minutes' walk from Westbury Road. The appellants all associated with the Higham Hill/Priory Court Boys gang. They had a rivalry with gangs from their immediate area, including a gang called the Drive Marlowe and another called St James or the Mali Boys. They had embarked upon a ride-out to an area controlled by rival gangs and they were armed with weapons. The route taken by the group to get to Westbury Road was unusual. The appellants used the route to try to avoid CCTV cameras. 6 The post-mortem examination of the deceased revealed a single stab wound to the upper left chest which had penetrated the left first rib and upper part of the breastbone. The track was 12 centimetres in length and had passed into the upper aspect of the chest cavity, damaging the aorta and trachea before terminating by impacting the right side of the spine at the back of the chest wall. The cause of death was the volume of blood lost from the wound. Incised wounds were found on the palmar aspect of the left ring and left little finger, typical of defensive wounds. 7 After the murder, the defendants fled on foot and bicycles back to the Priory Court Estate. Once the appellants reached that estate, they entered an area for about 30 minutes and re-emerged wearing different clothes. Footage showed the group hiding when hearing a police siren. The appellant Bartley then gave a false name to order a taxi to take the group away from the estate. The appellants were arrested on 25 March and in interview they all answered "no comment". Sentencing Remarks 8 In her clear and well-structured sentencing remarks, the judge noted the circumstances of the attack and its devastating impact on the family of the deceased. She concluded that this was a professional, co-ordinated, planned ride-out. The planning included sourcing clothing to conceal identity, wearing face masks on the way to Westbury Road, leaving mobile phones behind, using a route to avoid detection on CCTV and having a plan to meet and leave together as well as a place to go afterwards to hide weapons. She described the group as "vigilant and organised". 9 The police had obtained recordings of telephone calls and face-to-face visits with Ferguson and Decordova while they were in custody awaiting trial. Those confirmed the planning of this attack and revealed a lack of remorse for the murder. Having originally denied presence at the scene, in their amended defence case statements the appellants accepted they were present at the scene but said that the purpose of the trip had been to steal drugs. She noted that Ferguson and Bartley tried to blame the deceased for what happened, saying the deceased had a knife, but he did not have a knife. 10 She recorded that Ferguson had composed a video after the killing with pictures of the deceased's home set to drill music with lyrics and emojis added to the footage. The judge held that this was a glorification of murder. The judge held that each appellant was carrying a large knife. She was not sure if Decordova was carrying a shot gun, as the prosecution had alleged. She held that Ferguson’s "weapon of choice" was a knife, and that he had a particular interest in large knives which he admitted buying and selling regularly. 11 The fatal blow was administered by Ferguson with a knife he accepted he had taken to the scene. Bartley was close by. Benitez and Decordova were a little further away, each ready to lend support when needed. The deceased was not the intended target. 12 Turning to sentence, the judge reminded herself of schedule 21 of the Sentencing Act 2020 and of her role in fixing the minimum term for each defendant taking account of the aggravating and mitigating factors, including age and maturity and personal circumstances. She referred to the Sentencing Council's definitive guideline on sentencing children and young people. She took account of R v Karolia [2021] EWCA Crim 1839 . 13 The judge identified the following aggravating features: (a) the extent of and the sophisticated nature of the planning; (b) this was a group attack on a single victim; (c) the victim was defenceless and unarmed; (d) the murder was committed in a public place, witnessed by members of the public and residents of Westbury Road; (e) knives were taken to the scene; (f) the group set out with the intention of causing someone at least really serious harm; (g) no remorse was shown by any member of the group for their actions. The judge identified the following common mitigating features: (a) relative age and immaturity; (b) lack of intention to kill; (c) the fact that the early part of their time in custody was served during the pandemic. 14 The judge then came to sentence the appellants individually. She noted that Ferguson was 17 years and seven months old at the time of the murder, having a date of birth of 16 March 2003. He had two previous convictions, the first in 2018 for assault occasioning actual bodily harm for which he was given a six-month referral order for an offence involved a group attack on a single male, punching and kicking him; and the second in 2020 for possessing an offensive weapon for which he was given a nine-month referral order which involved being found with cannabis, cocaine and a lock knife in his possession. The aggravating features in his case were that he was the stabber, using the knife with such force that the knife cut the bone; further, he made a video after the killing. The mitigating features were that he had had a difficult childhood, in care from a very young age until his mid-teens. She imposed a minimum term of 22 years. 15 So far as Mr Bartley was concerned, he was 17 years and one month at the time of the murder with a date of birth of 16 September 2003. The judge identified the aggravating features in his case as being his two previous convictions, the first a conviction in 2020 for possession of cannabis and, secondly, a youth conditional caution in 2020 for four offences of criminal damage, two assaults occasioning actual bodily harm and possession of an offensive weapon. The judge held that Bartley was very close to Ferguson when the fatal stabbing took place. He was able to see what happened and to give assistance. He was armed and ready, having a large knife in his hand. The mitigation personal to him was that he was young and immature, that he was not the person who had stabbed the deceased. Further, he was receiving help at the time from the Wilderness Project where he had done well for eight months, after which his attitude had changed and he had disappeared. In his case the judge imposed a minimum term of 19 years. 16 As to Mr Benitez, the judge noted that he was 17 years and two months old at the time of the murder. His date of birth was 29 August 2003. He had one previous conviction for various offences, all committed after the date of this murder, for which he had received a 10-month referral order (those offences were taking a vehicle without consent, possession of a bladed article, driving without a licence and driving without insurance). She noted that Benitez came to the scene and left the scene by bike; he did not get off his bike to support the attack and during it he was further away. The judge recognised his mitigation as age, lack of maturity and his personal factors, including academic achievements, noting that he had offers of places at three universities at the time of sentence. She imposed a minimum term of 17 years. 17 Turning then to Decordova, the judge noted that he was just 18 at the time of the offence with a date of birth of 10 October 2002, so he was just a week past his eighteenth birthday. He had no previous convictions but there was evidence that he had previously been involved in acts of violence involving weapons. He was the oldest in the group, and an integral part of the team. She identified the aggravating features in his case, that he was involved in the planning, going with Ferguson to source and collect a change of clothing and being involved at all stages in the planning of the attack. The mitigating factors were that he was only just 18, he was immature, he was not the stabber and he had a difficult relationship with his mother and that had had a profound effect on him. The judge was aware of the evidence as to his character, including his skills in football and assistance in the scouts group. She imposed a minimum term of 20 years. The Appeals 18 Mr Henderson KC represented Mr Ferguson. He submits that that term imposed was manifestly excessive or wrong in principle for two reasons: first of all, because the judge erroneously treated lack of remorse as an aggravating feature and, secondly, because the judge failed sufficiently to mitigate the sentence or to dilute the aggravating features in light of Ferguson's age. In oral submissions Mr Henderson supported his written grounds, focusing in particular on Ferguson's young age and immaturity. By their respondent's notice, the prosecution accept that lack of remorse should not be treated as an aggravating factor but otherwise contend that the judge weighed aggravating and mitigating factors appropriately. 19 Ms Tafadar KC advanced two grounds of appeal on Bartley’s behalf. First, she submitted that the judge afforded inadequate weight to the mitigating factors in Bartley's case. She identified in particular that the judge should have taken greater account of (1) his background, including the fact that he had no previous convictions for knife crime, (2) the lack of evidence that he was closely involved in the planning of this offence, unlike Ferguson and Decordova who had taken a bike ride during the afternoon of the offence as part of its planning, by contrast, he was always at the back of the gang and had no knowledge of the deceased, and (3) that he had played a lesser role in the murder because he was not the stabber and did not assault the deceased himself. Ms Tafadar's second ground of appeal was that evidence existed which was not put before the judge that this appellant had been attacked on other occasions and coerced into gang membership, and that he was likely to be a modern slave. In oral submissions she has pressed these points and emphasised that Bartley was not an organiser, although she realistically accepted that he was involved in this planned enterprise. She drew the court's attention to his troubled background shown in the conclusive grounds decision consequent on a referral to the National Referral Mechanism in September 2019. By their respondent's notice, the prosecution dispute the first ground to the extent that it is said that Bartley was not part of the planning. On the contrary, the prosecution submit that he, too, had a change of clothes ready, which indicated close involvement in the planning. The prosecution also note that Bartley was standing close to Ferguson with a knife drawn. As to the point about the further evidence, the prosecution contend that Bartley's defence team at trial were well aware of the conclusive grounds decision and that he was or had been found to be a victim of trafficking; further they were aware of that in advance of sentence but made a conscious decision not to deploy that material before the judge. In any event, the conclusive grounds decision related to 2018 and 2019 and had no relevance, even possibly, to the later events of 2022 when these offences were committed. 20 Mr Campbell-Tiech advanced three grounds of appeal: first, that insufficient weight was allowed for youth; secondly, that insufficient weight was allowed for the fact that Benitez took no part in the incident, not even dismounting his bicycle; and thirdly, the judge moved too far above the 12-year starting point in the circumstances of this case. In oral submissions, Mr Campbell-Tiech emphasised those points and, in addition, submitted that there was no intention to kill, that Benitez took the lesser part and that he did not draw a weapon, and that in light of all these circumstances the minimum term imposed in his case was simply too long. By their respondent's notice, the prosecution pointed to the lack of evidence to suggest that Benitez’ developmental age was any lower than his chronological age, and suggested that Benitez took an active part in the attack because he acted as lookout. 21 For Decordova, Ms Sarah Elliott KC and Ms O'Raghallaigh submitted that the sentence was wrong in principle or, alternatively, manifestly excessive by reason of disparity between his sentence and that imposed on Bartley and Benitez. They submitted that his level of involvement was, if anything, less than Bartley and very similar to that of Benitez. He was only just an adult who was close in age to Bartley and Benitez and so should have been given a minimum term which was closer in length to each of theirs. They submitted that the disparity was "more than a fair reflection of the age difference between offenders", a reference to Attorney General's References (Nos. 143 and 144) Brown and Carty [2007] EWCA Crim 1245 at 27. Their oral submissions focussed on the part played by Decordova which were said to be similar to that of Benitez, so that three years disparity between them was excessive. They drew the court's attention to the fact that these four young men were of similar ages and in the same year group at school so that the approach in each of their cases should have been the same or at least very similar. By their respondent's notice, the prosecution pointed to evidence that Decordova was involved in planning this attack and submitted that he was integral to the team and not properly comparable with Benitez for two reasons: first of all, because he was some months older than Benitez and, secondly, because his role was different to that played by Benitez. Benitez was a lookout and overall played a lesser role. Discussion Approach – general points 22 We shall first make some general points. These convictions were on 13 May 2022, which was before the Police, Crime, Sentencing and Courts Act 2022 came into force. The sentences are not, therefore, affected by the amendments to schedule 21 in the 2020 Act , which amendments came into force on 28 June 2022. Three of the appellants were under the age of 18 at the time this offence was committed and it is common ground that in their cases the starting point under schedule 21 was 12 years. For the fourth appellant, Decordova, the starting point under schedule 21 was 25 years. 23 The approach to sentencing young offenders has been considered in a number of cases. The sentencing judge referred to Karolia . More generally, a number of relevant authorities were considered by this court in R v Meanley [2022] EWCA Crim 1065 , see paragraphs 50 to 59 in particular, and R v ZA [2023] EWCA Crim 596 , paragraphs 55 to 62 in particular. Both of those cases post-date the sentence hearing in these appeals. The youth guideline is directly relevant to the youth sentences passed in this case and it has some indirect relevance to Decordova's case also given that he was only just an adult and bearing in mind the approach in these cases that there is no "cliff edge": see R v Clarke 2018 EWCA Crim 185, [2018] 1 C.App.R. (S) 52, paragraph 5. The considerations relevant to this sentencing exercise can be summarised as follows: a. So far as youth offenders are concerned, the purposes of sentencing are different; the primary purpose is not to punish but to rehabilitate, prevent further offending and to have regard to welfare. b. Youth has already been taken into account to a significant degree by the terms of schedule 21 in setting the lower starting point and it is for the sentencing judge to adjust as appropriate, depending on aggravating and mitigating factors, in which exercise the sentencing judge has a wide discretion. c. It is wrong to start the sentencing process at paragraph 6.46 of the youth guideline although that paragraph does provide helpful guidance as to the likely range of sentences for youth offenders by comparison with a mature adult. d. When sentencing someone who is only just over 18 and only separated by a few months in age from other co-defendants, it is necessary to ensure that any disparity in sentence reflects fairly the age difference between the offenders. e. The taking of a knife to the scene is a significant aggravating factor; for an adult, it serves to increase the starting point by 10 years from 15 to 25 years; for a young offender, it remains a very significant aggravating factor. 24 We have considered whether we should have invited pre-sentence reports before considering this appeal, noting the terms of section 33 of the Sentencing Act 2020 . Paragraph 1.14 of the youth guideline requires the court to have full information before it prior to sentence for reasons which are explained in the guideline and in Meanley the Court suggested it was usually advisable to get a pre-sentence report when sentencing youths. But in this case the judge was not, we understand, invited to direct pre-sentence reports for any of the appellants, all of whom were represented by very experienced counsel. No party has invited this court to obtain a pre-sentence report in preparation for these appeals, noting that each of the parties today present is still represented by very experienced counsel. The single judge, Sir Nigel Davis, ordered prison reports on each appellant, which have been received and are informative, in preparation for this appeal but did not direct preparation of pre-sentence reports. We do not consider in this case that it was necessary in all the circumstances to obtain pre-sentence reports either for sentence or on appeal. We take the view that the trial judge was entitled, in the face of the information and submissions before her, to assume that the appellants' chronological ages were broadly matched by their developmental ages and we take the same approach, subject to specific submissions made in the context of any of the individual appeals. Lack of Remorse 25 We think there is merit in the Ferguson’s challenge to the judge's inclusion of lack of remorse in her list of aggravating factors. Lack of remorse is not a statutory aggravating factor and its existence is not, in the usual case, to be treated in and of itself as an aggravating factor. If a defendant demonstrates genuine remorse, then that can be a factor taken into account in that defendant's favour as part of the mitigation. 26 Although the judge treated a lack of remorse as an aggravating factor, and was in error in doing so, the error was not necessarily material. We shall consider each sentence substantively before coming to any conclusions on the appeal. (1) Ferguson 27 We turn then to the individual appeals. Ferguson was 17 years and seven months old at the time of offending. There was no evidence to suggest that he was especially immature for his age, and his minority had already been taken into account in the 12-year starting point. There were here significant aggravating factors, as the judge identified. He was the stabber, using the knife he had brought to the scene for that purpose. He had relevant and serious previous convictions. This was a highly planned and deliberate attack in a public place on an innocent victim, and the killing was subsequently glorified. 28 The only mitigation in his case was his youth, already substantially taken into account in the lower starting point. There was a lack of intention to kill which was important. But that has to be understood in the context of a brutal and forceful attack which in our judgment displayed an intention only just short of an intention to kill. The judge did not state what the minimum term might have been if Ferguson had been a mature adult, but we think the likely sentence on that hypothesis would be around 28 and 29 years. Ferguson was only just short of his majority at the time of offending and so the minimum term in his case might reasonably equate to around 75 to 80 per cent of the adult equivalent. We conclude that the minimum term in his case was well within the permissible range. (2) Bartley 29 Turning to Bartley's case, we deal first with the contention that the judge failed to take account of relevant information, namely the conclusive grounds decision and the fact that this appellant had been a victim of trafficking. It is accepted that this information was available to the defence team in advance of sentence although it was only brought to their attention very close to the time of sentence. But it is clear that a conscious decision was taken by experienced counsel not to put that material before the judge and, in consequence, the judge was unaware of it. We have considered that material for ourselves and we are not persuaded that it should or might have influenced the sentence imposed. The conclusive grounds decision related to a point in time some years earlier and connected Bartley with drug suppliers, but this case did not arise in the context of drug offending, and anyway took place years later. We are, therefore, not persuaded there is merit in Ms Tafadar’s point about past trafficking. 30 As to the weight attached to the mitigation in Bartley's case, the trial judge was well positioned to evaluate the aggravating and the mitigating factors. The starting point in his case was 12 years but there were very strong aggravating factors to elevate the minimum term considerably: Bartley was standing by Ferguson, Bartley was holding his own knife in readiness although he did not use it, Bartley was part of the careful planning of this attack having his change of clothes ready and even if he was not an organiser, he was certainly part of the plan. We consider his culpability to have been close to that of Ferguson's. It is reasonable to think a minimum term of around 26 or 27 years would have been imposed on a mature adult in these circumstances. A minimum term of 19 years in his case lies within the reasonable range and is not manifestly excessive. (3) Benitez 31 Turning to Benitez's case, the judge had well in mind that he did not himself land any blow on the deceased and that he was positioned a little distance away on his bike acting as lookout for the group. The judge was aware of his age and background factors. In our judgment she took these into account fully and fairly. He would, if an adult, have been subject to the 25-year starting point and his sentence would have fallen around that mark, possibly down to 24 years to recognise the lesser role that he played. It is right to note that there was no intention to kill and that overall he did play the least substantive role of all in this plan. Our conclusion is that the minimum term of 17 years in Benitez’ case is not manifestly excessive. (4) Decordova 32 Turning, finally, to Decordova's case, he was an adult at the time of the attack, having just turned 18. The mainstay of his mitigation is his youth relative to that of Bartley and Benitez; they are both 10 or 11 months younger than him. The judge was plainly conscious of the need to ensure that the minimum term imposed on him was appropriate to his age and fairly reflected the difference between offenders. In our judgment, the role he played was central to this joint enterprise murder. He was on his bicycle, at some point reasonably close to Ferguson when the fatal blow was inflicted. He might not have been quite so close as Bartley but we do not accept the submission that his role can be equated with Benitez because he was not acting as lookout, rather he had actively engaged with the victim shortly before the attack. The judge was entitled to conclude that the role he played was more substantive than Benitez. He was an adult by only a very short period of time and his youth was very much a factor to keep in mind. We are confident that the judge did so. Standing back, the minimum term of 20 years in his case was not manifestly excessive. Conclusion 33 This was a difficult sentencing exercise. The judge had the advantage of presiding over the trial. She formed a clear picture of the respective roles played by each of the appellants. We are not persuaded that the minimum term she imposed on any one of the four cases before us was manifestly excessive or wrong in principle. Accordingly, we dismiss these appeals. _________

2023_11_30-5926.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1569/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1569

ce525afe5b42b4565f2daf4fbc911d9105e5a76444ed17018757e4c9145c37f7

[2018] EWCA Crim 1374

EWCA_Crim_1374

crown_court

Neutral Citation Number: [2018] EWCA Crim 1374 Case No: 201800582 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 8 June 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE GOOSE THE RECORDER OF AMERSHAM - HER HONOUR JUDGE CUTTS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTOPHER FLETCHER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Eur

Neutral Citation Number: [2018] EWCA Crim 1374 Case No: 201800582 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 8 June 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE GOOSE THE RECORDER OF AMERSHAM - HER HONOUR JUDGE CUTTS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTOPHER FLETCHER - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - Mr H McKee appeared on behalf of the Appellant J U D G M E N T (Approved) WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. 1. MR JUSTICE GOOSE: On 22 January 2018, the appellant, Christopher Fletcher, who is aged 40, was sentenced in the Crown Court at Stoke-on-Trent to imprisonment for 8 years and 2 months. He had pleaded guilty to drugs offences on two indictments. On the first indictment, T20160268, the appellant pleaded guilty to possessing a controlled drug of class A with intent, crack cocaine, contrary to section 5(3) of the Misuse of Drugs Act 1971, being count 1; and of a similar offence in relation to heroin, being count 2. On the second indictment, T20170452, the appellant pleaded guilty to a further offence of possession of a controlled drug of class A with intent, heroin, also contrary to section 5(3) of the Misuse of Drugs Act 1971. 2. He was sentenced to 4 years' imprisonment on each of the offences with those offences on the first indictment running concurrently with each other but consecutive to the offence on the second indictment. In addition, the appellant was sentenced after his plea to failing to surrender to custody, for which he received a consecutive sentence of 2 months' imprisonment, making 8 years and 2 months in all. 3. The appellant appeals with leave from the single judge upon grounds that the total sentence was manifestly excessive because the appellant was a drug addict whose supply of drugs was in order to fund his own habit and to buy alcohol for himself. Secondly, the nature and extent of the dealing was such that despite the aggravating features, the starting point for sentence should have been at a lower range. Thirdly, insufficient account was given to the principle of totality when making the sentences consecutive. No criticism is made of the consecutive sentence for the failing to surrender to custody offence. 4. The facts of these offences can be started shortly. On 16 March 2016, the appellant was arrested in a public house in Burselm, Stoke-on Trent and found to be in possession of 3.05 grams of crack cocaine with a street value of £320 and 18.7 grams of heroin with a street value of £1,060. He was also in possession of £495 in cash. 5. After his arrest, he was granted bail to attend court for his trial in November 2016 but failed to attend and remained at large for 13 months. 6. On 20 December 2017, the police attended at an address in Bank Street, Rookery to execute a search warrant. There they found the appellant in the rear bedroom. He was in possession of 21 grams of heroin with a street value of £2,100, together with measuring scales and dealer bags. 7. The appellant has 12 previous convictions for 35 offences, which include a conviction for possession of a controlled drug of class A with intent to supply on 24 February 2012 for which he was sentenced to imprisonment for 39 months. 8. In sentencing the appellant, His Honour Judge Glenn, the Honorary Recorder of Stoke-on-Trent, accepted the appellant's basis of plea in relation to the first indictment, namely that he had stolen the drugs and cash from his own drugs supplier, but that he admitted that he was to supply some of the drugs to others. The judge correctly found that such a basis offered little by way the mitigation. The appellant was sentenced on the basis that he was a street dealer and that he had played a significant role in the offences because he was motivated by financial or other advantage. 9. The guideline for supplying or offering to supply a controlled drug of class A under the drugs offences definitive guideline provided a starting point for these offences of 4 years and 6 months' custody, with a sentencing range of 3 years 6 months to 7 years. 10. The judge identified the appellant's previous conviction for a similar offence as being a seriously aggravating factor of the seriousness of these offences. Further, given that the second indictment comprised a further offence while on bail, the judge imposed consecutive sentencing between the two indictments. 11. A discount for pleading guilty was applied of 10 per cent in respect of the first indictment, when the appellant had failed to surrender for trial but pleaded guilty after his further arrest; and 25 per cent in respect of the second indictment. 12. The sentence for each of the two counts on the first indictment was 5 years' imprisonment reduced to four and a half years with a discount for pleading guilty of 10 per cent. On the second indictment, committed when the appellant was not only on bail but also had absconded and avoided his trial, the sentence was 6 years' imprisonment reduced to four and a half years for the plea discount of 25 per cent. Both sentences were then reduced to 4 years' imprisonment each to reflect the totality principle, discounting the consecutive total sentence by one year. 13. On behalf of the appellant, it is argued that the judge should, despite the aggravating features of the offences, have adopted a starting point at a lower range than he did. 14. However, we are satisfied that the judge correctly identified the culpability and the harm of these offences within the guideline so as to reach the appropriate starting point for class A drugs with intent to supply. There were significant aggravating features, which required an upward adjustment from the starting point, and in circumstances in which the appellant was on bail when he committed the offence in the second indictment, consecutive sentencing was justified. 15. It is further argued on behalf of the appellant that there should have been a greater reduction in sentence when applying the totality principle. The judge obviously took into account the principle when expressly reducing the sentences on each indictment by 6 months, which when making those sentences consecutive applied a 1 year discount to the total sentence. Such a discount was entirely within the judicial discretion of the judge when imposing sentence. 16. Having considered the submissions made on behalf of the appellant with care, we are not persuaded that the sentence of 8 years and 2 months' imprisonment for this appellant's offending was manifestly excessive or wrong in principle. Having committed a similar offence in 2012 for which he received a significant prison sentence, this further offending, some of which while being on bail, cannot be criticised. 17. In the circumstances, we dismiss this appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

2018_06_08-4319.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1374/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1374

83b079888709e5d9fceae55819050353095f1af6ac88a4ee0afec589af3170f2

[2011] EWCA Crim 1296

EWCA_Crim_1296

crown_court

Neutral Citation Number: [2011] EWCA Crim 1296 Case No: 2009/03393/C1 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM HIS HONOUR JUDGE KRAMER QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/05/2011 Before : LORD JUSTICE THOMAS MR JUSTICE SWEENEY and MR JUSTICE SPENCER - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Peter Kenneth Smith Appellant - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2011] EWCA Crim 1296 Case No: 2009/03393/C1 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM HIS HONOUR JUDGE KRAMER QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/05/2011 Before : LORD JUSTICE THOMAS MR JUSTICE SWEENEY and MR JUSTICE SPENCER - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Peter Kenneth Smith Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Paul Mann QC and Mr Adrian Reynolds for the Appellant Mr Peter Joyce QC and Mr Steven Coupland for the Respondent Hearing dates: 19 and 20 October and 1 December 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: Introduction 1. On 27 February 2007 Hilda Owen, a 71 year old widow, was murdered in her own home in Skegby. She had been attacked and severe injuries had been inflicted. The pattern of injury indicated that she had remained alive for somewhere between 15 and 24 hours after the attack. She was left to die. The appellant, her next door neighbour, reported to the police the finding of her body on 1 March 2007. 2. He was at first treated as a witness, but on 9 March 2007 he was arrested but released on bail. Between March 2007 and December 2007, 17 other people were arrested and interviewed but none was charged. On 3 December 2007 the appellant was re-arrested and interviewed. He was subsequently charged. 3. There was circumstantial evidence against the appellant (to which we shall refer at paragraphs 69 to 87 below), including the making of a “will” in his favour, his involvement in her affairs, his financial difficulties and his opportunity to kill her. Apart from the pathology evidence (which is not in dispute) there were three areas of forensic evidence. The first related to the scenes of crime, the second to footwear and the third to fingerprint evidence. 4. The appellant was tried between 18 November 2008 and 12 December 2008 before HH Judge Kramer QC at the Crown Court at Nottingham. We shall set out in a little more detail the course the trial took but the trial resulted in the conviction of the appellant for murder. He was sentenced to life imprisonment with a minimum term of 30 years. 5. He appeals by leave of the single judge on one ground – the difficulties faced by the defence at trial when a decision was made not to call its fingerprint expert and the fresh fingerprint evidence now available. 6. It was accepted by the Crown that there was fresh evidence in relation to the fingerprints; we will consider that evidence first and then whether, in the light of the test in Pendleton [2002] 1 WLR 72 , it affects the safety of the conviction. We will therefore first set out the evidence in relation to fingerprints before turning to consider the safety of the conviction. I THE FINGERPRINT EVIDENCE 7. Before explaining how the fingerprint evidence was obtained, the decision made at the trial not to call the expert, the evidence given at trial and the evidence before us in relation to the fingerprint, it is necessary to set out very briefly the nature of fingerprint evidence and the training of fingerprint examiners in England and Wales. (1) The nature of fingerprint evidence (a) The evolution of the evidence 8. The history of fingerprint standards and evidence was set out by Rose LJ in R v Buckley (Robert John) (1999) 163 JP 561 . He pointed to the accepted position that fingerprints varied from person to person and that such patterns were unique and unchanging throughout life. There were originally no standards, but it was accepted that once 12 similar ridge characteristics were identified, the match was proved beyond all doubt. In 1924, the standard was altered by the Metropolitan Police to require 16 similar characteristics, but not all police forces accepted that. In 1953, a national standard of 16 similar characteristics was adopted; the objective was to set a standard that was so high that no one would seek to challenge the evidence. There was discussion in the ensuing years as to the number that were required; in 1983 there was a conference at which it was agreed that a fingerprint identification was certain with less than 16 points of similarity; there would, however, be rare occasions on which there would be a print of crucial importance that fell below that standard, where only experts of long experience and high standing should give evidence. As a result of that conference, the Home Office and the Association of Chief Police Officers (ACPO) commissioned a study by Dr Ian Evett and Dr Williams into standards. They concluded that there was no scientific, logical or statistical basis for the retention of a numerical standard. As a result, further work was undertaken by ACPO and the Fingerprint Bureau within each police force. It recommended a move to a non numerical standard. 9. That non numerical standard was adopted in 2001 by ACPO. This requires the print to be identified by a fingerprint officer (who may or may not be a fingerprint expert) and then to be checked by two others who are qualified fingerprint experts. The standard to be applied is to examine all the available detail in relation to the print such as ridge flow and ridge characteristics to see if the print can be clearly identified with a person’s fingerprint. 10. The current procedures are set out in a manual issued in 2006 by ACPO and the National Fingerprint Board which had been established in 2002. This was issued to the Fingerprint Bureau of each police force which within each police area is responsible for the examination of fingerprints. It is for each police force to establish its own quality management system. Work is currently being undertaken to develop quality standards by the Fingerprint Quality Standards Specialist Group established by the Forensic Science Regulator. (b) The training of fingerprint examiners 11. We were provided with a statement from Mr Michael Thompson, Head of National Fingerprint Training for the National Policing Improvement Agency which very clearly and helpfully set out the requirements for training and recognition by police forces as a fingerprint expert. i) Prior to 1992, fingerprint experts were trained in-house by police forces; there was no standard training. The Metropolitan Police provided an advanced course which was undertaken after a minimum of 5 years in-house training. On completion of the advanced course the expert would be placed on a Register maintained by the Home Office. In 1990, a national training centre was established and in 1992 national fingerprint training was made available. From that time until 2007, the training programme provided for a Foundation Course, an Intermediate Course and an Advanced Course. On completion of the courses and with a letter of confirmation from a Chief Constable, the expert was entered onto the Home Office Register of Police and Government Department Fingerprint Experts. ii) Since 2007, ACPO has approved a series of courses and assessments which form the National Fingerprint Learning Programme run by the National Police Improvement Agency; on satisfactory completion and a letter of confirmation from a Chief Constable, the expert is entered onto the Home Office register. These courses take several years and very high standards are expected. iii) Police Forces take the view that no one can be a fingerprint expert in the United Kingdom unless they have qualified through one of the above methods. Their view is supported by the position that there is no other readily available way of qualifying in the United Kingdom. Although a person who does not work for police will be accepted onto a Foundation Course, no person can continue to the higher levels unless he is an employee of a police force; experience has to be gained between the courses at a police fingerprint bureau. The reason for the stance taken is that the NPIA and ACPO take the view that unless a person works within a police fingerprint bureau, that person is unlikely to gain sufficient experience in the analysis of fingerprints; a person outside a bureau would not have sufficient opportunities to gain enough experience. If a person qualifies overseas, ACPO has agreed that that person will not be accepted for employment in a UK fingerprint bureau unless the person sits the Advanced Examination. 12. The training methods we have described are rigorous; examinations have to be taken and portfolios of work are assessed. (2) The identification by the Nottinghamshire Fingerprint Bureau and the steps taken prior to the trial (a) The initial investigation by Mr Gore in March 2007 13. On 2 March 2007, about 200 fingerprints were recovered from the deceased’s home by Mr Alan Gore, a fingerprint officer employed by the Nottinghamshire Police, who had more than 21 years experience of fingerprints. He sent them for initial screening. He had also had a finger and palm print of the appellant dated 9 March 2007; these were taken because of the number of fingerprints at the premises. On 20 March 2007, Mr Gore examined a door handle from the deceased’s house. It was a lever type handle; on the rear surface of the handle facing the door there was an area of a red blood-like substance. He could see that skin ridges appeared. The area was then examined by Mr Gore between 29 March 2007 and 3 April 2007. His assistant had taken numerous photographs, the first photographs being taken on 29 March 2007 under fluorescent light, others being taken after each of three acid yellow washes, a further set being taken after acid violet washes and a final set of photographs being taken after acid black washes. 14. Mr Gore examined the handle visually and the photographs in some detail. He also examined the area using a Nikon stereo microscope at 8x magnification. Despite the photographs and the examination under the microscope he concluded that there was insufficient detail to be able to make a meaningful comparison. His conclusion was recorded in a single note on a one page document headed Fingerprint Bureau Internal Actions where he noted that there was insufficient detail. A report was also sent to the investigating team but it added little. (b) The re-examination in February 2008 15. Between about 11 and 18 February 2008 (and thus after the appellant had been charged) Mr Gore re-examined the photographs; he did so because he anticipated being asked about the print he had not been able to identify. By about this time the Nottinghamshire Police had acquired a new scanning and printing machine which enabled him to run the print off and compare print to print more easily. Although he was working on other cases, he spent much of the week looking at the prints. By the end of that period, he concluded that the ridge flow and 12 ridge characteristics could be identified with the fingerprint from the appellant’s left forefinger. 16. The sole record of the week’s work is contained in the Fingerprint Bureau Internal Action Sheet which noted at 6: “ident JM74 Peter Knight Smith cro 18602481C (suspect DCI O’Shea)”. JM74 was the print on the handle. 17. In accordance with ACPO guidelines, that examination was verified by two others, Mr Robert McShane, Manager of the Nottinghamshire Police’s Fingerprint Bureau and Mrs Patricia Wardle, a fingerprint officer employed by the same bureau on 15 and 18 February 2008. The note made by Mr McShane and Mrs Wardle on the Action Sheet was the same: “Ident at 6 verified”. There were no notes or other record of their work. 18. In his evidence to us Mr Gore explained why he had re-examined the print on the door against the print of the appellant. He told us that quite often during a trial he would be asked at short notice for assistance with the prints found at the scene and, to save having to do the work in a hurry at the trial, he decided to do the work ahead of time. 19. On 19 February 2008 he prepared a three page statement. That statement did not contain any diagram setting out the 12 characteristics he had identified. It merely stated that he had found sufficient ridge detail in agreement and none in disagreement to conclude that the print was that of the appellant. He concluded: “In forming my opinion I have considered the amount of detail, its relative position and sequence and general quality. I have no doubt that the area of friction ridge detail indicated in the photograph was made by [the appellant].” 20. He had no working notes. His evidence was that he did a continuous analysis and his working notes were in effect the photographs. In a statement made prior to the trial, Mr Gore explained the absence of a chart: “Such charts have never been produced for analysis or verification purposes. This is bad practice and would have a detrimental effect on the independence of the analysis, comparison and evaluation of the mark.” Mr Gore explained to us that if a chart had been produced by him, then the two other experts who verified his conclusion would not be able to reach their own independent conclusion. 21. He made two further statements in March and May 2008 to which it is not necessary to refer and a statement on 24 June 2008 where he said in respect of the work in the Spring of 2007: “I came to the conclusion that there was not enough detail for me to proceed.” That statement explained in a little more detail the acquisition of the new scanning and printing machine. (c) The experts retained on behalf of the appellant 22. After the appellant had been charged on 5 December 2007, his solicitor, Mr Davies of Bilton Hammond, decided that it was necessary to deal with the various pieces of forensic evidence, including footwear and fingerprint evidence. On 27 February 2008 he wrote to Keith Borer Consultants asking them whether they could appoint experts in various forensic disciplines, including fingerprint analysis. At that stage it was, of course, not known that there was the fingerprint evidence in relation to the door but there was fingerprint evidence in relation to another issue. 23. The solicitor was informed by Keith Borer Consultants that they could assist and suggested Ms Catherine Tweedy be appointed as the fingerprint expert for the appellant. She was provided with documentation and visited the Nottinghamshire Fingerprint Bureau. 24. Ms Tweedy, according to the qualifications and experience set out in the report she provided, said she had been employed by Keith Borer as a forensic scientist since 1995 and had specialised in the study of fingerprints. She had a BSc in Biological Sciences and various other qualifications. She stated she was instructed in approximately 55-65 criminal cases each year. She added: “I have received fingerprint training at the Police National Training Centre. I have received training in Modern Fingerprint Technology and have successfully completed the Advanced Latent Fingerprint Course with Metro Dade Police, Florida, USA. I am an active member of the International Association of Identification. I have extensively studied the persistence, detection and recovery of fingerprints from exhibits and scenes of crime, chemical enhancement techniques, visualisation of latent marks and the identification of individuals through transfer evidence.” A report was produced by her dated 19 September 2008 which was disclosed to the Crown. In it she complained that Mr Gore did not provide full and complete disclosure of any part of the fingerprint evidence and concluded that the print on the door did not possess 12 ridge characteristics for matching purposes. She ended up by saying that if Mr Gore was to provide a chart or marked up enlargement then she would examine it and produce similar images detailing her findings. Another employee of Keith Borer, Mr Simon Bunter, who had worked for the North Yorkshire Police’s Fingerprint Bureau for 7½ years, had confirmed Ms Tweedy’s view. However, as he was the confirming expert, he had not been to see the materials held by the Nottinghamshire Police Fingerprint Bureau. His work had not been validated by another expert, as his role was to confirm Ms Tweedy’s opinion. 25. In statements made on 8, 10 and 15 October 2008 Mr Gore responded. In a statement dated 4 November 2008, following a request from the defence, he produced a comparison chart; he did so by marking the 12 characteristics on a photograph of the print on the door handle and on a photograph of the print taken from the appellant. It was the first time he had done this in his 17 yeas of being a fingerprint expert giving evidence in court. (3) The events at the trial 26. The trial began on Monday, 17 November 2008. Mr Gore began his evidence on Wednesday 26 November 2008. As we explain at paragraph 35, his cross-examination had to be adjourned so that he could provide clearer photographs to the jury. He was recalled on 1 December 2008 and concluded his evidence. Mr McShane and Mrs Wardle gave evidence supporting his conclusion. 27. It was intended that Ms Tweedy give evidence immediately thereafter; illness prevented her. Mr Bunter gave evidence to the effect that the print was of such poor quality that it could not be safely attributed to the appellant. Ms Tweedy was asked to attend to give evidence immediately after the appellant had given his evidence. 28. An issue then arose as to whether she was qualified. On 1 December 2008 the CPS learnt that the qualifications of Ms Tweedy had been questioned in another CPS area. In September 2008, the CPS had been informed by Mr McShane that Ms Tweedy had applied to be registered as an Accredited Fingerprint Officer with the Council for the Registration of Forensic Practitioners, a body which existed at that time, but which has subsequently closed. After service of her report, the police were asked to investigate her qualifications; it proved difficult to obtain details. On 1 December 2008 after receipt of the information from the other CPS area, the CPS asked Keith Borer Consultants over the phone about her qualifications; the CPS were told by Keith Borer Consultants that she was very experienced and subsequently the CPS were sent copies of her certificates. 29. Shortly before Ms Tweedy was to go into the witness box on 8 December 2008, counsel for the Crown told counsel for the appellant that Ms Tweedy was not qualified as she claimed; other CPS areas had been critical of her; if she was called, she would be cross-examined about her shortcomings and about fundamental errors in her report. 30. The appellant’s legal team asked for time to investigate; the team were told by Keith Borer Consultants that there were no grounds for doubting her ability; the challenge was only because her training was American and not UK based; Keith Borer Consultants confirmed that her level of `competence had been challenged in other cases. 31. The decision was made not to call Ms Tweedy and to rely on Mr Bunter’s evidence. It was recognised that he had significantly less experience than Mr Gore, Mr McShane and Mrs Wardle and his opinion was not supported by anyone else. The jury had been told of the intention to call her; when the decision was made not to call her, the jury were simply told that she was no longer being called. No reason was given. 32. In his summing up to the jury the judge emphasised that the jury should assess the evidence and not try to be amateur experts. He directed them that if they found that the evidence of Mr Gore, supported by Mr McShane and Mrs Wardle, accurate and reliable, then they were entitled to come to the conclusion that the fingerprint was that of the appellant; if in view of the evidence of Mr Bunter they concluded that the evidence called by the Crown was not or might not be reliable, then they should discard it and ignore it (e) The further expert opinion obtained on behalf of the appellant 33. After the appellant’s conviction, further expert evidence on fingerprints was obtained: i) Mr Peter Swann was instructed on 2 February 2009 to consider the fingerprint evidence. He had qualified as a fingerprint officer in the traditional way we describe at paragraph i) and had been in charge of the Bureau at Wakefield; he had been an adviser to the Home Office. He had retired in 1987, before the change to the identification parameters made in 2001 as we described at paragraph 9. He had over 50 years experience, but had received no on-going training, save for attending lectures and conferences on fingerprinting. He visited the Nottinghamshire Bureau and provided a report dated 7 March 2009. ii) Mr Ford had worked as a fingerprint officer from 1965 in a large police fingerprint bureau; he retired early in 1998. He then practised as an independent fingerprint expert. He had had no further training other than checking prints at other bureaux. (4) The evidence given at the trial 34. Mr Gore’s evidence at the trial was that, although initially he thought the quality of the print was so poor that it was no use, he was able to see when he re-examined it in late April or early May 2007 that it was the print of the middle section of a left forefinger with blood on it. It was consistent with a left hand or forefinger with blood on it over the back of the door handle and opening the door in order to exit 35. When he re-examined it again in 2008, in the circumstances we have described at paragraph 15, he examined the ridge characteristics, ridge endings and bifurcations and details including the pores. He found 12 points where the characteristics were similar on the middle phalange of the left forefinger and no points of dissimilarity. He had no doubt about it. He did not identify these points to the jury in his examination in chief, taking the view that he would not expect them to appreciate what the similarities meant, given the poor quality of the print. It was only in his cross-examination that he was asked to identify the 12 similarities. As the photograph in the bundle prepared (to which we referred at paragraph 25) was not sufficiently clear, his evidence had to be adjourned at the outset of the cross-examination so that a better bundle could be produced. When the cross-examination resumed, he was taken through each point in the new bundle; that bundle numbered each of the points of comparison differently to the numbering sequence in the first bundle. His cross examination was detailed, putting to Mr Gore specific criticisms of the characteristics where he said there were similarities. Mr Gore explained that he considered that two of the points of similarity repeated themselves, as there had been a double touch – a topic` to which we return at paragraphs 47 and following. 36. Mr McShane and Mrs Wardle gave evidence that they had independently examined afresh the print and the appellant’s fingerprint form and were sure that the print had been made by the appellant. 37. Mr Bunter’s evidence was that he had never seen a fingerprint officer identify a print of such poor quality; he agreed with Mr Gore’s original view. He considered there were only two clear ridge characteristics in the area on which Mr Gore had relied. He was then taken in his examination in chief through the detail of each of the points of comparison relied on by Mr Gore. In his cross-examination the fact he had not made the time to visit the Nottinghamshire Police Fingerprint Bureau was emphasised, as was the fact that his opinion has not been confirmed by another expert. (5) The evidence given to this court 38. We heard evidence from Mr Gore and Miss Wardle, Mr Swann and Mr Ford; Mr Gore and Mr Swann gave evidence at the first and second hearings before us; Mrs Wardle and Mr Ford gave evidence only at the second hearing. 39. When Mr Swann and Mr Ford produced their reports, they produced their own markings on the photographs with their own numbering system, using for the most part the numbers 1-10. As Mr Gore had used two different sets of numbers at the trial and there were before us two additional sets of numbers, all using the same sequence of numbers; this did not make the hearing of the evidence as clear as it should have been. 40. At the conclusion of the evidence there were three areas of conflict in the evidence: (a) ridges and furrows - what lines were the ridges and what lines were the furrows on the print or prints left on the door handle; (b) double touch - whether there had been one touch leaving a print or two touches leaving two prints; (c) clarity of the left side: whether the area to the far left was sufficiently clear so that reliance could be placed on it. (a) Ridges and furrows 41. It became apparent during the course of the first hearing before us that there was a fundamental dispute between Mr Gore and Mr Swann as to what were shown on the photographs as ridges and furrows; Mr Swann’s evidence was that what Mr Gore said were ridges (red lines) were in fact furrows and what Mr Gore said were furrows (dark lines) were ridges. In the course of Mr Swann’s cross examination, Mr Swann made clear that the dark colour were the ridges and the red lines the furrows, as the dark colour had sweat pores on them. This difference had not emerged before. 42. We attempted to resolve this by asking the experts to examine the handle itself. However, after the conclusion of the first hearing, further work was done to try and resolve the issue that had arisen as to ridges and furrows. In the second hearing we were very grateful to have the relevant images on screens as well as in hard copy, as this made it much easier to follow the comparisons the experts sought to draw. 43. At the second hearing Mr Gore produced images of the appellant’s prints which had been taken by “Livescan” – a method of taking prints by scanning each person who is arrested; such prints were stored on the National Automated Finger Print Identification System (NAFIS). We were told that those who operate NAFIS do not permit digital images to be downloaded onto a disk and provided to the court to view on its screens; instead we were provided with a disk of photographs of the digital image which were shown to us on our screens and the photographs themselves. 44. Mr Gore’s evidence was that the new images of the appellant’s prints showed the incipient detail in the furrows; they were not pores on a ridge; he had also compared the Livescan images to the inked impressions where the ink would be on the ridges and they corresponded. Mr Swann agreed with the interpretation of these images of the appellant’s print. 45. However they remained in disagreement as to which were furrows and which were ridges on the image of the print on the door handle. i) Mr Gore’s evidence to us on the second hearing was that there were pore holes that could be seen on the ridge; at the first hearing before us, it was Mr Gore’s evidence that the pores on the ridges could not be seen because blood was where the pore holes were. He told us at the second hearing that had been a mistake and pore marks existed. ii) Mrs Wardle agreed with Mr Gore, but was not pressed to explain why. iii) Mr Ford agreed with Mr Swann; in his opinion, the dark black lines were the ridges as he could see the pores in them; he had thought that Mr Gore agreed with him. 46. It was suggested to Mr Gore that the difference did not matter, but Mr Gore regarded it as crucial, as each was identifying something different. (ii) The double touch 47. Mr Gore’s evidence to us was that in his examination of the print on the door handle in February 2008 he had identified the fact that the person who left the print had touched the handle twice – a double touch. There was no reference to the double touch in any of Mr Gore’s statements; he told us he did not tell the police. He reported it as one print, as he considered that the second touch was not sufficiently clear to provide any identification. There was nothing on the photograph on which the 12 points of similarity were originally marked to identify for the jury that there had been a double touch. He told us he did not do so because neither Ms Tweedy nor Mr Bunter had suggested that the ridges shown were continuous. 48. In the second bundle he produced for the jury, he drew on the principal photograph a line and two duplicate numbers. He provided no explanation for this in writing; when his cross-examination resumed, he then explained for the first time his double touch case. He explained that there were two points with the same number (his duplicate 2 and 3) and that there were two duplicates; the line was the division between the two touches. The evidence he gave was not challenged in the way it was challenged before us. 49. Although the question of a double touch had no significance in the trial, it became central to Mr Gore’s rebuttal of Mr Swann’s evidence in the hearing before us. Mrs Wardle told us that she had not considered the double touch much at the time she made her identification, but gave evidence supporting Mr Gore’s view. 50. Mr Swann’s evidence was that: i) There were four points of similarity (A, B, C, D) which were ridge characteristics; Mr Gore was in agreement with these as ridge characteristics. Mr Ford was adamant in saying that the characteristics were not the same. ii) He identified six points of dissimilarity (1, 2, 3, 4, 5 ) which were on the print on the handle and were not on the appellant’s print and a further point (6) which was on the appellant’s print but not on the door handle; 51. Mr Gore’s evidence to us was: i) That 2 and 5 (using Swann’s numbers) were ridge characteristics duplicates of Swann C and D which had resulted from a double touch; if there had been a single touch, Mr Gore accepted there would be inconsistencies which would point to the print not being that of the appellant. However he explained that his duplicate 2 to which we have referred at paragraph 48 was not the same as Swann 2 but Swann B. ii) Mr Gore accepted that Swann 1 was on a ridge line, but was not a ridge ending; it was a double touch. If there had not been a double touch, it would be an inconsistency. He also accepted that the characteristic on the appellant’s print identified as Swann 6 was not present on the print on the door handle. iii) He also identified for us on the second occasion he gave evidence another duplicate which he had not marked on the second bundle he had produced for the jury. iv) Mr Gore told us that his point 4 in his second jury bundle was the same as Swann D and therefore part of the second touch; he had not marked 4 (as shown in the second jury bundle) in the first jury bundle; he had marked a 5 in his first jury bundle to the right of the position where 4 in his second jury bundle was, but that could not have been a duplicate. He said he had, in marking 5 in the first jury bundle, made a mistake which he could not explain. v) It was clear that the line drawn on the second jury bundle to show the division in the blood print between the two touches spoken of by Mr Gore was different to the line that had been drawn in the separate bundle produced for this court. Mr Gore had not drawn any such line when he made his identification; nor had the other two examiners drawn any line. 52. Neither Mr Gore, nor Mr McShane nor Mrs Wardle had said anything at the trial about any inconsistencies being explained by a double touch; Mr Gore told us that was because he was of the view that there was a double touch and therefore no inconsistency. 53. Mr Gore advanced five reasons why he contended that there was a double touch; i) There was a replication of characteristics between what he said was the print on the left and the print on the right; he was supported in this by Ms Wardle. Mr Ford did not agree the points were the same ii) On comparison between the thickness of the ridges on the right and left of the image of the door handle, the thicker ridges suggested a heavier deposit on one touch and the thinner, lighter deposit on the other touch. Mr Swann and Mr Ford disagreed with this. iii) The size of the print was much larger than the appellant’s finger. There was no dispute that it was larger. However it was submitted on behalf of the appellant that this could not amount to an independent reason, as it assumed that the print was that of the appellant and not another person with a wider finger which might have left a single print. iv) There was a break in the flow of the ridges. Mr Gore accepted that there were a number of ridges that appeared to flow through either side of the line, but said that this was quite common as, if a finger was put side by side twice, this was likely to appear. The evidence of Mr Swann and Mr Ford was, however, that the ridges flowed through; they could see no natural break. Mr Ford was clear in his evidence that if there had been two touches he would have expected to see the ridges jumping and not a straight line. v) There were indications of two prints of the distal phalange, indicating two touches. Mr Gore’s evidence to us at the first hearing was that there was a print of the distal phalange on the second touch. At the second hearing he explained that he could see a faint print as a result of the first touch. Mr Swann had in his evidence made clear there was only one print of the distal phalange. In addition Mr Gore accepted that there was no smudging at what he suggested was the border between the two but smudging would occur purely by chance. (c) Clarity of the left side of the print 54. Mr Swann identified 10 points on the left side of the print which he said could not be seen on the appellant’s print. 55. Mr Gore and Mrs Wardle did not consider that the left side of the print or prints was sufficiently clear to be able to make a proper comparison of ridge characteristics; there was too much disturbance. Mr Gore thought that they were spurious and the area should not be relied on. Mrs Wardle explained that she had made her identification by reference to characteristics she could see in the area that was clearest; as there were enough similar characteristics in that area she could ignore the area to the left. 56. It is clear from the summary of the evidence we heard that there was a clear conflict between the experts. We will consider the conclusion to be drawn from this in the context of our consideration of the safety of the conviction. Before doing so, it is necessary to consider the position of Ms Tweedy. (6) Ms Tweedy’s qualification 57. It was submitted to us on behalf of the appellant that the decision not to call Ms Tweedy was justified because she was significantly under qualified and the Crown would have been justified in challenging her professional ability; this would have adversely affected the weight attached to her evidence. There was a risk that this would have undermined the opinion of Mr Bunter. The position taken was supported by Mr Thompson’s evidence that the course taken by Ms Tweedy at Metro Dade Police Florida was not recognised in the United Kingdom as a fingerprint qualification; this was the course that had been undertaken, as we have set out at paragraph 24 by Ms Tweedy. 58. We directed that Keith Borer Consultants be informed of the submissions that had been made about Ms Tweedy’s lack of qualification to give expert evidence. We received extensive submissions from Keith Borer Consultants to the effect that Ms Tweedy was qualified; we were informed that Ms Tweedy’s registration with the Council for the Registration of Forensic Practitioners was in progress when the Register and the Council had closed. Details of the training courses she had attended and her research on fingerprints were set out. She had prepared 700 reports on fingerprint evidence. 59. Keith Borer Consultants also set out the quality control procedures they had in place. They explained that their approach to fingerprint evidence was different to the approach of the police Fingerprint Bureaux and followed the practice applied in other areas of forensic science. 60. We fully understand why the decision was taken not to call Ms Tweedy and the severe disadvantage that caused to the defence of the appellant. In the light of the acceptance by the Crown that this court should in all the circumstances receive the fresh evidence, it is not necessary for us to express a view on whether Ms Tweedy was qualified to give expert evidence. However, the issue relating to her qualification to give expert evidence highlights one of the concerns we have in relation to the way fingerprint evidence was obtained and considered at the appellant’s trial (7) General issues relating to fingerprint evidence 61. In the light of the issue in relation to Ms Tweedy’s qualifications and the way in which the evidence was adduced at trial, we consider it important that we should identify some of the features which have become apparent to us. None have been material to the decision we have in fact reached in this case as to the safety of the conviction, but as they are important to the way in which fingerprint evidence is adduced where the print is not clear; we set them out : i) Most forensic science services have for some time been provided by organisations wholly independent of police forces. There are also a number of private providers of forensic science services. In contradistinction, fingerprint experts are organised in Fingerprint Bureaux which fall within the organisational structure of each police force. This may be a distinction that is justified; it may be possible for independence to be assured by strict standards of control on quality and by accountability. ii) There is no opportunity for a person outside a police Fingerprint Bureau to become fully qualified as a fingerprint expert by training in England and Wales or for having that person’s competence recognised by the police forces. iii) Police forces do not recognise the qualifications or competence of those who have obtained these overseas. It is for a judge to decide whether a person is a competent expert, not the police. Because of the course the trial took, the judge did not have to rule on whether Ms Tweedy, who obtained qualifications overseas, was a competent expert. iv) It is essential for the proper administration of justice that there are independent persons expert in fingerprint examination; almost all who do this are retired from police Fingerprint Bureaux. The position is in marked contrast to other forensic science disciplines. There may be good reason for this distinction; for example the fingerprint bureau of other forces may be able to provide expert evidence for the defence. v) No competent forensic scientist in other areas of forensic science these days would conduct an examination without keeping detailed notes of his examination and the reasons for his conclusions. That universal practice of other forensic scientists was not followed by the Nottinghamshire Fingerprint Bureau. There may be reasons for this, but they were not explained to us. vi) As neither the original examiner nor those who confirmed his examination made any notes of their reasons and did not identify the points of comparison contemporaneously on a chart, it was not possible to see whether their reasoning was the same. We were told that this was not done because those who made the subsequent identification should make that identification without knowing the views of those who had previously examined the print. Although we accept that identification by two other persons who do not know the conclusions of the original examiner or the other examiner form an important safeguard, we do not understand that reasoning. There would be nothing to prevent the earlier examiners sealing their conclusions until the completion of all the examinations. We do not know whether there is any other justification for examiners not making detailed contemporaneous notes that can be the subject of transparent examination in court where the identification of the mark is in issue. vii) The quality of the reports provided by the Nottinghamshire Fingerprint Bureau for the trial reflected standards that existed in other areas of forensic science some years ago and not the vastly improved standards expected in contemporary forensic science. viii) The presentation of the evidence to the jury made no attempt to use modern methods of presentation. The presentation to this court was similar; a large amount of time was wasted because of this. It was incomprehensible to us why digital images were not provided to the jury; the refusal of NAFIS (to which we have referred in paragraph 43) to permit a digital image to be supplied to the court was a further example of the lack of a contemporary approach to the presentation of evidence. The presentation to the jury must be done in such a way that enables the jury to determine the disputed issues. This is one of the very few cases where fingerprint evidence has been challenged at a trial since 1999 and, as far as we are aware, the first since then to come before this court on an appeal where this court has had to hear fresh evidence. It is not unsurprising that the points we have raised identify practices which differ so markedly in England and Wales from modern forensic science practice in other areas of forensic science. 62. There is plainly a need for the points that have arisen in this case to be the subject of wider examination. We have been told that an enquiry by the Rt Hon Sir Anthony Campbell into the case of HM Advocate v McKie known as the Scottish Fingerprint Enquiry has heard extensive evidence in relation to fingerprint evidence in Scotland. It is not for us to comment more than we have done at paragraph 61 in relation to the practices that have come to our attention in this appeal. In our view, however, there is a real need for the ACPO, the Forensic Science Regulator and the recently established Fingerprint Quality Standards Specialist Group to examine as expeditiously as possible the issues we have identified, to assess the position and to ensure that there are common quality standards enforced through a robust and accountable system. II THE SAFETY OF THE CONVICTION (1) The fresh evidence (a) The Pendleton test 63. Mr Joyce QC on behalf of the Crown, in accordance with the highest standards of counsel advancing a prosecution, accepted that in the circumstances the conditions of s.23 of the Criminal Appeal Act 1968 which entitled us to hear the fresh evidence were met. 64. As there could be no dispute that the evidence given by Mr Swann and Mr Ford was credible, the issue for us was whether that evidence was such as might reasonably have affected the decision of the jury to convict; if we concluded that it was, then the conviction is unsafe: see R v Pendleton [2002] 1 WLR 72 at paragraph 19. (b) The evidence given by the Crown 65. We accept that Mr Gore, Mr McShane and Mrs Wardle had significant experience in the examination of fingerprints and were well trained in the methods of analysis introduced in 2001. They utilised modern equipment. 66. Substantial criticism of Mr Gore was advanced on behalf of the appellant. In the light of the observations we have made as to the practice of the Nottinghamshire Fingerprint Bureau, it would not be fair to criticise Mr Gore. However, the way in which the evidence was prepared by the Bureau for the trial and the materials presented to the jury are factors we must take into account in determining whether the conviction was safe. 67. We have set out above a summary of the evidence we heard on the main issues between the respective experts. The importance of the evidence was that it was undoubtedly a fingerprint made in the deceased’s wet blood, and therefore likely to be the fingerprint of the killer. In our judgment it is plain that on that evidence there was a real and substantial dispute as to whether the print on the door handle was that of the appellant. If the jury had heard that evidence, then they would have had to determine whether, in the light of the evidence given by Mr Gore, Ms Wardle, Mr Swann and Mr Ford, the print on the door handle was that of the appellant. They could well have accepted the analysis of Mr Swann and Mr Ford that it was not the print of the appellant. It would have been entirely reasonable for them to do so. 68. However, the Crown contended that even if that were the case, the conviction was nonetheless safe because of the other evidence before the jury. (2) The evidence in relation to the killing (a) Time of death 69. The deceased was last seen alive at 11.30 am on 27 February 2007. It was clear that she was attacked sometime later that day – probably between 11 p.m and 8 a.m. the following morning, but it could have been about 6 hours before or later. (b) Entry into the house 70. The deceased’s attacker entered through her back door. It was unlocked at the time. She was in effect housebound and reluctant to let anyone into her house she did not know; she normally only left the door unlocked if she was expecting someone she knew. 71. The appellant’s back door faced that of the deceased across a small courtyard with a clear view from the appellant’s kitchen to the back door of the deceased’s back door. (c) The attack 72. She had been attacked from behind whilst seated on a chair in the rear living room with her back towards the back door. She received 48 injuries or groups of injuries; 29 of these were to her face and head, some causing fractures of the skull. The injuries were consistent with the use of a claw hammer and a screwdriver; a screwdriver with her blood on it was found in her bedroom. 73. The time of death was uncertain – it was probable she had remained alive for 15-24 hours after the attack we have described. She was either strangled then (and had survived) or strangled shortly before her death. 74. The house had been searched, but nothing had been taken; cash and jewellery to the value of £17,085 were left untouched. (d) Footmarks 75. Two sets of footmarks were recovered from the house. One in the deceased’s blood showed movement around the body, in the front living room and in the front bedroom. The other was made in dust in the rear living room. None was found outside, indicating that footwear was removed inside the house. The size of the footwear that had made the mark was between 8 and 10. (3) Circumstantial evidence in relation to the appellant (a) The appellant’s finances 76. The Crown’s case was that the appellant was in severe financial difficulties; he had total debts of £104,558.56 at about the time of the deceased’s death. As his relationship with his partner had ended, the mortgage had been transferred into his name and he had to make a payment of £6,340 to his former partner. He had told others of his dire financial position; a fellow employee had given evidence that the appellant had on one occasion broken down and told her that he was worried he might be homeless and did not know where he was going to live. 77. Financial difficulties were denied by the appellant on the basis that his current account was in credit, he had not defaulted, his credit rating was satisfactory and his income exceeded his expenditure. (b) His assistance to the deceased and her “will” 78. The appellant had been very attentive to the deceased; he made no secret of his hope that she would leave her house to him. The appellant had also applied for a Community Care Grant and Attendance Allowance for her; the Crown alleged there were dishonest statements in the applications and the appellant benefitted from them. He involved himself in her financial affairs. It was common ground that the deceased had expressed to others gratitude for what the appellant had done for her. 79. He made arrangements for her house to be transferred into her name; it was the Crown’s case that he had told his new partner that he had a plan that would solve his financial problems – getting the deceased’s house. 80. On two occasions, the last of which was on 8 February 2007, the deceased was asked about making a will, but was adamant she did not wish to make one. On 19 February 2007, the appellant purchased a will kit from WH Smith. He drafted a will for the deceased under which he was the sole beneficiary. The will was backdated. It was signed by the deceased, but the signatories as witnesses had not witnessed her sign the will. They had done so on 25 February 2007. (c) The appellant’s explanations of his whereabouts on 27 February-1 March 2007 81. The appellant made regular visits to the deceased. However, he said he had not visited her between 6.45 p.m. on 27 February and 9.42 a.m. on 1 March 2007. An analysis of his computer, phone records and CCTV at work showed that he had had the opportunity. He said he had not noticed the full milk bottles left on 28 February or 1 March 2007. 82. In interviews on 1 March 2007 he said he had visited a friend on the night that the deceased was attacked. The friend confirmed that account. On 9 March he said that he had gone cruising for sex in nearby woodlands after leaving the friend; when re-interviewed on 3 December 2007, he confirmed the second account. Cell site analysis of texts at 10.05 p.m. and 10.07 p.m. showed that he was at other woodlands a number of miles from his home. He gave different explanations for his presence in that location. 83. On 1 March 2007 he drove to a household waste recycling site, arriving before it opened. He did not disclose this visit to the police until 8 March when it was too late to recover the items he claimed to have thrown away – furniture belonging to his ex-partner. He then drove to have his car cleaned – an external wash and an internal vacuum. He retuned home and about 50 minutes later telephoned the emergency services. (d) Footmark evidence 84. We have referred at paragraph 75 to footmark evidence recovered at the deceased’s house – one set in the deceased’s blood and the other in dust. The set in the deceased’s blood was consistent with footwear which it was claimed was in the appellant’s possession but which he had not been wearing when he entered the house on 1 March 2007. The sole pattern was consistent with shoes sold at the local ASDA and other outlets between May and August 2005. The appellant’s former partner gave evidence that the pattern looked similar to size nine shoes he had bought from ASDA which were left at the rear door of the property for their use; they had been at the house when he left, but they were not found at the house when the police searched the premises. 85. The footmarks in the dust matched a pair of slippers bought by the appellant from ASDA; although there was evidence that the appellant habitually wore these slippers, they were not found on the search. (e) Other forensic evidence 86. No blood marks were found in his car or at his home; the cleaning and vacuuming of the car would not have eradicated traces of blood. (4) Conclusion on the other evidence 87. Although there was strong circumstantial evidence against the appellant, there were weaknesses in it, including: i) The crime scene had been compromised by prints from other police officers and those from the emergency services who attended. ii) It was accepted that whoever had killed the deceased would have been covered in blood. It was therefore of some significance that no traces of blood were found at the appellant’s house or in his car. iii) The time that the prosecution put forward for the appellant to have killed the deceased and been able to clean himself up and be ready to visit his friend could be said to be unrealistically short. (5) Conclusion 88. It was submitted on behalf of the appellant that the fingerprint evidence was central to the case against him. The Crown disputed this on the basis: i) It was only a part of the evidence. As is apparent from the history of the matter as we have set it out, the decision was made to prosecute the appellant prior to the fingerprint being attributed to the appellant. ii) The jury would have been left with a clear conflict on the evidence between those called on behalf of the Crown and Mr Bunter called before us on behalf of the appellant. The jury would have been unable to resolve the conflict. They would therefore have had to assess the remainder of the evidence which showed that the appellant had committed the murder. 89. Although we consider that there was a strong case based on circumstantial evidence, if the jury had heard the evidence of Mr Swann and Mr Ford, we consider that it might reasonably have affected their decision to convict, as they would have been entitled to accept their analysis. In the light of all the other evidence, the jury might in that case have decided the Crown had not made them sure of the appellant’s guilt. Although we have reached that decision solely on the basis of the fresh evidence, we would, had we been in any doubt, also have had regard to the following: i) Through no fault of the appellant, his principal fingerprint expert had not been called; the expert called was open to the substantial criticism that his opinion had not been verified by another examiner. ii) The expert reports provided by the Nottinghamshire Fingerprint Bureau in advance of the trial did not properly identify the issues for determination. iii) The presentation of the expert evidence to the jury was not prepared by the Nottinghamshire Fingerprint Bureau or by the appellant’s other expert in a way in which the jury could have realistically attempted to determine the dispute between the experts. 90. We therefore quash the conviction.

2011_05_24-2749.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1296/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1296